Stewart v. Kirkland

Decision Date26 September 1996
Docket NumberNo. 20674,20674
Citation929 S.W.2d 321
PartiesJ. Hobart STEWART, Plaintiff-Respondent, v. Jake R. KIRKLAND, Defendant-Appellant.
CourtMissouri Court of Appeals

Stuart H. King, William H. McDonald and Associates, P.C., Springfield, for defendant-appellant.

Thomas W. Millington, Schroff, Glass & Newberry, P.C., Springfield, for plaintiff-respondent.


Plaintiff sought damages against the Defendant based upon fraud. A jury returned a verdict in favor of Plaintiff for $78,700.00. Judgment was entered in accordance with the verdict. Defendant appeals, presenting two points relied on. 1

Defendant contends there was error in submitting two instructions and in denying Defendant's motion for judgment notwithstanding the verdict because a submissible case was not made. As the instructions complained of were not set forth in the argument portion of Defendant-Appellant's brief, as required by Rule 84.04(e), the alleged instruction error was not preserved for appellate review. Twin Bridges Const. Co., Inc. v. Ferner, 700 S.W.2d 534, 537 (Mo.App.1985); Sewell v. MFA Mut. Ins. Co., 597 S.W.2d 284, 290 (Mo.App.1980). We proceed then to whether a submissible case of fraud was made.

In reviewing whether the trial court erred in failing to enter judgment for the Defendant notwithstanding the verdict, this Court views the evidence in the light most favorable to the verdict, and disregards all inferences to the contrary. Norris v. Jones, 687 S.W.2d 280, 281 (Mo.App.1985). See also Wion v. Carl I. Brown & Co., 808 S.W.2d 950, 952 (Mo.App.1991). A motion for judgment notwithstanding the verdict should be granted if an essential element in the cause of action is not supported by substantial evidence. Scott v. Car City Motor Co., Inc., 847 S.W.2d 861, 864 (Mo.App.1992).

Fraud may be established by circumstantial evidence. Wion, 808 S.W.2d at 954. However, "the evidence to support an inference of fraud must arise above mere suspicion and point logically and convincingly to that conclusion." Grosser v. Kandel-Iken Builders, Inc., 647 S.W.2d 911, 914 (Mo.App.1983). "All doubt should be entertained in favor of good faith in determining whether a statement constitutes a misrepresentation." Id.

Fraud is never presumed, but must be proven. Scott, 847 S.W.2d at 865. If the evidence is as consistent with honesty as with fraud, the transaction will be deemed honest. Id. Evidence that amounts to no more than suspicion or conjecture of fraud does not suffice to prove fraud. Id.

A promise accompanied by a present intent not to perform is a misrepresentation sufficient to constitute fraud. Carlund Corp. v. Crown Center Redevelopment Corp., 910 S.W.2d 273, 279 (Mo.App.1995). Failure to perform alone, however, is not sufficient to establish the intent of the promisor at the time the agreement was made. Id. The mere giving of a promise, though breached the next day, does not give rise to an action for tortious fraud. Id.

To establish fraud, plaintiff has to prove that defendant not only breached the contract, but that Defendant intended to do so when it made the contract. Maupin v. Hallmark Cards, Inc., 894 S.W.2d 688, 697 (Mo.App.1995). Plaintiff has the burden of establishing that defendant did not intend to perform as promised. Grossoehme v. Cordell, 904 S.W.2d 392, 396 (Mo.App.1995).

Assuming a $285,000.00 promissory note and deed of trust, Clevenger Investment Management Corporation (CIMC) purchased from Bear Park Inc. lake-front property in Taney County. At the time of the purchase of the property, Robert Francis and Plaintiff-Respondent J. Hobart Stewart were the owners of the stock of CIMC. Thereafter, Plaintiff sold his interest in CIMC to Francis and his wife in exchange for a promissory note in the amount of $78,750.00. The note was secured by a second deed of trust on the property. June and Wallace Brunson had sold the property to Bear Park, Inc., and held a first deed of trust on the property, securing a $285,000.00 promissory note.

CIMC became delinquent in the note payments to the Brunsons, and the Brunsons initiated foreclosure proceedings. A foreclosure sale was scheduled for March 18, 1988. In an attempt to forestall the foreclosure, Francis, the sole shareholder of CIMC, approached Defendant-Appellant Kirkland to arrange for a loan so that CIMC might pay the note. In order to obtain this financing and clear the other liens on the property, Francis asked Plaintiff-Respondent to release the second deed of trust.

Plaintiff was told by Francis that Defendant would loan to CIMC the funds needed to pay off the note to the Brunsons, thus preventing the foreclosure. Kirkland would then receive a first deed of trust constituting a first priority lien on the property. In exchange for him releasing the second deed of trust, Francis promised Stewart a lien on stock in CIMC so that in the event of default to Stewart, Stewart would have controlling interest in CIMC. CIMC would continue to own the real property. Relying on Francis' promise, Stewart and his wife signed the release on March 18, 1988.

Apparently after the meeting of the parties and Francis, further investigation of the property by Defendant revealed additional lien claimants to the property. Defendant then declined to loan the money to CIMC and purchased the note held by the Brunsons, taking an assignment of the note and deed of trust on March 18, 1988.

Defendant testified that as part of his agreement with Francis, Francis was to make payments to cover the interest on the note. On July 11, 1988, after...

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4 cases
  • Chesus v. Watts, WD
    • United States
    • Missouri Court of Appeals
    • 3 Marzo 1998 covered in the previous point, Watts concludes there was no contract with the individuals or the Association. In Stewart v. Kirkland, 929 S.W.2d 321, 323 (Mo.App.1996), the court stated, after having stated that fraud is never presumed, that if the evidence presented at trial is as consi......
  • Rakes v. Life Investors Ins. Co. of America
    • United States
    • U.S. District Court — Northern District of Iowa
    • 20 Junio 2008
    ...Vos, 667 N.W.2d at 54 (refusing to apply presumption of reliance in fraud class action against insurance company); Stewart v. Kirkland, 929 S.W.2d 321, 323 (Mo.App.1996) ("Fraud is never presumed, but must be proven."); Henderson v. Henderson, 255 Va. 122, 495 S.E.2d 496, 499 (1998) ("Fraud......
  • Gramex Corp. v. Green Supply
    • United States
    • Missouri Court of Appeals
    • 13 Noviembre 2001
    ...verdict should be granted if an essential element in the cause of action is not supported by substantial evidence." Stewart v. Kirkland, 929 S.W.2d 321, 322 (Mo.App. 1996). II."It is well established in case law that the cause of action asserted by a third party plaintiff, whether based on ......
  • State v. Community Alternatives
    • United States
    • Missouri Court of Appeals
    • 25 Agosto 2008
    ...The alleged error was not preserved for appellate review. Mitchem v. Gabbert, 31 S.W.3d 538, 541 (Mo.App.2000); Stewart v. Kirkland, 929 S.W.2d 321, 322 (Mo.App.1996). Point II is denied. Point III asserts that "[t]he trial court erred in sustaining the jury's verdict against [defendant]" b......

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