Murray v. Crank, 71046

• Decision Date: 29 April 1997
• Docket Number: No. 71046,71046
• Citation: 945 S.W.2d 28
• Parties: Louis MURRAY and Colleen Murray, Plaintiffs/Appellants, v. David CRANK and Sharon Crank, Defendants/Respondents.
• Court: Missouri Court of Appeals

Page 28

945 S.W.2d 28

Louis MURRAY and Colleen Murray, Plaintiffs/Appellants, v. David CRANK and Sharon Crank, Defendants/Respondents.

No. 71046.

Missouri Court of Appeals,

Eastern District,

Division Four.

April 29, 1997.

J.B. Carter, Kirkwood, Kevin A. Nelson, St. Louis, for appellant.

James T. Barry, Jr., Gregory F. Herkert, St. Louis, for respondent.

RHODES RUSSELL, Presiding Judge.

This case arises from the trial court's grant of David and Sharon Crank's ("sellers") motion for summary judgment on Louis and Colleen Murray's ("buyers") petition alleging breach of contract, breach of implied warranties of habitability and fitness for purpose, and intentional misrepresentation in the sale of real property. We affirm in part and reverse and remand in part.

Sellers owned a home located in Sunset Hills across the street from a golf course. Prior to purchasing, Louis Murray toured the inside of the residence several times. In December 1989, he did a walk-through of the house. A month later, he returned to the house to discuss the sale and conducted another walk-through. Murray made a third trip to the residence in February to conduct a visual inspection of the interior and exterior of the home prior to signing the contract with sellers. During his walk-throughs of the house, he toured the basement and other rooms. He did not, however, go on top of the roof to inspect it.

Murray contacted several roofers regarding inspecting the roof. He had been told by Sharon Crank that the roof was a "lifetime roof", and after hearing that, he decided to investigate the condition of the roof. Murray contacted Connelly Roofing Company to inspect the roof who informed him that they were too busy to conduct an inspection, but that they would do a drive by visual of the residence at no charge. After conducting the drive by visual of the residence, the roofing company told Murray that it had observed a little sagging here and there, but in general, the roof looked okay.

On February 13, 1990, the parties executed the sales contract. David Crank requested that Murray handwrite in the language, "In as is condition,"under the property's description. Both David and Sharon Crank signed the sales contract, but only Louis Murray signed the contract on behalf of buyers. On April 25, 1990, sellers delivered to buyers a general warranty deed.

A few months after closing, buyers began to experience problems with golf balls bombarding their property. The golf course had changed the location of its twelfth tee by moving it east and south of its prior location. This change resulted in numerous golf balls being hit on to buyers' property. Golf balls hit the clay tile roof, walls, windows, air conditioning unit, satellite dish, and grounds. In their affidavits in support of their summary judgment motion, sellers maintained that they never had problems with errant golf balls entering upon the property when they resided there.

Buyers also experienced water problems with the home. According to Louis Murray, the basement filled up with water because the downspouts did not channel water away from the house. He also claimed that a pipe in the basement leaked. In the latter part of 1990, buyers discovered that many of the roof's tiles were broken or cracked and had to be replaced by them.

Buyers filed suit against sellers in the Circuit Court of St. Louis County. Count I of the petition stated that sellers breached the sales contract by failing to provide full disclosure of the "errant golf ball problems," the water problems, and the cracked and/or broken roof tiles. Count II of the petition stated that sellers breached the implied warranty of habitability of property and fitness of purpose. Count III of the petition stated that sellers fraudulently induced buyers to enter into a contract for sale of the residence. Buyers alleged that sellers fraudulently represented, or by their silence represented, to buyers during their inspection of the property, that there were no errant golf ball problems, no water problems, and no cracked roof tiles.

Sellers moved for summary judgment on all three counts. Sellers argued that they were entitled to summary judgment on Count I as to Colleen Murray because she had no standing to assert a cause of action for breach of contract. Sellers also argued that they were entitled to summary judgment as to Louis Murray because the property was sold "as is", and therefore, sellers had fulfilled all of the obligations imposed by the contract. Sellers argued that they were entitled to summary judgment on Count II because buyers were not the first purchasers of the property, and therefore, no implied warranties were imposed upon them as a matter of law. ¹ Finally, sellers argued summary judgment should be entered upon Count III because they were unaware that the golf course was changing the location of its twelfth tee, and that their use of the property was never infringed or impaired by errant golf balls while they resided at the property.

Buyers filed a motion to stay sellers' motion for summary judgment, stating that they needed additional time to take depositions of sellers. The trial court granted buyers' motion to stay consideration of sellers' motion for summary judgment until after July 15, 1996. On July 29, 1996, buyers filed their response in opposition to sellers' motion for summary judgment. The trial court granted sellers' motion for summary judgment the same day. This appeal follows.

When considering whether a grant of summary judgment was proper, we review the record in the light most favorable to the party against whom judgment is entered. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). A summary judgment is proper when the movant demonstrates that there are no genuine disputes as to a material fact and that the movant is entitled to judgment as a matter of law. Id. at 380. A movant, who is a defending party, may establish that he or she is entitled to a judgment as a matter of law by showing facts which negate an essential element of plaintiff's prima facie case. Id. at 381.

In their first point, buyers challenge the trial court's summary disposition of Count III claiming fraudulent misrepresentation.

The elements of a submissible case of fraudulent misrepresentation are: 1) a false, material representation; 2) the speaker's knowledge of its falsity or his/her ignorance of the truth; 3) the speaker's intent that his/her representation should be acted upon by the hearer in the manner reasonably contemplated; 4) the hearer's ignorance of the falsity of the representation; 5) the hearer's reliance on the representation being true; 6) the hearer's right to rely thereon; and 7) the hearer's consequent and proximately-caused injuries. Colgan v. Washington Realty Co., 879 S.W.2d 686, 689 (Mo.App.1994)(citing Clark v. Olson, 726 S.W.2d 718, 721 (Mo. banc 1987)).

Buyers do not assert that sellers affirmatively represented that there were no problems with errant golf balls, water, or broken roof tiles, but instead, argue that sellers were aware of these problems and failed to disclose them.

An affirmative representation is not always required for actionable fraud to exist. Silence can equal misrepresentation if the silent party has a duty to speak. Mobley v. Copeland, 828 S.W.2d 717, 724 n. 6 (Mo.App.1992). Concealment of a fact which one has a duty to disclose serves as a substitute element for a false and fraudulent representation in the tort of fraud. Triggs v. Risinger, 772 S.W.2d 381, 382 (Mo.App.1989). The duty to speak or disclose facts arises either from a trustful, confidential relationship or where one party has superior information not reasonably available to the other pa...