French v. Jochens, 45384

• Decision Date: 02 November 1982
• Docket Number: No. 45384,45384
• Citation: 642 S.W.2d 677
• Parties: Peter FRENCH, et al., Plaintiffs-Appellants, v. William JOCHENS, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 677

642 S.W.2d 677

Peter FRENCH, et al., Plaintiffs-Appellants, v. William JOCHENS, et al., Defendants-Respondents.

No. 45384.

Missouri Court of Appeals,

Eastern District,

Division Two.

Nov. 2, 1982.

David M. Duree, Leritz & Reinert, P.C., St. Louis, for plaintiffs-appellants.

Joseph Mueller, St. Louis, for defendants-respondents.

DOWD, Judge.

Plaintiffs appeal from the trial court's order dismissing Count III of the petition for failure to state a claim upon which relief can be granted.

Plaintiffs filed a petition in two counts against William Jochens and St. Louis County Roofing Company. Count I alleged defendants negligently constructed plaintiffs' roof, causing damages of $20,000. Count II alleged defendants breached their implied warranty to construct the roof in a good and workmanlike manner. With leave of court, plaintiffs added County Roofing and Insulation Company, Inc. as a party defendant and amended the petition by adding Count III. Count III sought actual and punitive damages for defendants' fraudulent misrepresentation that they were covered by property damage and liability insurance. On December 9, 1981, the trial court sustained the separate motion of defendants Jochens and St. Louis County Roofing Company to dismiss Count III for failure to state a claim against them. Plaintiffs then filed alternative motions asking the court (1) to reconsider its ruling on defendants' motion to dismiss, (2) to grant plaintiffs leave to amend Count III, (3) to state the reason for dismissal of Count III, or (4) to designate the order of December 9 as final and appealable pursuant to Rule 81.06. On January 19, 1982, the trial court overruled plaintiffs' motion to reconsider and designated the December 9 order as final and appealable.

On appeal plaintiffs contend the trial court erred in dismissing Count III in that it stated a cause of action for fraudulent misrepresentation upon which relief can be granted. Plaintiffs also allege error in the trial court's refusal to identify any deficiencies in Count III and its refusal to grant leave to amend.

Count III of the petition incorporated the allegations of Counts I and II that, inter alia, defendants constructed a roof for plaintiffs, who paid defendants in full; thereafter the roof leaked, causing extensive damage to the roof and the building. Count III further alleged the following. To induce plaintiffs to hire defendants to perform the roof work, defendants represented that they were "fully covered by property damage and liability insurance." Defendants knew at the time they were not so covered. Plaintiffs relied upon defendants' representations and as a result suffered damages in the amount of $20,000. For defendants' willful and malicious actions, plaintiffs asked $50,000 punitive damages.

In reviewing the dismissal of a petition for failure to state a claim, we construe the petition most favorably to plaintiff; we grant it every reasonable intendment in light of the facts alleged and the inferences fairly deducible therefrom. Schimmer v. H.W. Freeman Construction Co., 607 S.W.2d 767, 769, 770 (Mo.App.1980). If the allegations invoke principles of substantive law which would entitle plaintiff to relief, the petition is not to be dismissed. Id. at 769.

Under Rule 55.15, all averments of fraud must state with particularity the circumstances constituting fraud, although malice, intent, or other states of mind may be averred generally. Huttegger v. Davis, 599 S.W.2d 506 (Mo. banc 1980), enumerates the elements of fraudulent...