Shawn Stevens v. Markirk Construction, Inc., and Kirk Jones, 454 S.W.3d 875

Stevens purchased Lot 335 in a Stone Creek subdivision from Markirk Construction (Jones was president) after being told assurances about water/flooding during pre-purchase conversations.
Stevens alleged Jones represented that the lot "would not flood" and furthermore promised he would remedy any flooding if it occurred; Stevens later experienced chronic backyard water problems and sued for fraudulent misrepresentation.
At deposition and trial Stevens gave varying formulations of the alleged statements (e.g., "there should be no problem," "there are no problems," and "would not flood").
The parties agreed to submit the case under MAI 23.05 (Fraudulent Misrepresentations). Defense objected to the scienter language proposed by Stevens.
The trial court instructed the jury that the representation "Lot 335 would not flood" was a future-oriented statement requiring proof that Jones knew the statement was false when made; the jury found for Jones. Stevens appealed; the Missouri Supreme Court granted transfer.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the statement "Lot 335 would not flood" is a representation of existing fact (lower scienter) or of future events (higher scienter).	Stevens: "would not flood" is shorthand for an existing-fact assurance (e.g., "there are no problems"), so scienter can be shown by lack of knowledge.	Jones: The phrasing "would not flood" and its context make it predictive/conditional about future events, requiring proof Jones knew it was false when made.	Court: "Would not flood" is a prediction/statement about future events; MAI 23.05 properly required actual knowledge of falsity at the time of the statement.

Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322 S.W.3d 112 (Mo. banc 2010) (distinguishes misrepresentations of existing fact from promises about future conduct; intent at time of statement is dispositive for future-event claims)
Powers v. Shore, 248 S.W.2d 1 (Mo. banc 1952) (truth or falsity of representation assessed at time made and relied upon)
White v. Mulvania, 575 S.W.2d 184 (Mo. banc 1978) (state of mind or intent is an existing fact that can be misrepresented)
Wilson v. Murch, 354 S.W.2d 332 (Mo. App. 1962) (existing-fact misrepresentation may be proven by showing speaker made statements while consciously without knowledge of their truth)
Dillard v. Earnhart, 457 S.W.2d 666 (Mo. 1970) (fraud based on assurances of future performance requires proof of no intention to perform when promise was made)
Lowther v. Hays, 225 S.W.2d 708 (Mo. 1950) (statements that are mere opinion, expectation, or prediction for the future do not support fraud without intent evidence)
Klecker v. Sutton, 523 S.W.2d 558 (Mo. App. 1975) (discusses appropriate scienter submission for future-event representations)
Wolk v. Churchill, 696 F.2d 621 (8th Cir. 1982) (treats submission standards for future promises versus existing facts)
Judy v. Ark. Log Homes, Inc., 923 S.W.2d 409 (Mo. App. 1996) (builder's representations about existing, factual qualities of a home can be submitted with lesser scienter)