Martin v. McNeill

• Decision Date: 07 October 1997
• Docket Number: No. WD,WD
• Citation: 957 S.W.2d 360
• Parties: Jeanne MARTIN, Respondent, v. David McNEILL, Appellant. 52573.
• Court: Missouri Court of Appeals

Page 360

957 S.W.2d 360

Jeanne MARTIN, Respondent, v. David McNEILL, Appellant.

No. WD 52573.

Missouri Court of Appeals Western District.

Submitted July 10, 1997.

Decided Oct. 7, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 25, 1997.

Application for Transfer Denied

Jan. 27, 1998.

Ray E. Sousley, Kansas City, for appellant.

Clark S. Gay, Kansas City, for respondent.

Before SMART, P.J., and LOWENSTEIN and LAURA DENVIR STITH, JJ.

SMART, Judge.

David McNeill appeals a judgment entered against him for $1,500.00 on a claim for fraudulent nondisclosure in connection with Jeanne Martin's purchase of a house. Mr. McNeill contends that the trial court erred in entering judgment in favor of Ms. Martin because: (1) Ms. Martin offered no evidence that the defect existed before she owned the house and no evidence that Mr. McNeill had any knowledge of the defect; (2) Ms. Martin had undertaken her own independent investigation of the house and is thus precluded from relying on any representations or nondisclosures of Mr. McNeill; (3) the two verdict directing instructions were inconsistent; and (4) the court should have given Mr. McNeill's instruction regarding Ms. Martin's waiver of her right to rely on Mr. McNeill's disclosure statement. The judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In August 1992, Mr. McNeill purchased the real property located at 1240 Romany Road in Kansas City, Missouri for the purpose of "rehabbing" the property and reselling it at a profit. Mr. McNeill was in the business of buying, "rehabbing" and selling homes. Mr. McNeill made many repairs and improvements to the property. He placed a new roof on the house, installed a new master bathroom (which included a Jacuzzi tub, a shower and a separate toilet area), had the hardwood floors refinished, and installed a new kitchen. The house was painted inside and out. Some of the work was completed by Mr. McNeill and some was completed by subcontractors with Mr. McNeill's supervision and assistance.

Mr. McNeill placed the house on the market in January 1993. As a part of listing the house, Mr. McNeill filled out a disclosure statement. On that statement, Mr. McNeill indicated that additions/improvements had been made to the house. The statement also contained the following statement: "Disclose any material defects in the property not fully described above. Describe any significant repairs, alterations to the property and who did the work." In response, Mr. McNeill wrote, "None."

Ms. Martin viewed the home and eventually entered into a contract to purchase it from Mr. McNeill. The contract included the seller's disclosure statement indicating that there were no material defects in the home. Prior to closing, Ms. Martin was in the house on several occasions. Ms. Martin conducted a termite inspection, mechanical inspection and a structural inspection. Mr. McNeill was to pay for any repairs necessitated by these inspections, which he did.

After Ms. Martin moved into the house, several defects became apparent, including blistering and peeling paint, defective tile work, defective plumbing and a leaky roof. Ms. Martin testified that within six weeks of moving into the house and using the master bathroom, the tile cracked in the water closet and the tile in the shower stall fell off the walls. There was water behind the tile because the tile had not been sealed properly. The whirlpool tub was uneven. When the tub was leveled, the pipes connecting to the faucets had to be lengthened. Ms. Martin testified that the exterior paint had blistered and peeled, in some places down to the bare wood. There were also problems with the interior paint. The paint in the sunroom peeled off of the walls. In July 1993, Ms. Martin noticed that the roof over the sun porch was sagging.

Testimony at trial indicated that the blistering and peeling paint was due to improper surface preparation and failure to apply a primer. Carla Hine, a painter and paper hanger, was hired to paint the interior of the sunroom. She found that the wood on the windows was blistering and peeling because of an improper paint. She also found that the paint was not sticking to the paneled walls. Ms. Hine, who had been in business for eighteen years, testified that the paint was popping off because the wall had been improperly prepared for painting. She stated that an oil-based sealer-primer should have been placed on the panelling first and that this had not been done. Mr. McNeill testified that he hired David Troxell to paint the sunroom, that he watched Mr. Troxell paint the sunroom and that Mr. Troxell had applied an oil-based sealer before applying a latex topcoat.

