Maples v. Porath, No. 12155

CourtMissouri Court of Appeals
Writing for the CourtFLANIGAN; GREENE, P. J., and TITUS
Citation638 S.W.2d 337
PartiesRobert MAPLES and Shirley Maples, Plaintiffs-Appellants, v. Richard PORATH and Mary Porath, et al., Defendants-Respondents.
Docket NumberNo. 12155
Decision Date18 August 1982

Page 337

638 S.W.2d 337
Robert MAPLES and Shirley Maples, Plaintiffs-Appellants,
v.
Richard PORATH and Mary Porath, et al., Defendants-Respondents.
No. 12155.
Missouri Court of Appeals,
Southern District,
Division One.
Aug. 18, 1982.

Glenn R. Gulick, Jr., Hershewe & Gulick, Joplin, for plaintiffs-appellants.

James E. Brown, Joplin, for defendants-respondents.

FLANIGAN, Judge.

On July 10, 1978, plaintiffs Robert Maples and Shirley Maples, as buyers, and defendants Richard Porath and Mary Porath, as sellers, entered into a contract for the sale of a residence located at 2407 Montana

Page 338

Place, Joplin, Missouri. Acting as agent for the sellers was defendant Charles Burt Realtors, Inc., ("Burt"). After the contract was performed and plaintiffs had taken possession, they discovered "termite infestation and termite damage." Plaintiffs filed an action in fraud against six defendants including the sellers and the realtor.

The original petition was filed in January, 1979. After discovery had been conducted plaintiffs filed a first amended petition in May 1979. Count I and Count II of that petition were directed against the sellers and the realtor. The order of the trial court held that neither Count I nor Count II stated a claim upon which relief can be granted against the sellers or the realtor, sustained their respective motions to dismiss and designated its order as a final judgment for purposes of appeal. Plaintiffs appeal.

Plaintiffs contend that the trial court erred in sustaining the motion to dismiss filed by realtor Burt for the reason that the first amended petition did state a claim for relief against that defendant. Count I of the petition sought $30,000 in actual damages and Count II, which incorporated the allegations of count I, sought $150,000 in punitive damages.

The initial inquiry is whether Count I states a claim against the realtor.

"Where a petition is attacked by a motion to dismiss for failure to state a claim, the mere conclusions of the pleader are not admitted. But the facts alleged are taken to be true and the pleader is entitled to all favorable inferences fairly deducible therefrom. If such facts and such inferences, viewed most favorably from plaintiff's standpoint, show any ground for relief, the petition should not be dismissed. If the allegations of the petition invoke principles of substantive law which may entitle the plaintiff to relief, the petition is not to be dismissed. A petition is not to be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. The ruling on a motion to dismiss is ordinarily confined to the face of the petition which is construed in a light favorable to plaintiff." American Drilling v. City of Springfield, 614 S.W.2d 266, 271[2-4] (Mo.App.1981). (Citing authorities).

Under Missouri procedure a party may set forth two or more statements of a claim alternately, either in one count or in separate counts. When two statements are made in the alternative and one of them, if made independently, would be sufficient, the pleading is not made insufficient by the insufficiency of the alternative statement. A party may also state separate claims "regardless of consistency." Rule 55.10. 1

"[T]he elements of actionable fraud consist of: (1) A representation. (2) Its falsity. (3) Its materiality. (4) The speaker's knowledge of its falsity or ignorance of its truth. (5) His intent that it should be acted on by the person and in the manner reasonably contemplated. (6) The hearer's ignorance of its falsity. (7) His reliance on its truth. (8) His right to rely thereon. (9) And his consequent and proximate injury." Swyden v. James H. Stanton Construction Co., 336 S.W.2d 389, 392 (Mo.1960).

Count I of the petition contains 29 paragraphs. It is prolix, vague, redundant, inconsistent and generally not a model of careful pleading. It is at least arguable that it does not meet the requirements of Rule 55.15 which provides that circumstances constituting fraud shall be stated with particularity. The issue here, however, is not whether the petition was subject to a motion for a more definite statement but whether it is fatally defective.

Against realtor Burt, the allegations of Count I included the following:

1. In 1978 Burt was acting as agent for the sellers in the sale of the residence. In June 1978 a prospective buyer named Tigner contacted Burt and the sellers with

Page 339

respect to purchasing the residence and a sale contract was entered into between the sellers and Tigner. One of the requirements of that contract was that a certificate of termite inspection "be issued." Pursuant to that contract Plimmers Pest Protection Company inspected the residence and found termite infestation and termite damage and the Tigner deal was not consummated.

2. Later in June 1978 Burt advertised the residence for sale and plaintiffs negotiated with Burt and the sellers. On July 10 plaintiffs and sellers entered into a sale contract which contained a provision that the sellers "furnish a written statement from a recognized exterminator that there was no...

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2 practice notes
  • Counts v. Morrison-Knudsen, Inc., MORRISON-KNUDSE
    • United States
    • Court of Appeal of Missouri (US)
    • December 16, 1983
    ...authorities). The petition must be accorded a liberal construction. Matthews v. Pratt, 367 S.W.2d 632, 634 (Mo.1963); Maples v. Porath, 638 S.W.2d 337 (Mo.App.1982). So viewed, Count I of the petition, in addition to alleging the legal status of the respective defendants and a description o......
  • Maples v. Charles Burt Realtor, Inc., No. 13455
    • United States
    • Court of Appeal of Missouri (US)
    • April 9, 1985
    ...right to rely thereon; and (9) his consequent and proximate injury. Sofka v. Thal, 662 S.W.2d 502, 506 (Mo. banc 1983); Maples v. Porath, 638 S.W.2d 337, 338 We recall that Mr. Maples inquired of Ron Coffey about a termite report just prior to signing the Maples-Porath contract on July 10, ......
2 cases
  • Counts v. Morrison-Knudsen, Inc., MORRISON-KNUDSE
    • United States
    • Court of Appeal of Missouri (US)
    • December 16, 1983
    ...authorities). The petition must be accorded a liberal construction. Matthews v. Pratt, 367 S.W.2d 632, 634 (Mo.1963); Maples v. Porath, 638 S.W.2d 337 (Mo.App.1982). So viewed, Count I of the petition, in addition to alleging the legal status of the respective defendants and a description o......
  • Maples v. Charles Burt Realtor, Inc., No. 13455
    • United States
    • Court of Appeal of Missouri (US)
    • April 9, 1985
    ...right to rely thereon; and (9) his consequent and proximate injury. Sofka v. Thal, 662 S.W.2d 502, 506 (Mo. banc 1983); Maples v. Porath, 638 S.W.2d 337, 338 We recall that Mr. Maples inquired of Ron Coffey about a termite report just prior to signing the Maples-Porath contract on July 10, ......

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