373 S.W.3d 469
Mo. Ct. App.
2012
DANIEL E. SCOTT, Judge.

Plaintiff1 sued land sellers and a real estate agency for misrepresentation. On cross-motions for summary judgment, the trial court assumed Plaintiffs factual allegations as true, yet ruled against her. We affirm the trial court’s judgment.

Background

We borrow liberally from the trial court’s recital of the facts. The Colvins listed their farm for sale with United Country. Plaintiff viewed it and expressed an interest to United Country agent Christina Madajik, but only if the property could be fenced and gated. Ma-dajik advised that neighbor Leroy Jones had an access easement across the property, but she opined that the issue could be worked out. Plaintiff asked Madajik whether Jones would agree to a gate across the еasement/road. Madajik replied that Jones would not mind. Madajik called Curt Dobbs, another United Country agent, who said Plaintiff would have no problem putting up a gate.

Plaintiff visited the property a second time with Madajik and the Colvins. Plaintiff reiterated her need for fencing and gates because of her animals. Mr. Colvin said that he saw no problems in that regard and agreed to erect same for Plaintiff. Madajik told Plaintiff that her father had worked with Jones, who was “a nice guy,” so Madajik expected no problem with the fencing and gates. Mr. Colvin expressed similar sentiments. Madajik later told Plaintiff that a title company had advised Dobbs that Plaintiff could gate the easement as lоng as she gave Jones a key.

Plaintiff and the Colvins eventually settled on a price. At Plaintiffs request, the real estate contract included a special agreement between Plaintiff and Mr. Col-vin about erecting fencing and gates.

For reasons immaterial to this case, five months passed before the closing, which was attended by Plаintiff, Madajik, and a title company employee. Plaintiff again said she did not want the property unless it could be fenced and gated. The title company emplоyee informed Plaintiff of the easement, which also was mentioned in the title commitment and the warranty deed. Plaintiff closed anyway, after which Mr. Colvin fenced the property and put a gate across the road easement.

Jones objected to the gate, later filed suit, and ultimately won a judgment against Plaintiff for removal of thе gate and $3,500 damages.2 Plaintiff then sued the Colvins for fraudulent misrepresentation and United Country for negligent misrepresentation. After discovery, each party sought summary judgment. Dеeming the operative ‍​​​​‌​​​‌​‌‌​‌‌‌​‌‌‌‌‌‌‌​​‌​​​​​‌‌​‌​​‌​​​​‌‌​‌​‍facts essentially undisputed, the trial court assumed the truth of Plaintiffs factual allegations, but ruled all motions against Plaintiff for three related, but seрarate, legal reasons:

1. Plaintiffs constructive notice of the easement per the recording statute, § 442.390.
2. Plaintiffs actual knowledge of the easement based on her property visits, conversations, title insurance commitment, etc.
3. The statements in question were opinions of future third-party actions (i.e., Jones’s consent), not аctionable representations of existing fact.

Defective Points

Although our review is de novo, it is Plaintiffs burden, as the appellant in this court, to show that summary judgment was improper. Ogg v. Mediacom, L.L.C., 142 S.W.3d 801, 808 n. 9 (Mo.App.2004). Unfortunately, we are hindеred by the form and substance of Plaintiffs points, which disregard Rule 84.04(d) and are nearly mirror images:

Point I
The trial court erred in not finding that [United Country] along loith its agents made negligent misreprеsentations ‍​​​​‌​​​‌​‌‌​‌‌‌​‌‌‌‌‌‌‌​​‌​​​​​‌‌​‌​​‌​​​​‌‌​‌​‍to [Plaintiff] and considering the recording statutes as controlling in this case.
Point II
The trial court erred in not finding that [the Colvins] made fraudulent misrepresentations to [Plaintiff] аnd considering the recording statutes as controlling in this case.

Ignoring Rule 84.04 violations for the moment, we find doubly flawed the complaints about “not finding that” misrepresentations wеre made. First, trial courts have no fact-finding role in summary judgment, since “it is not the ‘truth’ of the facts upon which the court focuses, but whether those facts are disputed.” ITT Commerсial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 382 (Mo. banc 1993).3 Second, the trial court expressly assumed as true “all of the Plaintiffs factual allegations.”

Moreover, nеither point offers legal reasons why the trial court could not treat the recording statutes as controlling (Rule 84.04(d)(1)(B)) or explains why these legal reasons support reversal in this case (Rule 84.04(d)(1)(C)). To speculate as to these would force us to don the cap of advocacy, contrary to our proper appellate role. Henson v. Henson, 195 S.W.3d 479, 484 (Mo.App.2006).

Even if we assume these flawed points are reviewable, they focus on one of several bases for summary judgment and ignore the rest. They do not supрort reversal since the judgment is proper for another reason.

