Gibb v. Citicorp Mortg., Inc.
| Decision Date | 15 July 1994 |
| Docket Number | No. S-92-1107,S-92-1107 |
| Citation | 518 N.W.2d 910,246 Neb. 355 |
| Parties | Patrick B. GIBB, Appellant, v. CITICORP MORTGAGE, INC., a Foreign Corporation, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Pleadings: Appeal and Error. Whether a petition states a cause of action is a question of law. Regarding such a question, an appellate court has an obligation to reach a conclusion independent of that of the inferior court.
2. Pleadings: Words and Phrases. A statement of facts sufficient to constitute a cause of action means a narrative of the events, acts, and things done or omitted which shows a legal liability of the defendant to the plaintiff.
3. Demurrer: Pleadings. In determining whether a cause of action has been stated, the petition is to be construed liberally; if as so construed it states a cause of action, a demurrer based on the failure to state a cause of action is to be overruled.
4. Demurrer: Pleadings. In considering a demurrer, a court must assume that the pleaded facts, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of facts not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial.
5. Demurrer: Pleadings: Appeal and Error. When reviewing an order sustaining a demurrer, an appellate court accepts the truth of facts well pled and the factual and legal inferences which may reasonably be deduced from such facts, but does not accept conclusions of the pleader.
6. Fraud. In order to maintain an action for fraudulent misrepresentation, a plaintiff must allege and prove the following elements: (1) that a representation was made; (2) that the representation was false; (3) that when made, the representation was known to be false or made recklessly without knowledge of its truth and as a positive assertion; (4) that it was made with the intention that the plaintiff should rely upon it; (5) that the plaintiff reasonably did so rely; and (6) that he or she suffered damage as a result.
7. Fraud. In order to maintain an action based on fraudulent concealment, a plaintiff must allege and prove the following elements: (1) that the defendant concealed or suppressed a material fact; (2) that the defendant had knowledge of this material fact; (3) that this material fact was not within the reasonably diligent attention, observation, and judgment of the plaintiff; (4) that the defendant suppressed or concealed this fact with the intention that the plaintiff be misled as to the true condition of the property; (5) that the plaintiff was reasonably so misled; and (6) that the plaintiff suffered damage as a result.
8. Fraud: Principal and Agent: Liability. A principal may be liable for the fraudulent actions of its agent.
9. Contracts: Fraud. A disclaimer clause is relevant in determining whether a claimant relied on a false representation disclaimed in the clause.
10. Contracts: Fraud. A clause that an article is taken in the condition in which it is, or in other words, "as is," is relevant in determining whether a claimant relied on a false representation concerning the condition of the article, but is not controlling.
11. Principal and Agent. Whether an act is within the scope of an agent's apparent authority is to be determined as a question of fact from all the circumstances.
12. Principal and Agent: Custom and Usage: Presumptions: Estoppel. Where a principal has, by its voluntary act, placed an agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform a particular act, and therefore deals with the agent, the principal is estopped from denying the agent's authority as against such third person.
13. Vendor and Vendee: Fraud. As between vendor and purchaser, where material facts and information are equally accessible to both, and nothing is said or done which tends to impose on the purchaser or to mislead him or her, the failure of the vendor to disclose such facts does not amount to actionable fraud.
14. Fraud. One is justified in relying upon a representation in all cases if it is a positive statement of fact and if an investigation would be required to discover the truth.
15. Fraud: Liability. An actor who, in the course of the actor's business, profession, or employment (or in any other transaction in which the actor has a pecuniary interest), supplies false information for the guidance of others in their business transactions is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if the actor fails to exercise reasonable care or competence in obtaining or communicating the information. The liability is limited to loss suffered (1) by the person or one of a limited group of persons for whose benefit and guidance the actor intends to supply the information or knows that the recipient intends to supply it; and (2) through reliance upon the information in a transaction that the actor intends the information to influence or knows that the recipient so intends, or in a substantially similar transaction. However, the liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created in any of the transactions in which it is intended to protect them.
16. Principal and Agent: Liability. The rule that a principal is liable for the contracts of its agent applies even though the agent, in contracting, acts in his or her own interests and adversely to the principal, where the party with whom the agent contracts has no knowledge of the agent's dereliction and is not cognizant of any fact charging him or her with knowledge thereof.
17. Breach of Contract: Pleadings: Proof. In order to recover for breach of contract, a plaintiff must plead and prove the existence of a promise, its breach, damage, and compliance with any conditions precedent that actuate the defendant's duty.
18. Contracts: Fraud: Election of Remedies. A party who has been induced to enter into a contract by fraud has, upon its discovery, an election of remedies; he or she may either affirm the contract and sue for damages or disaffirm it and be reinstated to the position he or she was in before the contract was consummated.
