Dancin Development, L.L.C. v. NRT Missouri, Inc.Dancin Development, L.L.C. v. NRT Missouri, Inc.
OPINION
Dancin Development, L.L.C. (hereinafter, “Appellant”) brought suit against NRT Missouri, Inc. d/b/a Coldwell Banker Gun-daker and Patty Emory (hereinafter and collectively, “Respondent”) for fraudulent misrepresentation, negligent misrepresentation, breach of contract, and breach of fiduciary duty connected to their efforts in procuring a parcel of residential real estate (hereinafter, “the Property”) for reha
Appellant, as a company, was formed for the purpose of investing in real estate rehabilitation and resale. Respondent was retained to list and sell condominiums at one of the properties Appellant owned. During that transaction, Appellant and Respondent worked well together and sold the properties Appellant requested at close to their listing price.
Appellant indicated to Respondent that it was willing to consider new investment opportunities. Respondent then showed Appellant the Property. Appellant decided that based upon the success of its previous condominium conversion, it would attempt to acquire the Property for resale as either a multi-family residence or condominiums. Appellant successfully acquired the Property and resold it at a $200,000 loss.
Appellant then brought this action, claiming Respondent committed fraudulent misrepresentation, negligent misrepresentation, breach of contract, and breach of fiduciary duty. The trial court entered summary judgment in favor of Respondent. Appellant brings this appeal.
This Court must determine its jurisdiction
sua sponte
in every case it reviews.
Firm Entertainment Group, LLC v. City of St. Louis,
Appellant’s first point on appeal states: “THE TRIAL COURT ERRED BY SUSTAINING [RESPONDENT’S] JOINT MOTION FOR SUMMARY JUDGMENT AND STATING THAT THERE WERE NO GENUINE ISSUES OF MATERIAL FACT, SINCE THERE WERE A SIGNIFICANT NUMBER OF ISSUES OF MATERIAL FACT RELATING TO AT LEAST ONE KEY ELEMENT OF EACH COUNT OF APPELLANT’S CAUSE OF ACTION, THEREBY PRECLUDING THE ENTRY OF SUMMARY JUDGMENT.” We dismiss this point.
Rule 84.04(d) directs appellants in the proper manner in which to present issues to this Court. The rule requires that each point relied on “(A) identify the trial court ruling or action that the appellant challenges; (B) state concisely the legal reasons for the appellant’s claim of reversible error; and (C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.” Rule 84.04(d)(1);
see also Houston v. Weisman,
Appellant’s point alleges the trial court committed error, but it fails to provide any legal reason for that reversible error nor does it explain any legal reason which would support its claim of reversible error. Accordingly, this point merely constitutes an abstract statement of error and does not preserve anything for this Court to review.
Firm Entertainment,
The remainder of Appellant’s appeal deals with the entry of summary judgment in favor of Respondent. In review of summary judgment, we review the record in the light most favorable to the party against whom the judgment was entered.
ITT Commercial Finance v. Mid-America Marine,
The right to summary judgment may be established by a defending party by demonstrating “facts that negate
any one
of the claimant’s elements.... ”
Fetick v. American Cyanamid Co.,
Appellant’s second point on appeal alleges the trial court erred in entering summary judgment in favor of Respondent with respect to its claim for fraudulent misrepresentation. Appellant claims there were genuine issues of material fact demonstrating it had a right to rely on Respondent’s expertise regarding the value and future profitability of the Property.
To state a claim for fraudulent misrepresentation, a plaintiff must plead facts that support each of the following elements:
(1) a false, material representation; (2) the speaker’s knowledge of the falsity of the representation, or ignorance of its truth; (3) the speaker’s intent that the hearer act upon the misrepresentation in a manner reasonably contemplated; (4) the hearer’s ignorance of the falsity of the misrepresentation; (5) the hearer’s reliance on the truth of the representation; (6) the hearer’s right to rely thereon; and (7) the hearer’s consequent and proximately caused damage.
Midwest Bankcentre v. Old Republic Title Co. of St. Louis,
“Mere statements of opinion, expectations, and predictions for the future are insufficient to authorize a recovery for fraudulent misrepresentation.”
