Grosser v. Kandel-Iken Builders, Inc., KANDEL-IKEN

CourtCourt of Appeal of Missouri (US)
Writing for the CourtPER CURIAM
Citation647 S.W.2d 911
Docket NumberNo. 44932,KANDEL-IKEN
Decision Date22 February 1983
PartiesLarry GROSSER, et al., Plaintiffs-Respondents, v.BUILDERS, INC., Defendant-Appellant.

Page 911

647 S.W.2d 911
Larry GROSSER, et al., Plaintiffs-Respondents,
v.
KANDEL-IKEN BUILDERS, INC., Defendant-Appellant.
No. 44932.
Missouri Court of Appeals,
Eastern District,
Division One.
Feb. 22, 1983.

Page 913

Rosenblum, Goldenhersh, Silverstein & Zafft, P.C., Richard S. Bender, Clayton, for defendant-appellant.

Homer N. Mastorakos, Chesterfield, for plaintiffs-respondents.

PER CURIAM.

Plaintiffs-respondents, homeowners in Conway Forest Subdivision in St. Louis County, sued the developer, defendant-appellant Kandel-Iken Builders, Inc. for fraudulent misrepresentation. Plaintiffs charged generally that defendant falsely represented that it would build a swimming pool for the residents' use after eighty-five of the planned 130 homes were sold. The eighty-fifth house was sold sometime prior to January 1, 1977. No pool was ever built.

The original petition was filed on August 25, 1977 as a class action. On July 8, 1980 the trial court ordered the suit to proceed as a class action on behalf of "all persons who were and are purchasers and owners of real estate located in Conway Forest Subdivision." The subdivision here contained four stages (plats). After notice of the order was duly published as prescribed by Rule 52.08(c)(2), twenty-one homeowners signed disclaimers. On December 23, 1980, plaintiffs filed a third amended petition which alleged that they fairly represented the homeowners in Stages I and II (approximately sixty-five homes) as representative parties, and that defendant falsely represented orally and in writing to the class of plaintiffs that they would construct a swimming pool as a part of the planned recreational facilities of the subdivision. The trial court was not called upon to re-determine the class after the third amended petition was filed.

The case was tried as a class action and resulted in a jury verdict in favor of plaintiffs, as a class, in the amount of $51,300 actual damages and $10,000 punitive damages.

Defendant argues that plaintiffs failed to make a submissible case of proof of fraudulent misrepresentation and damages. Defendant also contends that plaintiffs failed to meet their burden of proof pursuant to Rule 52.08 that there were questions of law and fact common to the members of the class, and thus the class was improperly certified.

Defendant prepared and filed of record Indentures of Trust and Restrictions on December 10, 1971. Sales of homes began in January, 1972 and continued through 1980. The named plaintiffs purchased homes in Stage I of the subdivision, in 1972 and 1973. Defendant withdrew any mention of a pool after a meeting of property owners sometime in 1976.

Plaintiffs' documentary evidence consisted of the Indentures of Trust, a sales brochure, and nine real estate sales contracts. The Indentures of Trust failed to mention a swimming pool, while the brochure described a "swimming pool" as a "special feature" of the subdivision. Two of the sales contracts offered into evidence contained statements that defendant "would construct at no capital cost to purchaser a swimming pool to be available no sooner than the summer following sale of the eighty-fifth Conway Forest lot." One contract stated that a subdivision pool was to be started when 75% of the homes in the subdivision were completed. The remaining contracts made no mention of a swimming pool.

Plaintiffs' witnesses testified that they had observed the brochure which mentioned a swimming pool. Some witnesses said that they were told the pool would be built on common ground. According to the witnesses, defendant never indicated the size or dimensions of the pool to be constructed, the exact date of construction or the precise location of the pool. They stated that they had no reason to believe defendant's statement of intention to build a swimming pool was false when made.

Defendant's president, Mr. Kandel, testified that at all times he intended to build a swimming pool. His original plan was to build a pool that he or others would own and make available to the subdivision residents. A study ordered by Kandel concluded, however, that such an arrangement

Page 914

would be economically unfeasible. Kandel's second plan was for the residents to maintain the swimming facility through assessments provided for in the Indentures of Trust. He concluded that to maintain the pool, the Indentures would have to be amended to permit an assessment of $250 per year in place of the original assessment of $75 per year. After the homeowners were notified of the plan they voted to reject the amendment to increase the assessments. Kandel testified that at all times he was willing to build a pool and would do so if the residents would approve the amendment so as to provide sufficient funds to maintain the pool. After the property owners' vote, however, he discontinued the representation that he would build a swimming pool.

We first consider the question of whether plaintiffs made a submissible case of fraudulent misrepresentation. We hold that they did not and that the trial court erred in failing to direct a verdict at the close of all the evidence. In so holding, we view the evidence in the light most favorable to the plaintiffs and give them the benefit of all reasonable, favorable inferences. Snodgrass v. Headco Industries, Inc., 640 S.W.2d 147, 156 (Mo.App.1982).

