VanBooven v. Smull

• Decision Date: 11 February 1997
• Docket Number: No. WD,WD
• Citation: 938 S.W.2d 324
• Parties: Ron & Patricia VANBOOVEN, Respondent, v. William & Jill SMULL, Appellant. 51982.
• Court: Missouri Court of Appeals

Page 324

938 S.W.2d 324

Ron & Patricia VANBOOVEN, Respondent, v. William & Jill SMULL, Appellant.

No. WD 51982.

Missouri Court of Appeals Western District.

Submitted Sept. 27, 1996.

Decided Feb. 11, 1997.

Janis L. Prewitt, Springfield, Julie Lee Prewitt, Kansas City, Ronald E. Smull, Columbia, for appellant.

Elton W. Fay, Columbia, for respondent.

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

PER CURIAM.

This case involves an action alleging fraud in the sale of residential real estate. William and Jill Smull, defendants, appeal from the trial court's judgment entered in favor of Ron and Patricia VanBooven, plaintiffs, in the amount of $3,100.00. On appeal, the Smulls claim that the trial court erred in entering judgment in favor of the VanBoovens because (1) there was no evidence that the Smulls knew there was any material defect; (2) the VanBoovens failed to show that the undisclosed information was beyond their reasonable reach and not discoverable in the exercise of reasonable diligence; (3) the Smulls were released from all liability regarding the condition of the property because the VanBoovens expressly acknowledged that they accepted the property in its present condition; and (4) the trial court erred in not allowing the Smulls a credit of $2,300.00, the amount of the settlement between the VanBoovens and the realtor, Donna Rice.

On January 15, 1994, William and Jill Smull entered into a contract for the sale of their home with Ron and Patricia VanBooven. The VanBoovens paid $133,000.00 to purchase the property and moved into the house on March 16, 1994. Shortly after moving into the property, the VanBoovens discovered that a substantial amount of the carpet was saturated with dog urine.

The VanBoovens filed a petition for damages on November 16, 1994 naming the Smulls and Donna Rice as defendants. They alleged two counts of fraudulent misrepresentation of the condition of the carpet contained in the house, Count I against the Smulls and Count II against Ms. Rice, and one count of misrepresentation of the square footage of the house (Count III) against both the Smulls and Rice. The VanBoovens settled the claim against Donna Rice and she was dismissed from the action. The dismissal of Rice eliminated Counts II and III from the petition. On January 25, 1995, the Smulls filed an answer denying the allegations contained in the petition and asserted an affirmative defense that they had been released from all liability. Trial was held in the associate circuit court resulting in a judgment for the VanBoovens. The Smulls appealed from the associate circuit court judgment.

The trial de novo was conducted in the circuit court on September 8, 1995. Both the VanBoovens and the Smulls testified at trial, as well as Frederick Wappel, the carpet cleaner, and Darrel Wainscott, the man who replaced the carpet. Mr. VanBooven testified that he and his wife visited the house three or four times before they took possession of the house. Each time they visited the house, they conducted general inspections of the house. The VanBoovens noticed that the Smulls had two dogs. During the visits, they did not notice any unusual odors or stains on the carpet. While discussing a tear in the carpet with Mr. Smull, Mr. VanBooven asked him if there was anything else wrong with the carpet. Mr. Smull told Mr. VanBooven that he was unaware of any other problems with the carpet.

Frederick Wappel, who said he had been in the carpet cleaning business for eight to nine years, testified that when he first inspected the VanBoovens' carpet, he noticed a masking smell on the carpet like "Carpet Fresh," a commercial product designed to cover odors in carpet. As he cleaned the carpet he noticed a strong urine smell. He decided to treat the damaged areas of the carpet with an enzyme, let it soak and then spray a neutralizer on the carpet. After inspecting the carpet the next day, he concluded that he had done all he could do, and that the carpet would have to be replaced.

Darrel Wainscott testified that he was hired to replace the carpet. While working with the carpet, Wainscott noticed a strong animal odor in certain areas. He found areas in the house where the urine had soaked through the padding underneath the carpet. In the damaged areas, the sub-floor underneath the padding was still damp from the urine. Wainscott had to treat the sub-floor several times to remove the urine and the odor.

