White v. Bowman
| Decision Date | 25 November 2009 |
| Docket Number | No. SD 29631.,SD 29631. |
| Citation | 304 SW 3d 141 |
| Parties | William B. WHITE, Plaintiff/Appellant, v. Doris BOWMAN, Douglas R. Eckhoff, Sandy L. Eckhoff, and Relocation Properties Management, LLC, Defendants/Respondents. |
| Court | Missouri Court of Appeals |
Richard L. Schnake, Neal & Newman, LLP, Springfield, MO, Timothy S. Davis, Branson, MO, for Appellant.
Craig F. Lowther, Kory D. Stubblefield, Lowther Johnson, Springfield, MO, for Respondents.
William B. White (plaintiff) appeals the judgment of the Circuit Court of Greene County dismissing his claims against defendants Douglas R. Eckhoff and Sandy L. Eckhoff (Eckhoffs) and granting summary judgment in favor of defendant Doris Bowman (Bowman). We affirm the summary judgment for Bowman. We reverse the dismissal as to Eckhoffs and remand to the trial court for further proceedings.
The Bowman summary judgment record contains evidentiary matter beyond the scope of Eckhoffs' motion to dismiss. Certain documentary materials, useful for narrative purposes although not properly before the trial court on either branch of the case, are contained in a Supplemental Legal File to which no party has objected. While our factual recital mentions all explanatory portions of the record, we disregard both the summary judgment facts and the extraneous documents in appraising the bare sufficiency of plaintiff's petition to survive dismissal. L.C. Dev. Co. v. Lincoln County, 26 S.W.3d 336, 339 (Mo. App.2000).
The record as a whole shows that Eckhoffs owned and resided at a house on acreage in rural Greene County. Douglas Eckhoff was employed by Ashland, Inc. In 2002, Ashland asked Mr. Eckhoff to relocate, and Eckhoffs resolved to sell the property.
On August 7, 2002, Eckhoffs entered a brokerage agreement with Bowman, a licensed real estate salesperson with ERA Jones-Rutherford Realtors. Incident to that listing, Eckhoffs completed a seller's disclosure statement. The statement included specific "check-off" items relating to flood zones, flood plains, or wetland areas; drainage or flood problems; water leakage or seepage in the house; water leakage, seepage, accumulation, or dampness in the basement or crawlspace; mold or fungi; and repairs or other attempts to control any water or dampness. Eckhoffs checked "No" for each of these items.
A legend on the disclosure statement, directly above Douglas Eckhoff's and Sandy Eckhoff's signatures, declares in part:
The undersigned Seller represents that the information set forth in the foregoing disclosure statement is accurate and complete. Seller does not intend this disclosure statement to be a warranty or guaranty of any kind. Seller hereby authorizes the Broker to provide this information to prospective buyers of the property and to real estate brokers and sales people.
Doris Bowman did not sign the disclosure statement.
On October 21, 2002, Relocation Properties Management, LLC, (RPM) sent Bowman a listing referral for the Eckhoff property. RPM identified itself as a limited liability company "which operates in part as a referral service for relocating employees of Ashland Inc." The listing referral identified the "client" as Doug Eckhoff. Bowman accepted the referral on October 23, 2002, and on December 17, 2002, Bowman and RPM entered a listing agreement. That document identified by mailing address "the subject matter of this agreement" as the Eckhoff property.
Debra Rose and Jim Barrett, nonparties to this action, controlled a limited liability company known as DJRB Investments, Inc. (DJRB). On the day of the RPM/Bowman listing agreement, RPM and Rose executed a real estate contract for sale of the property to DJRB. Because RPM, the named seller, did not then own the subject property, the contract was made contingent upon (1) Doug Eckhoff's acceptance of a purchase offer by RPM, and (2) closing on an Eckhoff/RPM sale contract (not exhibited of record, if extant) prior to closing on the RPM/DJRB contract.
The contingencies were contained in an addendum, Addendum A, to the RPM/DJRB contract. The addendum further declared that RPM "is a non-resident owner and has no knowledge as to the condition of this property except for any inspections/reports given to the listing agent." A two-page disclosure statement prepared by RPM as "seller," dated October 21, 2002, was also attached. The disclosure statement reiterated RPM's disclaimer of knowledge in identical language, and represented all property conditions, including flood plain location and flood damage to the premises, as "unknown."
