Huttegger v. Davis

• Decision Date: 13 May 1980
• Docket Number: No. 61574,61574
• Citation: 599 S.W.2d 506
• Parties: Robert HUTTEGGER and Kathleen Huttegger, Plaintiffs-Respondents, v. Wilma R. DAVIS, d/b/a Town N' Country Real Estate and Dickherber Electric, Inc., Employees Retirement Trust, Defendants-Appellants.
• Court: Missouri Supreme Court

Page 506

599 S.W.2d 506

Robert HUTTEGGER and Kathleen Huttegger, Plaintiffs-Respondents, v. Wilma R. DAVIS, d/b/a Town N' Country Real Estate and Dickherber Electric, Inc., Employees Retirement Trust Defendants-Appellants.

No. 61574.

Supreme Court of Missouri, En Banc.

May 13, 1980.

Rehearing Denied June 10, 1980.

Joseph J. Dolgin, Clayton, Melvin D. Benitz, St. Charles, for defendants-appellants.

W. Morris Taylor, Clayton, for plaintiffs-respondents.

HIGGINS, Judge.

Robert and Kathleen Huttegger sued Wilma R. Davis, doing business as Town N' Country Real Estate and Dickherber Electric, Inc., Employees Retirement Trust for fraudulent misrepresentation in the sale of real estate. The jury awarded $1,178.00 actual damages against both defendants and punitive damages of $3,000.00 against defendant Davis and $7,000.00 against Dickherber. The appeal was transferred from the court of appeals, after opinion, to review whether plaintiffs made a submissible case on their cause of action. Reversed.

The determination whether plaintiffs made their case requires the Court to view the evidence that bears upon the elements of fraud in the light most favorable to plaintiffs, and give them the benefit of all reasonable inferences to be drawn from the evidence. Ackmann v. Keeney-Toelle Real Estate Co., 401 S.W.2d 483, 488 (Mo. banc 1966). To this end the facts of this case will be taken substantially as stated by respondents.

Plaintiffs Robert Huttegger and Kathleen Huttegger live in High Country Estates near the City of Foley, Lincoln County, Missouri. In the summer of 1971 they lived in St. Louis County, Missouri, and in early August of that year they visited High Country Estates in an effort to find a home site. Defendant Davis was a real estate broker and sole proprietor of Town N' Country Real Estate Company, which engaged "in the sale of, promotion or development of real estate projects" for various companies, including defendant Dickherber Electric Inc., Employees Retirement Trust. When the Hutteggers went to High Country Estates they observed a sign on the land containing the name, "Town N' Country Real Estate" and the words, "Water and Electric". Plaintiffs also saw two other signs ¹ in the same area advertising lots for sale. Some time thereafter, plaintiffs called Town N' Country Real Estate and talked to salesman, Mickey Owen. Plaintiffs were shown the lot by Mickey Owen and were advised that the purchase price was $2,460.00. Plaintiffs entered into a contract with Town N' Country Real Estate for the purchase of this lot on August 29, 1971. Prior to buying the lot, plaintiffs inquired of Mr. Owen and defendant Davis as to the availability of water for the subdivision since they planned to build a home on the lot. Both Owen and Davis told the plaintiffs that water service was in the process of being installed and that it would be available when they were ready to build their home. On the night of closing, plaintiffs again asked defendant Davis about the water and she assured them that the water would be available. She stated that "Mr. Dickherber was taking care of this and pipes were being brought out for the lines and that they were going to be turned over and they were going to be ready to be turned over." In May of 1973, plaintiffs entered into a contract to have the home built on the lot and made application to obtain water from the public district. At that time, plaintiffs were told by the district that no water was then available due to a lack of water supply, that the district was utilizing its full capacity, and that no new customers could be serviced. After plaintiffs' request for water hookup was denied, they contacted defendant Davis and asked her to assist in obtaining water. She advised that she would contact Mr. Dickherber and see if he could remedy the situation. Plaintiffs stated they would not have purchased the lot in High Country Estates had they known that public water would not be available.

Thereafter, plaintiffs decided to build a well and agreed to go half and half with a neighbor in building the well. They contracted with Flynn Drilling Company to drill the well; the total cost to the plaintiffs was $1,178.00. Plaintiffs' home was completed in late August, 1973 and they occupied it in September, 1973.