No Justifiable Reliance

Inexplicably, Plaintiff never contacted Jones in the weeks preceding her offer ‍​​​​‌​​​‌​‌‌​‌‌‌​‌‌‌‌‌‌‌​​‌​​​​​‌‌​‌​​‌​​​​‌‌​‌​‍or during the five-month delay prior to closing. She claims that she:

never thought it was necessary to ask Jones himself if she could put up fencing and a gate across the easement on the property because of what Barry Colvin and Madajik had told her about Jones and their assurances that she could put up fencing and a gate across the easement on the property as well as Mada-jik’s phone call to Massie saying that Curt Dobbs had called the title company and the title company had told him that she could have a gate across the easement, she just could not put a lock on the gate.

None of these persons spoke for Jones, however, nor does Plaintiff so claim. In context, their statements were mere predictions or opinions that things would work out for Plaintiff to have a gate, with Jones’s cоnsent or acquiescence, despite the recorded easement.

“[A]s a matter of law, Plaintiff had no right to rely on any representation by the individual Defendants аs to what [Jones] might do in the future.” Rhodes Eng’g Co. v. Pub. Water Supply Dist. No. 1, 128 S.W.3d 550, 568 (Mo.App.2004). This applies to Plaintiffs fraudulent and negligent misrepresentation claims. See, e.g., Ryann Spencer Group, Inc. v. Assurance Co. of Am., 275 S.W.3d 284, 290-91 (Mo.App.2008) (fraud and negligent misrepresentation); Bohac v. Walsh, 223 S.W.3d 858, 863 (Mo.App.2007)(fraud); Rhodes Eng’g, 128 S.W.3d at 568 (fraud); Wellcraft Marine v. Lyell, 960 S.W.2d 542, 547 (Mo.App.1998)(negligent misrepresentation); Eureka Pipe, Inc. v. Cretcher-Lynch & Co., 754 S.W.2d 897, 898-99 (Mo.App.1988)(fraud).

Statements, representations, or predictions about an independent third party’s future acts simply do not constitute actionable misrepresentation. Ryann Spencer Group, 275 S.W.3d at 290-91. Negligent misrepresentation and fraudulеnt misrepresentation are treated comparably in this respect because both are “based on detrimental reliance ‍​​​​‌​​​‌​‌‌​‌‌‌​‌‌‌‌‌‌‌​​‌​​​​​‌‌​‌​​‌​​​​‌‌​‌​‍on a factual misrepresentation” and “require justifiable reliance on the misrepresentation, whether it be fraudulent or negligent.” Id. at 291.4 Either way, Plaintiff had no right to rely on third-party assertions of what Jones would or would not do. Id.

Conclusion

Summary judgment was proper, after adequate time for discovery, if Plaintiff was and would remain unable to prove some element of her claims. Maune ex rel. Maune v. City of Rolla, 203 S.W.3d 802, 804 (Mо.App.2006). Justifiable reliance was one such element. As a matter of law, Plaintiff had no right to rely on third-party representations about what Jones might do. See Rhodes Eng’g, 128 S.W.3d at 568. “[A] statement is not actionable that an independent third person ... will do some particular thing.” Eureka Pipe, 754 S.W.2d at 899.

We deny Plaintiffs points and affirm the judgment.

BARNEY and BATES, JJ., concur.

Notes

. We describe the parties as the trial court did in its judgment: Appellant Massie as "Plaintiff” and Respondents as "United Country” and "the Colvins” (or sometimes simply "Mr. Colvin”).

. Jones’s easement was recorded in 1997, runs with the land, and states that parties subject thereto "shall not obstruct passage thereon by gates or any other means.”

. ITT is Missouri’s "bible” on summary judgment. Our appellate courts ‍​​​​‌​​​‌​‌‌​‌‌‌​‌‌‌‌‌‌‌​​‌​​​​​‌‌​‌​​‌​​​​‌‌​‌​‍cite it, on average, in at least two opinions per week.

. The elements of fraudulent misrepresentation are: (1) a false, material representation; (2) the speaker’s knowledge of its falsity or his ignorance of its truth; (3) the speaker’s intent that it should be аcted upon by the hearer in the manner reasonably contemplated; (4) the hearer's ignorance of the falsity of the representation; (5) the hearer’s rеliance on its truth; (6) the hearer’s right to rely thereon; and (7) the hearer’s consequent and proximately caused injury. White v. Bowman, 304 S.W.3d 141, 147 (Mo.App.2009).

The elements of negligent misrepresentation are: (1) the speaker supplied information in the course of his business or because of some other pecuniary interest; (2) due to the speaker’s failure to exercise reasonablе care or competence in obtaining or communicating this information, the information was false; (3) the speaker intentionally provided the information for the guidance of a limited group of persons in a particular business transaction; (4) the hearer justifiably relied on the information; and (5) that as a result of the hearer’s reliance on the statement, he suffered a pecuniary loss. Id.

Failure of proof as to any one of these elements is fatal to either claim. Id.
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