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Stevens v. Markirk Constr., Inc.

Supreme Court of Missouri, En Banc

February 3, 2015

SHAWN STEVENS, Appellant,
v.
MARKIRK CONSTRUCTION, INC., AND KIRK JONES, Respondents

Page 876

APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY. The Honorable Marco Roldan, Judge.

Stevens was represented by Margaret D. Lineberry of the Lineberry Law Firm PC in Kansas City.

Markirk and Jones were represented by Patrick A. Bousquet, David R. Buchanan and Derek H. Mackay of Brown & James PC in Kansas City.

LAURA DENVIR STITH, JUDGE. Breckenridge, Fischer, Draper, Wilson and Teitelman, JJ., and Mountjoy, Sp.J., concur. Russell, C.J., not participating.

OPINION

Page 877

Laura Denvir Stith, Judge

Shawn Stevens filed suit against Kirk Jones and his property development company, Markirk Construction, Inc., alleging fraudulent misrepresentation in connection with the negotiation and sale of a subdivision lot. Mr. Stevens sought to submit two alleged misrepresentations by Mr. Jones: that the lot " would not flood" and that Mr. Jones falsely promised that he would remedy any flooding problem experienced on the lot if it did flood.

The trial court held, over Mr. Stevens' objection, that the jury had to find that Mr. Jones knew that these representations were false when he made them. Mr. Stevens now appeals the jury verdict in favor of Mr. Jones, arguing that the representation that the lot " would not flood" was a representation of existing fact and, consequently, the jury merely had to find that Mr. Jones made the representation without knowledge whether it was true or false.

This Court affirms. The representation that the lot " would not flood" is a representation as to what would happen in the future, not a representation of existing fact; therefore, the trial court did not err in requiring the jury to find that Mr. Jones made this representation with knowledge when it was made that the representation was false.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1999, Mr. Stevens became interested in purchasing land, for improvement with a custom-built home, in a Blue Springs subdivision known as Stone Creek. Stone Creek was being developed by Markirk Construction, Inc., of which Mr. Jones was president. Mr. Stevens was particularly interested in Lot 335 because it was located on a cul-de-sac and because the fact that the lot sloped downward from the street toward the rear boundary line meant it would accommodate his desire for a walk-out basement.

Lot 335 became available for sale in February 2000. Mr. Stevens visited the lot again. Although he later claimed that

Page 878

he became concerned during this subsequent visit that " water would come through the lot," Mr. Stevens purchased Lot 335 in June 2000. Construction of his house was completed in March 2001.

In November 2009, Mr. Stevens filed suit against Markirk Construction and Mr. Jones,[1] alleging fraudulent misrepresentation in connection with the negotiation and sale of Lot 335, among other claims. His petition alleged that when he visited the lot after it came on the market, Mr. Jones had expressly and falsely represented to him that " there had not been, nor would there be, any problems with storm water drainage or flooding" on the lot. (Emphasis added.) The representation that " there had not been" any problems with storm water drainage of flooding was, by its nature, a representation of existing fact -- that there had been no such problems -- while the representation that there would be no such problems in the future was, by its nature, a representation as to future events.

At his deposition, a portion of which was read into the record at trial, Mr. Stevens' description of his conversations with Mr. Jones was importantly different. He testified that " [t]o the best of [his] knowledge, to reproduce the exact statement of Kirk Jones, there should be no problem with water pertaining to ... Lot 335." (Emphasis added.) A statement that " there should be no problem" is, by its nature, a statement as to future events.

Mr. Stevens' trial testimony presented another important variation of the representation. He testified that Mr. Jones told him on two occasions prior to purchase: " There are no problems with water issues on Lot 335, and if there are, I will regrade, we will regrade, we will build retaining walls, whatever it takes, to resolve the problem." (Emphasis added.) " There are no problems" is, by its nature, a statement of existing fact as to whether there are problems; what Mr. Jones would do " if there are" problems is, by its nature, a statement of future intent.

Mr. Stevens further testified that, contrary to Mr. Jones' present and future representations, there had been water issues in the back yard of the lot for the entirety of his ownership and that Mr. Jones had failed to resolve the problems. As a result, he testified, he had been unable to make use of the yard by installing a swing set, pool, or patio because the water runoff left the ground perpetually soggy. He also testified that he had been unable to sell the house after approximately three years.

Mr. Jones denied that he had made false representations about the likelihood that the lot would flood. He said that it was self-evident the property was a natural drainageway but that he never told Mr. Stevens that the lot would not flood or that he would remedy any flooding problems arising on the lot. Instead, he testified that he promised only that, if something was not built according to the engineering plans or the city's requirements, it would be corrected.

The parties agreed that the jury instruction should be based on Missouri Approved Instruction (MAI) 23.05, Fraudulent ...


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