Trotter’s Corp. v. Ringleader Restaurants, Inc.,
In this case, Appellant avers that it had a right to rely upon Respondent’s opinion regarding the value of the Property and its future profitability because it was an “ignorant” party. However, in Appellant’s deposition it admits that it did not agree with Respondent’s initial opinion regarding the value of the Property. Appellant further demonstrated its independence from reliance upon Respondent’s valuation opinion in that its initial offer for the Property was lower than suggested by Respondent. Appellant would like to characterize itself as an ignorant buyer, yet, the record reflects Appellant was involved at least one other prior condominium conversion. Additionally, Appellant was active in the investigation and purchase of the Property. Further, Appellant stated it realized there was no guarantee of any amount of profit that could be made from purchasing and reselling the Property.
Appellant cannot establish it had a right to rely upon Respondent’s opinion as to the value of the Property. Hence, it is unable to meet all of the elements of fraudulent misrepresentation. Appellant failed to demonstrate there was a genuine issue of material fact at issue to preclude summary judgment. Point denied.
Appellant claims in its third point on appeal the trial court erred in granting summary judgment in favor of Respondent on its claim for negligent misrepresentation. Appellant believes it had a right to rely on Respondent’s representation of the investment value and future profitability of the Property.
To state a claim for negligent misrepresentation, a plaintiff must plead facts that support each of the following elements:
(1) the speaker supplied information in the course of his business; (2) because of the speaker’s failure to exercise reasonable care, the information was false; (3) the information was intentionally provided by the speaker for the guidance of limited persons in a particular business transaction; (4) the hearer justifiably relied on the information; and (5) due to the hearer’s reliance on the information, the hearer suffered a pecuniary loss.
Midwest Bankcentre,
As in Appellant’s second point, Appellant failed to demonstrate it had a right to rely upon Respondent’s prediction of the future profitability of the Property.
In its fourth point on appeal, Appellant claims the trial court erred in granting summary judgment in favor of Respondent on its breach of contract claim. Appellant avers there was an agreement to sell the Property for a guaranteed profit.
The essential elements of a contract in Missouri are: “(1) competency of the parties to contract; (2) subject matter; (3) legal consideration; (4) mutuality of agreement; and (5) mutuality of obligation.”
Olathe Millwork Co. v. Dulin,
“Mutuality of agreement is determined by looking to the intentions of the parties as expressed or manifested in their words or acts.”
Ketcherside v. McLane,
Here, there was undisputed evidence the parties were not specific in their negotiations and thereby reserved the essential terms of the “significant profit” for a future determination. Appellant admits it never asked Respondent to guarantee a certain amount of profit on the Property. Further, Appellant concedes it knows there is no guarantee of property values. Accordingly, there can be no breach of contract claim in that there was no contract formed guaranteeing a profit because the element of mutuality of agreement is lacking. Hence, the trial court did not err. Point denied.
Appellant’s final point on appeal alleges the trial court erred by entering summary judgment in favor of Respondent regarding its claim of breach of fiduciary duty. Appellant avers there are material issues of fact regarding Respondent’s solicitation of Appellant, the representation of a significant profit, and improper valuation of the Property.
In a real estate transaction, the fiduciary duty of the agent is defined by Sections 339.710-339.860 RSMo (2000). 2 The specifics for sellers’ agents and buyers’ agents are set forth in Sections 339.730 and 339.740, respectively.
While Appellant lists many facts which it believes are issues, it fails to identify any fact that is a genuine issue of material fact demonstrating Respondent breached its statutory duty. Appellant is in the business of finding, purchasing, rehabilitating, and reselling properties; hence, it wanted to be shown possible investment properties. Appellant’s own statements indicate it knew there was no guarantee of a profit on the Property resale. Appellant also described its independent investigation of the Property. Appellant stated it disagreed with Respondent’s valuation of the Property and acted on its own beliefs. None of these issues express a genuine issue of material fact that Respondent breached its duty. Hence, the trial court did not err in granting summary judgment in favor of Respondent. Point denied.