William Shinn was hired by Ms. Martin to paint the exterior of the house. Mr. Shinn was a retired paint inspection foreman with General Motors. He also worked for a painting contractor. He testified that the paint on the exterior was in bad condition, "peeling down to the bare wood." It was his opinion that the exterior of Ms. Martin's house had not been properly prepared before it was painted and that the paint that was coming off the house had not been properly sealed with a primer coat. Mr. McNeill testified that he had painted the exterior of the house and had applied an oil-based primer coat.

Ms. Martin hired James Gibson, a general contractor, to repair the roof over the sun porch. In his opinion, the sag in the roof would have been noticeable in 1992, when Mr. McNeill added a layer of shingles to the roof during the rehab work on the house. Mr. Gibson also was hired to replace the tile in the half bath on the first floor of the house. It was his opinion that the tile was not properly installed.

Ms. Martin attempted to contact Mr. McNeill about the problems with the house. Mr. McNeill did send someone to look at the tile and offered to have the tile installer make repairs, but Ms. Martin preferred to choose her own repairman. Ms. Martin did not contact Mr. McNeill further about problems with the house because she felt him to be arrogant, nonresponsive and rude, refusing to come to the house to see the problems. This suit followed.

The cause came to trial in February 1996. The court submitted the case to the jury on two theories, fraudulent nondisclosure and fraudulent misrepresentation. The jury returned a verdict in favor of Ms. Martin and against Mr. McNeill for fraudulent nondisclosure in the amount of $1,500.00. Mr. McNeill appeals.

SUFFICIENCY OF THE EVIDENCE

In his first point, Mr. McNeill contends that the evidence is insufficient to support the verdict because there was no evidence offered that the defects existed at the time that Ms. Martin purchased the house or that Mr. McNeill had any knowledge of the defects.

The party charging fraud has the burden of proving fraud. VanBooven v. Smull, 938 S.W.2d 324, 327-28 (Mo.App.1997). Generally, there are nine elements of fraud that must be established: (1) a representation; (2) that is false; (3) that is material; (4) the speaker's knowledge of the falsity of the representation or ignorance of its truth; (5) the speaker's intent that the representation be acted upon; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on the truth of the representation; (8) the hearer's right to rely on it; and (9) injury. State ex rel. PaineWebber v. Voorhees, 891 S.W.2d 126, 128 (Mo. banc 1995). There need not be an affirmative representation for actionable fraud to exist: if a party has a duty to speak, silence can amount to misrepresentation. Jones v. Arnold, 359 Mo. 161, 221 S.W.2d 187, 193 (Mo.1949).

Mr. McNeill claims that Ms. Martin presented no evidence that Mr. McNeill knew of the defects in the house. However, the record reveals that there is evidence that Mr. McNeill had knowledge of the defects. The evidence is circumstantial, but "the existence of only circumstantial evidence on a material issue is no bar to recovery of and by itself." Vaughan v. Taft Broadcasting Co., 708 S.W.2d 656, 661 (Mo. banc 1986). The evidence must establish the desired inference with such certainty as to cause it to be the more reasonable and probable of the conclusions that could be drawn. Id. Liability cannot be based upon guesswork, speculation or conjecture that goes beyond any inference that can be drawn from the record. Wright v. Over-the-Road and City Transfer Drivers, Helpers, Dockmen, and Warehousemen, 945 S.W.2d 481, 495 (Mo.App. W.D.1997). See Vaughan v. Taft Broadcasting Co., 708 S.W.2d 656, 661 (Mo. banc 1986).

Mr. McNeill's testimony establishes that he painted the exterior of the house before selling the home to Ms. Martin, that he helped prepare the sunroom for painting and that he supervised the repairs to the roof. Ms. Martin's witnesses testified that the painting had not been sealed and that shortcuts had been taken. Further testimony established that the sag in the roof would have been noticeable in 1992 during the rehabilitation of the house. The logical inference that can be drawn is that Mr. McNeill was in a position to know that there was no sealer on the painted areas and that the roof sagged, and that, in fact, there was no sealer on the painted areas and/or the roof was defective.

As support for his contention that there was no evidence that he had knowledge of the defects in the house, Mr. McNeill points out that he testified he did not take any shortcuts. He also points to testimony where he stated that he power washed, scraped, sanded, primed and then painted the house. The jury, however, did not have to believe such testimony. The jury could, in fact, believe that sealer had not been applied before the interior and/or the exterior of the house was painted. The jury could have also believed, from the evidence presented, that the roof sagged at the time that the house was undergoing repair.

This court does not assume the same position as the jury. Our function is one of review. When performing that...