Steven J. Olson and Brian J. Siebken, of Liakos & Olson, Omaha, for appellant.
Bartholomew L. McLeay and Michael K. Bydalek, Kutak Rock, for appellee.
Through his operative petition, the plaintiff-appellant, Patrick B. Gibb, seeks, under a variety of theories, to recover damages resulting from the termite infestation of the house he purchased through an agent acting for the seller, the defendant-appellee, Citicorp Mortgage, Inc. After Citicorp successfully demurred, Gibb elected to stand on his pleading; the district court thereupon dismissed his action. Gibb then appealed to the Nebraska Court of Appeals, assigning the dismissal as error, claiming in effect that the district court erred in concluding he had failed to state a cause of action. We, on our own motion, removed the matter to this court in order to regulate the caseloads of the two appellate tribunals. We now reverse, and remand for further proceedings.
Whether a petition states a cause of action is obviously a question of law. Regarding such a question, an appellate court has an obligation to reach a conclusion independent of that of the inferior court. Bartunek v. Gentrup, 246 Neb. 18, 516 N.W.2d 253 (1994).
A statement of facts sufficient to constitute a cause of action means a narrative of the events, acts, and things done or omitted which shows a legal liability of the defendant to the plaintiff. Horton v. Ford Life Ins. Co., 246 Neb. 171, 518 N.W.2d 88 (1994); Hoiengs v. County of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994).
In determining whether a cause of action has been stated, the petition is to be construed liberally; if as so construed it states a cause of action, a demurrer based on the failure to state a cause of action is to be overruled. Id.; St. Paul Fire & Marine Ins. Co. v. Touche Ross & Co., 244 Neb. 408, 507 N.W.2d 275 (1993). A court must assume that the pleaded facts, as distinguished from legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of facts not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial. Hitzemann v. Adam, 246 Neb. 201, 518 N.W.2d 102 (1994); Hoiengs, supra.
When reviewing an order sustaining a demurrer, an appellate court accepts the truth of facts well pled and the factual and legal inferences which may reasonably be deduced from such facts, but does not accept conclusions of the pleader. Horton, supra; Durand v. Western Surety Co., 245 Neb. 649, 514 N.W.2d 840 (1994).
According to the operative petition, Citicorp acquired the house through the foreclosure of a mortgage when the mortgagee abandoned the property because of extensive termite infestation and damage and defaulted on his mortgage obligation. Citicorp's selling agent had been informed through a report of a termite service that the property in question was infested with termites and appeared to have extensive damage. The service recommended that a qualified building inspector assess the damage. However, Citicorp chose to ignore the recommendation and instead hired the service to treat the termites and "[shore] up" the visible damage to the house.
Prior to the purchase, Citicorp's selling agent showed Gibb a single area where...
To continue reading
Request your trial
-
Calabro v. City of Omaha
...993, 524 N.W.2d 336 (1994); First Nat. Bank in Morrill v. Union Ins. Co., 246 Neb. 636, 522 N.W.2d 168 (1994); Gibb v. Citicorp Mortgage, Inc., 246 Neb. 355, 518 N.W.2d 910 (1994). IV. 1. WHETHER SUPPLEMENTAL BENEFIT CONSTITUTED A PENSION The primary issue raised in this appeal is whether t......
-
Streeks, Inc. v. Diamond Hill Farms, Inc.
...we have not mentioned duty to disclose as a specific element of a fraudulent concealment claim. See, Gibb v. Citicorp Mortgage, Inc., 246 Neb. 355, 518 N.W.2d 910 (1994); Kracl v. Loseke, 236 Neb. 290, 461 N.W.2d 67 (1990); Nelson v. Cheney, 224 Neb. 756, 401 N.W.2d 472 (1987). However, in ......
-
Freeman v. Hoffman-La Roche, Inc.
...rely upon it; (5) that the plaintiff did so rely; and (6) that he or she suffered damage as a result. Gibb v. Citicorp Mortgage, Inc., 246 Neb. 355, 360, 518 N.W.2d 910, 916 (1994). We decline to adopt § 9 of the Third Restatement, and we instead apply the principles stated in In Adams v. G......
-
Teer v. Johnston
...Grube v. Daun, 173 Wis.2d 30, 496 N.W.2d 106 (1992); Clemens v. Lesnek, 200 Mich.App. 456, 505 N.W.2d 283 (1993); Gibb v. Citicorp Mortgage, 246 Neb. 355, 518 N.W.2d 910 (1994); Richey v. Patrick, 904 P.2d 798 (Wyo.1995); Black v. Cosentino, 117 Ohio App.3d 40, 689 N.E.2d 1001 (1996); Fimbe......