All witnesses called by the plaintiffs, including defendants Davis and Dickherber, testified that plaintiffs did not speak directly to any employee of the Dickherber Trust before signing the sale contract; that the first time plaintiffs ever met anyone from Dickherber Trust was at a subdivision meeting in 1974 or 1975. However, plaintiffs were aware they were purchasing the property from Dickherber Electric because defendant Davis advised plaintiffs that she would talk to Mr. Dickherber about carrying the note on the property for a few months until they could obtain financing. Defendant Dickherber's name also appeared on the sale contract.

Plaintiffs read into the record interrogatories to defendants Wilma R. Davis and Dickherber Electric and answers thereto. Interrogatories to defendant Wilma R. Davis:

Question No. 10: Please state whether you or any of your agents or representatives ever represented to the general public that they would be able to obtain public water supply hook ups on the real estate purchased by the public, and state the following:

a. When said representations were made.

b. Who was present when said representations were made.

c. Where said representations were made.

d. At whose directions and authority said representations were made.

Answer: Yes.

a. Many times and places.

b. Many people.

c. Many places.

d. Eugene Dickherber.

Question No. 11: State whether or not you knew if public water supply hookups were available to the lots on High Country Estates, Lincoln County, Missouri, in August, 1971, and if you knew water hookups were available state:

a. From whom you learned this.

b. The exact date learned.

c. In what manner this information was conveyed to you.

Answer: I thought I knew it.

a. Mr. Dickherber.

b. Late 1970 or early 1971.

c. Verbally and later on a listing.

Interrogatories directed to Defendant Dickherber:

Question No. 9: Please state whether Dickherber Electric, Inc., or any of its agents or representatives has ever represented to Plaintiffs herein that they would be able to obtain public water supply hookups on the real estate purchased by Plaintiffs as set forth in Plaintiffs' petition, and state the following:

a. When said representations were made.

b. By whom said representations were made.

c. Who was present when said representations were made.

d. Where said representations were made.

e. At whose direction and authority said representations were made.

Answer: No agent or employee of Dickherber Electric, Inc.'s Retirement Trust ever met or talked with Plaintiffs prior to their purchase of real estate.

Question No. 12: Please state the names and present addresses of the owners of High Country Estate development as of August, 1971.

Answer: Dickherber Electric, Inc., Employees Retirement Trust, 1708 South Fifth Street, St. Charles, Missouri 63301, as to those platted lots not sold.

Eugene Dickherber, called as plaintiffs' witness, stated that in 1971 the Dickherber Trust owned a certain piece of real estate in Lincoln County known as High Country Estates and that Lot 15 which was purchased by plaintiff was a part of the property developed there. He did not recognize the sign depicted in Plaintiffs' Exhibit No. 1 which advertised lots for sale in High Country Estates. He did not recall having a sign erected at High Country Estates advertising the sale of lots. However, after having his memory refreshed by his answer to Plaintiff's Interrogatory No. 10, he admitted placing a sign advertising High Country Estates at its entrance, caused a sign to be installed advertising High Country Estates and also stating that there would be water and electric. In the winter of 1970, Dickherber met with the Board of Trustees of Water District No. 1 to present plans and specifications concerning the supply of water for the Sand Hill Road area in High Country Estates. At the time he appeared before the board, the District supplied water for a distance of 80 miles (of pipe). However, Eugene Chapman, manager of the public water supply district, stated that at the time Dickherber appeared before the board, the district serviced approximately 100 miles of pipe. It was Dickherber's understanding that the total capacity at the time he appeared before the board was approximately 400 or 500 hookups for the whole district. At the time that he applied for hookups for High Country Estates, it was his understanding that there were approximately 100 more hookups available for the total water district and not just for High Country Estates. Additional testimony by Dickherber in plaintiffs' case showed that in January or February of 1971 he received a letter from the Department of Health which stated that the capacity of the water supply was approximately another 100 hookups and that expansion was planned. After the summer of 1971, Dickherber did not check with the water district to ascertain what capacity the district had remaining or the number of hookups available. However, Dickherber testified that prior to August 29th, he knew that there was a limit to the number of people who could get hookups on the line. Dickherber did not indicate on his advertising sign at High Country Estates that the number of water hookups was limited.

Defendant Wilma Davis, called by plaintiffs, testified that she told them that public water would be installed because she had contacted Eugene Dickherber and he told her that he had contacted the water district and he was installing lines for water. She was aware of the fact that the plaintiffs were buying the property to build a house on and assured plaintiffs that they would be able to obtain public hookup when their house was built....