Gast v. Ebert, 69355

CourtUnited States State Supreme Court of Missouri
Citation739 S.W.2d 545
Docket NumberNo. 69355,69355
PartiesElizabeth GAST, et al., Plaintiffs-Appellants, v. Steve EBERT, et al., Defendants-Respondents.
Decision Date17 November 1987

W.W. Sleater, N.C. Sleater, Kirkwood, for plaintiffs-appellants.

James P. Lemonds, St. Louis, for defendants-respondents.

BILLINGS, Chief Justice.

Plaintiffs John and Gayle Gast are the parents of Elizabeth Gast, a minor, who was injured in an automobile accident. They appeal from an order of the trial court granting summary judgment to defendant Steven Ebert on plaintiffs' claim seeking rescission of a release agreement executed with defendant's insurer. The issue is whether a factual dispute exists as to the validity of the release agreement. The Court concludes that there is a genuine issue of material fact and reverse and remand.

On November 24, 1981, Elizabeth Gast was injured while a passenger in an automobile driven by Steven Ebert. Six months later, John and Gayle Gast and their minor daughter signed a written settlement agreement with Ebert's insurer, American Family Insurance in which they agreed to release their claims for $4,165.06. Two drafts totalling $3,165.06 were paid covering Elizabeth's medical expenses. Prior to receiving the additional $1,000.00 from the insurance company, Mr. and Mrs. Gast and their daughter repudiated the release agreement and filed suit against Ebert.

Elizabeth Gast, having reached her majority, sought rescission of the release agreement and damages for personal injury. She obtained summary judgment on her claim for rescission and then dismissed her damage claim without prejudice. Her claim is not involved in this appeal.

Mr. and Mrs. Gast also sought to rescind the settlement agreement, to obtain damages for medical expenses paid, and to obtain damages for the loss of their daughter's services. They alleged the agreement was the product of fraudulent misrepresentation and duress, and was unenforcable due to a failure of consideration (non-payment of the $1,000) and the failure of a condition precedent (failure to obtain court approval of the settlement). The Gasts tendered the monies for medical expenses into the registry of the court. Ebert filed a counterclaim seeking a declaration of his rights under the agreement. Both parties moved for summary judgment. The trial court granted Ebert's motion and denied plaintiffs' motion, thereby holding the Gasts to the terms of the agreement.

When reviewing a ruling on a motion for summary judgment an appellate court must scrutinize the record in the light most favorable to the party against whom the motion was filed, according to that party all reasonable inferences which may be drawn from the evidence. Zafft v. Eli Lilly & Company, 676 S.W.2d 241, 244 (Mo. banc 1984); Thompson v. Parker, 608 S.W.2d 415, 416 (Mo. banc 1980); Maddock v. Lewis, 386 S.W.2d 406, 409 (Mo.1965). Summary judgment is a drastic remedy and is inappropriate unless the prevailing party has shown by unassailable proof that he is entitled to judgment as a matter of law. Pitman Manufacturing Company v. Centropolis Transfer Company, 461 S.W.2d 866, 872 (Mo.1971); Elliott v. Harris, 423 S.W.2d 831, 835 (Mo. banc 1968); Rule 74.04(h). The burden is on the party moving for summary judgment to demonstrate that there is no genuine issue of fact. Brooks v. Cooksey, 427 S.W.2d 498, 500 (Mo.1968). A genuine issue of fact exists when there is the slightest doubt about a fact. Shepherd v. American States Insurance Company, 671 S.W.2d 777, 780 (Mo. banc 1984).

Plaintiffs seek to avoid the release agreement by claiming that they were induced to sign the document through fraudulent misrepresentation. Plaintiffs admitted that they signed the instrument and have the burden of proving its invalidity. Bogus v. Birenbaum, 375 S.W.2d 156, 160 (Mo.1964). The elements of a submissible case of fraudulent misrepresentation are:

(1) a false, material representation;

(2) the speaker's knowledge of its falsity or his ignorance of its truth;

(3) the speaker's intent that it should be acted upon by the hearer in the manner reasonably contemplated;

(4) the hearer's...

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  • Y.G. v. Jewish Hosp. of St. Louis, 57675
    • United States
    • Court of Appeal of Missouri (US)
    • July 12, 1990
    ...set aside the order if it is sustainable on any theory. Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 242-3 (Mo. banc 1984); Gast v. Ebert, 739 S.W.2d 545, 546 (Mo.1987). If a genuine issue of material fact exists, summary judgment is inappropriate. An issue of fact is material if it has "... l......
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    ...relied upon to his detriment. See Volker Court, LLC v. Santa Fe Apartments, LLC, 130 S.W.3d 607, 612 (Mo.App.2004), citing Gast v. Ebert, 739 S.W.2d 545, 547 (Mo. banc 1987). Unlike negligent misrepresentation, "a promise accompanied by a present intent not to perform is a misrepresentation......
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    ...the falsity of the statement; (5) the hearer's reliance on its truth, and the right to rely thereon; and (6) proximate injury. Gast v. Ebert, 739 S.W.2d 545, 547 (Mo. banc 1987); Sofka v. Thal, 662 S.W.2d 502, 506 (Mo. banc 1983). Plaintiff has adequately pleaded these In addition, defendan......
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