United States District Court, W.D. Missouri, Central Division
ROBERT A. MYERS AND KIMBERLY A. MYERS, Plaintiffs,
KNS DEVELOPMENT CORP., a Missouri Corporation, and KEVIN SHORT and NATALIE SHORT, Defendants.
NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE
KNS Development Corp. (“KNS”), Kevin Short, and
Natalie Short move pursuant to Federal Rules of Civil
Procedure 12(b)(6) and 9(b) to dismiss the complaint by
plaintiffs Robert A. Myers and Kimberly A. Myers for failure
to state a claim and for failure to plead with sufficient
particularity. For the reasons set forth below, the motion is
granted in part and denied in part.
Standard on Motion to Dismiss
Rule of Civil Procedure 12(b)(6) requires the dismissal of a
complaint that fails to plead facts sufficient to state a
plausible claim upon which relief may be granted. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In
determining whether a complaint alleges sufficient facts to
state a plausible claim to relief, the Court accepts all
factual allegations as true. See Great Plains Trust Co.
v. Union Pac. R.R. Co., 492 F.3d 986, 995 (8th Cir.
2007). If the facts alleged in the complaint are sufficient
for the court to draw a reasonable inference that the
defendant is liable for the alleged misconduct, the claim has
facial plausibility and will not be dismissed. See
Iqbal, 556 U.S. at 678.
Myers, a husband and wife from Nebraska, allege that on June
8, 2015, they entered into a contract for Defendants to
construct a vacation home upon the Myers' property in
Camden County, Missouri. Work at the site commenced on June
contract states that time is of the essence, and KNS and
Kevin Short represented that the vacation home would be
completed by June 2016. However, the home was not finished by
June 2016 as promised. KNS and Kevin Short then repeatedly
promised the Myers that completion was imminent. In late
2016, however, construction of the home materially slowed.
January 26, 2017, Kimberly Myers received a call from a
subcontractor, Kirk's Custom Woodworking
(“Kirk's”), complaining that it had not been
paid since November 2016 for services performed and material
supplied for construction of the Myers' vacation home.
Kimberly Myers replied that the Myers had made multiple
payments to KNS and/or Kirk's and that she had received
lien waivers in exchange. Kirk's stated that it had never
executed or delivered those lien waivers.
Myers immediately notified Central Bank of the Lake of the
Ozarks (the “Bank”), which was financing the
construction, that she suspected that KNS and Kevin Short
were defrauding the Myers. The Bank in turn discussed the
Myers' complaints with Kevin Short, who allegedly
admitted to forging other persons' names on lien waivers
he provided to the Myers.
same day, Kevin Short visited the Myers and explained that he
was “in big trouble.” He confessed that, although
a January 2017 invoice indicated that he had paid certain
subcontractors, he in fact had not done so. He admitted that
he had forged multiple lien waivers that purported to be from
various subcontractors, suppliers, and laborers. He begged
the Myers not to prosecute him, promising in exchange to pay
back all of the funds that he had obtained under false
pretenses from them and from their construction loan account
at the Bank.
next day, January 27, 2017, Kevin Short met with the Myers
and a representative of the Bank. Kevin Short admitted that,
in order to improperly withdraw funds from the Myers'
construction loan account with the Bank, he (i) had submitted
to the Bank completely fabricated requests for payments; (ii)
had altered other, legitimate payment requests from third
parties in order to line his own pockets; and (iii) had
forged lien waivers he provided to the Myers. Kevin Short
stated that his wife, Natalie Short, was aware of this
conduct. Kevin Short provided the Bank with a list of
subcontractors and suppliers whom, despite his prior
representations to the contrary, he had not paid.
the Myers and CBOLO contacted the various subcontractors and
suppliers identified by Kevin Short as having not been paid,
they learned that Kevin Short had improperly requested $446,
077.85 in improper payments from the Myers' funds.
Myers cancelled the construction contract with KNS and hired
a different company to complete their vacation home. The new
construction company advised the Myers of numerous
construction defects and other problems created by KNS.
Constructions permits had expired, and procuring new permits
would require new surveys of the property. The home's
placement violated setback requirements and would require the
Myers to obtain a variance from the Camden County government.
The rear deck for the home lacked a structural pier, and KNS
had used wood rather than concrete footings for the
structure. KNS neglected to arrange inspection of the gas
lines by the local fire department before installing
flooring, and completing that inspection in the
partially-constructed home required removing and then
replacing the flooring KNS had installed. The residential
elevator shaft was not built to the manufacturer's
specifications and would require substantial corrective
efforts. Fixing these and other unspecified deficiencies in
KNS's construction has cost the Myers over $60, 000 to
Myers since have learned that the Defendants had been
charging the Myers a builder's commission of 10% despite
the fact that the construction contract provided for a
commission rate of 8%.
about February 1, 2017, the defendants paid $50, 000 to the
Myers and promised to repay within a “few days”
the remaining amounts due. On or about February 8, 2017,
Natalie Short and her father, Phil Short, advised the Myers
and a representative of the Bank that they would pay all the
amounts due to the Myers and would compensate them for all
other damages and losses. On February 9, 2017, Phil Short
paid the Myers ...