Berman v. Regna

• Citation: 728 S.W.2d 285
• Decision Date: 24 February 1987
• Docket Number: No. 50677,50677
• Parties: Diane M. BERMAN, Plaintiff-Respondent, v. Joyce REGNA, et al., Defendants-Appellants.
• Court: Court of Appeal of Missouri (US)

Page 285

728 S.W.2d 285

Diane M. BERMAN, Plaintiff-Respondent, v. Joyce REGNA, et al., Defendants-Appellants.

No. 50677.

Missouri Court of Appeals,

Eastern District,

Division Two.

Feb. 24, 1987.

Motion for Rehearing and/or Transfer Denied March 25, 1987.

Application to Transfer Denied May 19, 1987.

Stephen C. Murphy, Clayton, for defendants-appellants.

Susan H. Mello, Clayton, for plaintiff-respondent.

SMITH, Presiding Judge.

Defendant Bomar Real Estate Company appeals from a judgment against it of $12,000 actual damages and $1,000 punitive damages based upon a jury verdict in an action for fraudulent misrepresentation. We reverse.

Plaintiff purchased a residence in St. Louis County in August 1979 from Joyce Regna and Gary Weirich, sister and brother. The property was listed through defendant Bomar as the agent. Kay Wickiser was the saleswoman who handled the sale. She was no longer with defendant Bomar at the time of trial. Plaintiff viewed the property on two occasions with Wickiser and directed her to prepare a sale contract contingent on F.H.A. financing. While in the office plaintiff inquired about having a termite inspection done. She was advised by Wickiser that she could have her own done but that one would be done for F.H.A. because they would not approve the financing without it. Plaintiff, for financial reasons, opted to rely upon the inspection done for F.H.A. Wickiser made arrangements for the inspection with Midwestern Pest Control.

In her petition plaintiff alleged that the report submitted by Midwestern indicated no present or past termite infestation and that defendant knew or should have known that in fact the premises had active and prior termite infestation. A copy of the report from Midwestern was attached to the petition but was never introduced into evidence at trial. Within a week after moving into the residence plaintiff discovered extensive termite infestation and damage. She then brought this action against the sellers, Bomar, and Midwestern Pest Control. She subsequently dismissed Midwestern because of "limitation problems" not otherwise identified or discernible from the record. The jury found in favor of the sellers, and in favor of Bomar on a second count based upon breach of fiduciary duty in failing to provide all material information it had concerning the premises. Plaintiff has not appealed those verdicts. The theory of recovery submitted upon which the verdict was returned against Bomar required a finding that defendant "represented that the residence was suitable for residential use as intended by plaintiff and not subject to prior termite damage." This theory is one of affirmative misrepresentation as contrasted to a duty-violative failure to disclose which is the theory of plaintiff's second count against Bomar upon which the jury found for Bomar. See Maples v. Charles Burt Realtor, Inc., 690 S.W.2d 202 (Mo.App.1985) 1.c. 208.

Bomar challenges the submissibility of plaintiff's case. We must review the evidence in the light most favorable to plaintiff and give her all favorable inferences which may be drawn therefrom. Franklin v. Mercantile Trust Company, N.A., 650 S.W.2d 644 (Mo.App.1983) . There are nine elements to a fraud case which have been frequently set forth and need not be repeated in entirety. They include a representation, its falsity, the speaker's knowledge of its falsity or of its truth, and reliance. See Sofka v. Thal, 662 S.W.2d 502 (Mo. banc 1983) . Fraud is never presumed and each element must be supported by evidence which points logically and convincingly to the conclusion of fraudulent misrepresentation. Brown v. Pritchett, 633 S.W.2d 294 (Mo.App.1982) .

It should first be noted that plaintiff's evidence and trial theory varied considerably from her petition. From the petition as a whole it is apparent that plaintiff was alleging that all defendants had conspired to obtain a termite report showing the residence to be "clean" when all in fact knew it was not. There was no evidence at trial to support this theory. Instead at trial plaintiff attempted to establish that the sellers and Bomar in an affirmative way led her to believe that the structure was termite free. She never, however, directly asked the question, nor did any defendant represent that the home was free of termite infestation and damage.

Plaintiff asked Wickiser about certain indentations she noticed in the doors and walls. Wickiser "led her to believe" these resulted from marital arguments of the occupants. There was no evidence that the noted indentations were signs of termite damage, that they were not the result of marital rows, or that Wickiser was untruthful in her answer. At the time of preparation of the sale contract, plaintiff asked Wickiser about having a termite inspection made. Wickiser replied that plaintiff could have one made at her expense but that in any event one would be made as a pre-condition to F.H.A. approval of the financing. The evidence clearly demonstrates that these statements...