Green v. Green, 41916.

Decision Date17 October 1980
Docket NumberNo. 41916.,41916.
Citation606 S.W.2d 395
PartiesLona GREEN, Plaintiff-Appellant, v. Phillip GREEN and Sidney Rich Associates, Inc., a corporation, Defendants-Respondents.
CourtMissouri Court of Appeals

Shaw, Howlett & Schwartz, James J. Knappenberger, St. Louis, for plaintiff-appellant.

Michael Rose, Theodore F. Schwartz, Clayton, for defendants-respondents, Sidney Rich.

Motion for Rehearing and/or Transfer to Supreme Court Denied October 17, 1980.

WEIER, Presiding Judge.

Lona Green filed suit against her former husband Phillip Green in which she sought to compel Phillip to account to her for the assets described in her petition which she contends were jointly owned by plaintiff and defendant during their marriage. She further sought to have a settlement agreement dated February 19, 1975, to be declared invalid as to assets listed in this agreement; that stocks and insurance policies unnamed but currently registered in the names of plaintiff and defendant be converted to cash and that she receive her interest therein; that Lona be adjudged to be the joint owner of a certain tract of land she had previously agreed to convey to the husband in the settlement agreement; and that the home which she occupied, the title to which remained in both names, be awarded to her and that she further be adjudged co-owner of all real and personal property which an accounting would disclose and that the court thereupon order a sale and the proceeds be divided between the two of them. In Count II of her third amended petition after re-alleging the allegations directed toward Phillip by reference, she averred she contributed financially to newly joined defendant Sidney Rich Associates, Inc. She then sought a determination of the value of her work and assets that she had contributed upon which to base an award to compensate her, "quantum meruit." She prayed for an accounting with Sidney Rich Associates, Inc., in order to determine the proportionate share that she had in that company and to award her this share.

Upon the submission of a motion to dismiss the third amended petition as to Phillip Green for failure to obey the prior order of the court and for failure to state a claim upon which relief could be granted, the court dismissed the petition as to this defendant without prejudice. If either of the grounds asserted for dismissal is valid the trial court's order dismissing the petition must be affirmed. Butler v. Circulus, Inc., 557 S.W.2d 469, 471 1 (Mo.App.1977). We first consider the propriety of the court's action in dismissing the action as to Phillip Green on the ground of the failure of plaintiff to make the petition more definite and certain.

The motion of defendant Phillip Green to make more definite and certain was particularly directed to allegations of fraud contained in plaintiff's third amended petition. The complaint was made that the amended petition did not set forth with particularity the circumstances constituting the fraud. Rule 55.15 requires that this standard be met on all averments of fraud. The only exception under the rule pertains to averments of malice, intent, knowledge and any other condition of mind. These conditions may be set forth generally. In looking at the last, or third amended petition, we note that it is charged the defendant, by and through his attorneys, caused to be prepared the separation agreement "and by fraud, undue influence, misrepresentation and deception did induce Plaintiff to sign an agreement by not revealing their assets and his assets to Plaintiff and understating the value of those that he did reveal to Plaintiff." The petition then speaks about conversion of certain asserts by defendant Phillip Green. It is then alleged that the statements and omissions inducing plaintiff to sign the agreement were false or made with actual knowledge of their truth and falsity and were made with intent they be acted upon and further that the statements were made "while the parties were in such position and the Defendant had such knowledge that the Plaintiff was entitled to rely upon the statements then made to her by the Defendant." The next paragraph alleges that the "actions and omissions" of the defendant in obtaining the contract and in converting the assets to his own use were done as a result of "undue influence" over plaintiff due to a "lack of capacity and his superior knowledge as to the state of the business affairs at the time, and as a result, performed a fraud upon the marital rights of the Plaintiff ..." Plaintiff then alleges that the separation agreement did not dispose of other assets which the parties jointly held or had joint interest but that these were converted to defendant's own use wrongfully and fraudulently and as a result of misrepresentation and undue influence. In this connection it is stated "said misrepresentations and dealings dealt with material matters and were under circumstances under which Plaintiff had a right to rely on the purported good faith, representations and business dealings of Defendant." Other allegations have no bearing upon the fraud accusations but pertain to a refusal of defendant to allow plaintiff to have access to and to account to plaintiff for certain assets and that the defendant has "converted joint bank account and checking accounts to his own name."

As previously indicated, plaintiff has sought equitable relief on the basis of fraud and misrepresentation. The elements of a fraud action that must be pleaded and proved are "a representation, its falsity, its materiality, speaker's knowledge of the falsity, his intent that his statement should be acted upon by the other party and in the manner contemplated, that party's ignorance of the falsity, his reliance on its truth, his right to rely thereon, and his consequent injury." Troxell v. Troxell, 563...

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11 cases
  • Hanrahan v. Nashua Corp., 53608
    • United States
    • Missouri Court of Appeals
    • May 3, 1988
    ...alleged representations were made, nor what individuals made such representations and whether they had authority. See Green v. Green, 606 S.W.2d 395, 398 (Mo.App.1980); Miller v. Ford Motor Co., 732 S.W.2d 564, 566 Furthermore, plaintiff has failed to allege facts showing a causal connectio......
  • Wieners v. Miller
    • United States
    • Missouri Court of Appeals
    • December 28, 1984
    ...Benson v. Geller, 619 S.W.2d 947, 948 (Mo.App.1981); Scott v. Gibbons, 611 S.W.2d 387, 388 (Mo.App.1981); Green v. Green, 606 S.W.2d 395, 397 (Mo.App.1980); Vangilder v. City of Jackson, 492 S.W.2d 15, 18 "The elements of fraud are: 1) a representation, 2) its falsity, 3) its materiality, 4......
  • Green Acres Enterprises, Inc. v. Nitsche
    • United States
    • Missouri Court of Appeals
    • June 22, 1982
    ...fraud. Weitzman v. Weitzman, 156 S.W.2d 906, 908 (Mo.1941). These essential elements have been recently restated in Green v. Green, 606 S.W.2d 395, 397-98 (Mo.App.1980) wherein the court declared, "The elements of a fraud action that must be pleaded and proved are 'a representation, its fal......
  • Lincoln Steel, Inc. v. Mid-Continent Nat. Bank
    • United States
    • Missouri Court of Appeals
    • December 7, 1982
    ...fraud" that the law requires of a pleading which invokes that ground for substantive relief. Rule 55.15; Green v. Green, 606 S.W.2d 395, 397[1, 2] (Mo.App.1980). Nor do the facts gleaned from the memorandum subscribed by oath aid to supply that deficiency. The authorities cited by the Chapm......
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1 books & journal articles
  • Section 24.40 Pleading Rules Under § 472.013
    • United States
    • The Missouri Bar Estate Administration Deskbook Chapter 24 Actions for Fraud Under the Probate Code
    • Invalid date
    ...by alleging the facts actually constituting the fraud, independently of conclusions. See Rules 55.05 and 55.15; Green v. Green, 606 S.W.2d 395, 397–98 (Mo. App. E.D. 1980). In particular, see In re Estate of Caldwell, 794 S.W.2d 257, 264 (Mo. App. E.D. 1990), in which the Eastern District h......

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