Plaintiffs must present sufficient evidence to reasonably support each element of its cause of action. Smith v. Archbishop of St. Louis ex rel. Archdiocese of St. Louis, 632 S.W.2d 516, 521 (Mo.App.1982). Further, the evidence to support an inference of fraud must arise above mere suspicion and point logically and convincingly to that conclusion. Brown v. Pritchett, 633 S.W.2d 294 (Mo.App.1982). All doubt should be entertained in favor of good faith in determining whether a statement constitutes a misrepresentation. Empire Gas Corporation v. Small's LP Gas Co., 637 S.W.2d 239, 243 (Mo.App.1982).

Plaintiffs' theory required them to prove that defendant's statement of intention was false when made. A false statement of present purpose may under some circumstances be a misstatement of fact and will support a cause of action for fraudulent misrepresentation. Citizens Bank of Windsor v. Landers, 570 S.W.2d 756, 761 (Mo.App.1978); Brennaman v. Andes & Roberts Brothers Construction Co., 506 S.W.2d 462, 465 (Mo.App.1973). However, the giving of a promise, even though breached the next day, is not such a fraudulent misstatement of fact as will support an action for fraud. Parthenopoulos v. Maddox, 629 S.W.2d 563, 568 (Mo.App.1981); McGuire v. Bode, 607 S.W.2d 165, 167 (Mo.App.1980); Klecker v. Sutton, 523 S.W.2d 558, 562 (Mo.App.1975). There must be proof of a current intention not to perform and a failure of performance is insufficient to establish this intent or to shift the burden of proof. Dillard v. Earnhart, 457 S.W.2d 666, 671 (Mo.1970); Brennaman, 506 S.W.2d at 465.

A false representation of intention is actionable if the statement is reasonably interpretable as expressing a firm intention. Dillard, 457 S.W.2d at 670. Therefore, as in Dillard, we must measure the nature and probative value of the evidence adduced at trial to determine first whether defendant made the required representation, and second, whether plaintiffs demonstrated defendant's intention not to perform at the time of the representation. See Brennaman, 506 S.W.2d at 465.

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15 practice notes
  • Woods v. Wills, No. 1:03-CV-105 CAS.
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • November 18, 2005
    ...be a misstatement of fact and will support a cause of action for fraudulent misrepresentation." Grosser v. Kandel-Iken Builders, Inc., 647 S.W.2d 911, 914 (Mo.Ct.App.1983) (citations omitted). "However, the giving of a promise, even though breached the next day, is not such a fraudulent mis......
  • Craft v. Metromedia, Inc., Nos. 84-1336
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 19, 1985
    ...is no misrepresentation of fact or state of mind but only a breach of promise or failure to perform. See Grosser v. Kandel-Iken Builders, 647 S.W.2d 911, 914 (Mo.Ct.App.1983); Brennaman v. Andes & Roberts Brothers Construction Co., 506 S.W.2d 462, 465 (Mo.Ct.App.1973). It is not enough if f......
  • Chesus v. Watts, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • March 3, 1998
    ...favor of either party depending upon the credibility and weight given to plaintiff's evidence. In Grosser v. Kandel-Iken Builders, Inc., 647 S.W.2d 911, 913--14 (Mo.App.1983), the Page 113 claim was misrepresentation by the builder of a promise made years earlier in a brochure to build a sw......
  • Emerick v. Mutual Ben. Life Ins. Co., No. 69420
    • United States
    • Missouri Supreme Court
    • July 26, 1988
    ...anticipated. There must be an inconsistent intent to perform at the time the representation was made. Grosser v. Kandel-Iken Builders, 647 S.W.2d 911, 914 The most that respondent has shown by the evidence is that appellant changed its mind in the way it would deal with respondent after Mr.......
  • Request a trial to view additional results
16 cases
  • Woods v. Wills, 1:03-CV-105 CAS.
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • November 18, 2005
    ...be a misstatement of fact and will support a cause of action for fraudulent misrepresentation." Grosser v. Kandel-Iken Builders, Inc., 647 S.W.2d 911, 914 (Mo.Ct.App.1983) (citations omitted). "However, the giving of a promise, even though breached the next day, is not such a fraudulent mis......
  • Craft v. Metromedia, Inc., s. 84-1336
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 19, 1985
    ...is no misrepresentation of fact or state of mind but only a breach of promise or failure to perform. See Grosser v. Kandel-Iken Builders, 647 S.W.2d 911, 914 (Mo.Ct.App.1983); Brennaman v. Andes & Roberts Brothers Construction Co., 506 S.W.2d 462, 465 (Mo.Ct.App.1973). It is not enough if f......
  • Chesus v. Watts, WD
    • United States
    • Court of Appeal of Missouri (US)
    • March 3, 1998
    ...favor of either party depending upon the credibility and weight given to plaintiff's evidence. In Grosser v. Kandel-Iken Builders, Inc., 647 S.W.2d 911, 913--14 (Mo.App.1983), the Page 113 claim was misrepresentation by the builder of a promise made years earlier in a brochure to build a sw......
  • Emerick v. Mutual Ben. Life Ins. Co., 69420
    • United States
    • United States State Supreme Court of Missouri
    • July 26, 1988
    ...anticipated. There must be an inconsistent intent to perform at the time the representation was made. Grosser v. Kandel-Iken Builders, 647 S.W.2d 911, 914 The most that respondent has shown by the evidence is that appellant changed its mind in the way it would deal with respondent after Mr.......
  • Request a trial to view additional results

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