On December 26, 2002, while all actual and notional contracts remained executory, Bowman sent a sixteen-page facsimile transmission to plaintiff, who, according to his petition, was then "contemplating a loan to Rose and Barrett to finance the purchase of the property." The fax included the RPM/DJRB real estate contract, Addendum A, and both Eckhoffs' and RPM's disclosure statements.
For reasons not revealed by the record, the Eckhoff/RPM and RPM/DJRB conveyances were never consummated. Instead, on January 9, 2003, Eckhoffs, as husband and wife, executed a general warranty deed conveying the property to Debra Rose and Jim Barrett, individuals, as joint tenants.1 To finance the purchase, Rose and Barrett borrowed $195,000 from plaintiff, who took back a promissory note and deed of trust, neither of which is exhibited of record. According to the petition, the deed of trust was also dated January 9, 2003.
According to Bowman's summary judgment affidavit, just prior to the closing she accompanied Rose and Barrett on a "final walkthrough" of the house. In the course of that viewing, the three "noticed a small amount of mold or mildew on the wall near the window in the downstairs room that was used for an office by the sellers." Bowman "suggested at that time that it be cleaned," but the buyers "ignored the mold or mildew, continued the walkthrough, and did not mention it again."
Not long after taking possession, Mr. Barrett grew mortally ill and died, first conveying to plaintiff by quitclaim on April 23, 2003, all his interest in the subject property. Soon afterward, Rose declared Chapter 7 bankruptcy. Ultimately, according to his petition, plaintiff foreclosed the deed of trust and acquired record title to the property.
On January 7, 2005, plaintiff brought the present action against Eckhoffs, Bowman, and RPM. As to Eckhoffs, plaintiff asserted claims for fraudulent and negligent misrepresentation; against Bowman and RPM, he charged fraudulent misrepresentation and concealment. Plaintiff further alleged that the actual value of the property was less than the purchase price paid by Rose and Barrett and that the diminished value resulted from conditions fraudulently or negligently misrepresented or concealed. According to the petition, the property actually lay in a flood zone and had suffered flooding, poor drainage, dampness, seepage, and mold. It pled that Eckhoffs misrepresented these conditions in their seller's disclosure statement of August 7, 2002, and that Bowman misrepresented or concealed these conditions by failing to inform plaintiff of the falsity of Eckhoffs' disclosures. The claim against RPM charged liability in respondeat superior for the actions of Bowman, its alleged agent.
No defendant answered the petition, but each moved separately to dismiss for failure to state a claim on which relief might be granted. Subsequently, Bowman moved for summary judgment. Bowman's supporting affidavit attested that "prior to the walkthrough with the buyers," she "had not seen, witnessed, or experienced any of the alleged problems with the property," and no one ever told her of, or represented to her, "any problems or defects with the property which could have adversely impacted its value, usability, or habitability."
The trial court entered judgment against plaintiff and in favor of all defendants, sustaining both Bowman's motion for summary judgment and Eckhoffs' and RPM's motions to dismiss. Plaintiff's Notice of Appeal was filed February 6, 2009. We judicially notice that on May 21, 2009, plaintiff dismissed his appeal as to RPM only.
Eckhoffs moved to strike portions of the Statement of Facts from plaintiff's brief, and we took the motion with the case. Eckhoffs protest plaintiff's mentioning both the standard of review and a separate contract addendum not before the trial court within his Statement of Facts.
Because the applicable standard of review is disputable, the standard for which an appellant contends should appear in the argument portion of his brief. "The argument shall also include a concise statement of the applicable standard of review for each claim of error." Rule 84.04(e) (emphasis added). Concordantly, Rule 84.04(c) directs that the statement must provide a fair and concise account of "the facts relevant to the questions presented for determination without argument." (Emphasis added.) Eckhoffs' objection is well-taken in principle.
We find, however, that the questioned reference is oblique, fragmentary, and justified by the context of its use. It reads in full:
To the extent, then, that the appeal involves the Eckhoffs, against whom the claim was dismissed for failure to state a claim upon which relief could be granted, this Court views the facts stated in the petition as true and construes them liberally in favor of plaintiff. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). 2 Facts with respect to Bowman, to the extent that they do not overlap with these, derive from the summary judgment documents.
Eckhoffs' motion does not pray that the appeal be dismissed, but only that the misplaced reference be stricken. In general, an appeal will be dismissed for briefing infractions only when their effect is to frustrate review....
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