Mr. Smull testified that shortly after moving into the home, they acquired two puppies. Smull recounted cleaning urine stains on the carpet approximately eight to nine times per year. He and his wife both worked outside the home during the day. For the first year, they shut the dogs in the basement while they were at work. Later, they allowed the dogs to remain free in the house during the day. Mr. Smull also left the dogs free in the house while they went on vacations. After being away from the home for extended periods of time, the Smulls would check the carpets because they "half-expected to find something." The Smulls regularly used "Carpet Fresh" to mask odors, each time they vacuumed the carpet. Smull denied that he had any way of knowing that urine was embedded in the carpet, and that he never had an opportunity to see the sub-floor. Jill Smull admitted that she knew there were several urine stains on the carpet from the animals, and that the average person would probably not notice the stains.

The trial court entered judgment in favor of the VanBoovens and against the Smulls in the amount of $3,100.00. The Smulls now appeal.

Sufficiency of the Evidence

In Points I and II, which will be addressed together, the Smulls argue that the trial court erred in entering judgment in favor of the VanBoovens because there was no evidence in the record that the Smulls knew that there was any material defect in the carpet and the VanBoovens failed to show that the undisclosed information was "beyond their reasonable reach and not discoverable in the exercise of reasonable diligence."

In a court-tried case, the judgment of the trial court will be affirmed unless there is no substantial evidence to support the judgment, it is against the clear weight of the evidence or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.1976). The trial court sits in the best position to judge the credibility of the witnesses. T.B.G. v. C.A.G., 772 S.W.2d 653, 655 (Mo. banc 1989).

In the petition for fraud, the VanBoovens alleged, inter alia, that at the time defendants offered their property for sale, they concealed the fact that "much of the carpet was saturated with urine, was stained by urine, and that large amounts of carpet deodorizer were being used to conceal the urine odor;" the condition of the carpet was a material fact which plaintiffs considered when determining whether to make the purchase; the concealment led to a false belief on the part of plaintiffs that the carpet would be in a condition suitable for habitability; defendants failed to disclose the condition of the carpet with the intent and for the purpose of defrauding the plaintiffs; plaintiffs relied on the fraudulent representations in purchasing the house; defendants had a duty to disclose the concealment due to their position of superior knowledge and the inability of plaintiffs to discover the defect through reasonable investigation; as a direct and proximate result of defendants' conduct, plaintiffs were damaged in the sum of $4,530.00.

The burden of proving fraud is on the party who is charging fraud. Barylski v. Andrews, 439 S.W.2d 536, 539 (Mo.App.1969). Fraud must be established by evidence, and is never presumed. Id. The elements of fraud include: a representation that is false and material; the speaker's knowledge of its falsity or ignorance of its truth; the speaker's intent that the representation be acted upon; the hearer's ignorance of its falsity; the hearer's reliance on its truth; the hearer's right to rely on it; and injury. State ex rel. PaineWebber, Inc. v. Voorhees, 891 S.W.2d 126, 128 (Mo. banc 1995).

First, we must determine whether there was a representation that was false and material regarding the condition of the carpet. The Smulls denied any knowledge of any material defect in the carpet and claim that the VanBoovens' evidence that the Smulls knew of any permanent odor in the carpet was, at best, "unsupported conjecture and speculation."

[A] representation is not confined to words or positive assertions; it may consist as well of deeds, acts, or artifices of a nature calculated to mislead another and thereby to allow the fraud-feasor to obtain an undue advantage over him.... If he fails to disclose an intrinsic circumstance that is vital to the contract, knowing that the other party is acting upon the presumption that no such fact exists, it would seem to be quite as much a fraud as if he had expressly denied it, or asserted the reverse, or used any artifice to conceal it, or to call off the buyer's attention from it.

Barylski, 439 S.W.2d at 539 (quoting Lindberg Cadillac Co. v. Aron, 371 S.W.2d 651, 653 (Mo.App.1963)). The VanBoovens based their cause of action on the concealment by the Smulls of the damaged condition of the carpet. Silence or concealment of facts can amount to actionable fraud if it relates to a material matter known to the party sought to be held accountable for fraud. Vendt v. Duenke, 210 S.W.2d 692, 699 (Mo.App.1948). There must also be a legal duty to disclose on the part of the fraud-feasor arising from a relation of trust, from confidence, inequality of condition, or superior knowledge which is not within the fair and reasonable reach of the other party. Id.

The alleged nondisclosure here related to an allegedly latent defect. The VanBoovens did not notice the urine smell when they visited the Smulls' residence. Mr. Smull represented to Mr. VanBooven that nothing was wrong with the carpet...