Law School Case Brief
Massie v. Colvin - 373 S.W.3d 469 (Mo. Ct. App. 2012)
Statements, representations, or predictions about an independent third party's future acts do not constitute actionable misrepresentation. Negligent misrepresentation and fraudulent 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.
The Colvins listed their farm for sale with United Country. Plaintiff Massie viewed it and expressed an interest to United Country agent Christina Madajik, but only if the property could be fenced and gated. Madajik 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 the neighbor would agree to a gate across the easement/road. Madajik replied that the neighbor 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. Plaintiff and the Colvins eventually settled on a price. At Plaintiff's request, the real estate contract included a special agreement between Plaintiff and Mr. Colvin about erecting fencing and gates. Five months passed before the closing, which was attended by Plaintiff, 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 employee 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. Neighbor Jones then objected to the gate, later filed suit, and won a judgment against Plaintiff for removal of the gate and $3,500 damages. Plaintiff then sued the Colvins for fraudulent misrepresentation and United Country for negligent misrepresentation. After discovery, each party sought summary judgment. Deeming the operative facts essentially undisputed, the trial court assumed the truth of Plaintiff's factual allegations, but ruled all motions against Plaintiff on the ground that Plaintiff had constructive notice and actual knowledge of the easement.
Did the court err in its summary judgment against the plaintiff/buyer?
The judgment was affirmed. The Court held that the trial court did not err in awarding summary judgment to the land sellers and the real estate agency in the buyer's action for fraudulent misrepresentation and negligent misrepresentation. The buyer never contacted a neighbor in the weeks preceding her offer or during the five-month delay prior to closing to ask him whether she could install fencing and a gate across an easement. Statements by third parties were mere predictions or opinions that things would work out for the buyer to have a gate, with the neighbor's consent or acquiescence, despite the recorded easement.
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