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7 Most Common Claims in Missouri Real Estate Litigation

Litigation, St. Louis Construction Law Attorney Shares, St. Louis Real Estate, , , , , , , , , , , ,

Are you looking to buy or sell a home? Are you a real estate agent assisting someone with purchasing or selling a home?

Are you prepared to go to court after the closing?

Given the complexity of Missouri real estate laws and the inordinate amount of issues that can arise, buyers, sellers, and real estate agents face a real threat of becoming a party to litigation after participating in Missouri real estate transactions.  Even those parties who comply with all laws and regulations face exposure to litigation merely by virtue of their involvement in the transaction.

This guilt-by-association-esque approach may not seem right, but it is an unfortunate reality when something goes awry in a real estate transaction.  While there is no guarantee that you will not be named as a defendant in a lawsuit, there are certain things that can be done to greatly reduce the probability of winding up in litigation.

Based on my experience litigating these cases, the 7 most commonly alleged claims involving Missouri real estate transactions are set forth in this article.  The prudent real estate agent, homebuyer and/or home seller will educate themselves regarding these claims to know the potential pitfalls, so they are in a better position to avoid exposure to liability and the unpleasantries that accompany a lawsuit.

The table of contents on this page enumerates the 7 claims that are most common when litigating real estate transactions.  Each claim is discussed more fully under its respective heading.

1. Fraud

The elements of a fraud claim in Missouri are: “(1) a representation;  (2) its falsity;  (3) its materiality;  (4) the speaker’s knowledge of its falsity;  (5) the speaker’s intent that it should be acted on by the person and in the manner reasonably contemplated;  (6) the hearer’s ignorance of the falsity of the representation;  (7) the hearer’s reliance on the representation being true;  (8) his right to rely thereon;  and, (9) the hearer’s consequent and proximately caused injury.”  Droz v. Trump, 965 S.W.2d 436 (Mo. App.W.D., 1998); see also Green Acres Enterprises, Inc. v. Nitsche, 636 S.W.2d 149, 153 (Mo.App.1982); Hanrahan v. Nashua Corp., 752 S.W.2d 878, 883 (Mo. Ct. App. 1988).

Fraud is a term used in everyday speak.  We know the meaning, but most people don’t know the 9 elements in Missouri that make up a fraud claim.  While these are merely technical elements in Missouri law, in laymen’s terms, fraud is synonymous with lying.  Thus, even if you don’t choose to memorize the above elements, just remember that if you don’t lie, you probably won’t find yourself on the other end of a fraud claim (no guarantees, but it should greatly reduce the probability).

Statute of Limitations

  • 5 year or 15 year Statute of Limitations (depending on tolling)—S.Mo. § 516.120(5)

R.S.Mo. § 516.120(5) states: “[a]n action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud.”

“[T]he cause of action does not accrue from discovery of the fraud. If ten years elapse without discovery of the fraudulent acts, the statute of limitations begins to run and after five years the cause of action is barred, even if the fraud has not yet been discovered. Id. at 798. This means that the latest a fraud claim may be brought is 15 years after the fraud occurred.” State ex rel. Stifel, Nicolaus & Co., Inc. v. Clymer, 522 S.W.2d 793, 798 (Mo. banc 1975).

Thus, an action for fraud accrues not when the damage occurs or can be ascertained, but when “facts constituting the fraud are discovered.” Schwartz v. Lawson, 797 S.W.2d 828, 832 (Mo.App.1990). The statute of limitations begins to run at the time a cause of action in fraud accrues, which is when plaintiff “discovered or in the exercise of due diligence, should have discovered the fraud.” Gilmore v. Chicago Title Insurance Co., 926 S.W.2d 695, 698 (Mo.App.1996)(citing Burr v. National Life & Accident Insurance Co., 667 S.W.2d 5, 7 (Mo.App.1984)). “The plaintiff maintains the duty to make inquiry to discover the facts surrounding fraud. Where the means of discovery exist, the plaintiff will be deemed to have known of the fraud so as to begin the running of the statute.” Burr v. National Life & Acc. Ins. Co., 667 S.W.2d 5 (Mo. App.W.D., 1984).

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2. Violations of the Missouri Merchandising Practices Act

The Missouri Merchandising Practices Act is an act designed to protect consumers by leveling the playing field and incentivizing attorneys to take such cases where consumers are harmed.  In order to incentivize attorneys to take these cases, the Missouri legislature included the potential for recovery of attorney’s fees and punitive damages if violations of the Act are found.

Generally, consumers are not equipped to foot an expensive litigation bill, but with the potential for attorney’s fees, some attorneys are more inclined to take the case on a contingency basis (that mean’s that the client only pays attorney’s fees if the client succeeds).  This attorney’s fees possibility heightens the recovery potential and gives the consumer more leverage.

“Section 407.020 of the Missouri Revised Statutes, commonly known as the “Missouri Merchandising Practices Act,” provides that, ‘[t]he act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice, or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce … is declared to be an unlawful practice.’ The scope of the MPA is broad. Section 407.025 provides a civil cause of action to consumers who purchase goods or services and suffer damages due to any of the aforesaid unlawful practices.” In re McClelland, 06-41720, 2008 WL 5157685 (Bankr. W.D. Mo. June 20, 2008).

One case simplifies the foregoing paragraph in a succinct manner, “[i]n a private lawsuit for violation of the Missouri Merchandising Practices Act (MMPA), plaintiffs must demonstrate that they:

  • (1) purchased merchandise…from defendants;
  • (2) for personal, family, or household purposes; and
  • (3) suffered an ascertainable loss of money or property;
  • (4) as a result of an act declared unlawful under the Merchandising Practices Act.”

Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 773 (Mo. banc 2007); Edmonds v. Hough, 344 S.W.3d 219 (Mo. App.2011)(spacing and emphasis added).

The following is a more descriptive breakdown of each element necessary to satisfy the Missouri Merchandising Practices Act (“MMPA”).

(1) purchased merchandise…from defendants

R.S.Mo. § 407.010 (4) defines merchandise as the following: “any objects, wares, goods, commodities, intangibles, real estate or services.”

Based on the definition alone, the first element of the MMPA is satisfied because real estate is considered merchandise. Accordingly, the first element is satisfied by virtue of the type of transaction. Due to the long reach of the MMPA, there is potential that the legislature may amend the MMPA to narrow it.  Particularly with the Republican administration in 2017, there is a chance that the MMPA could be greatly limited.

However, at this point, it is difficult to say whether that limitation would involve the definitions section or would limit the reach of the MMPA as to whom it applies (i.e., only merchants).

It should be noted, though, that because the aim of the MMPA is to protect consumers, and because the MMPA allows buyers of residential real estate (typically consumers) to bring an MMPA claim against sellers of residential real estate (oftentimes consumers), the leverage contained in R.S.Mo. § 407.025, which potentially allows for the recovery of attorney’s fees and punitives, not only works for consumers, but also works against them.

The contrary argument to this policy stance is that most real estate contracts that are drafted by sophisticated parties (which are most contracts used by real estate agents and brokerage firms these days) contain a clause which awards attorney’s fees to the prevailing party.  However, the distinction lies in the vast reach of the violative acts (which are discussed below under element 4 of the MMPA) versus the requirements that the party prevail on the breach of contract claim.  To capitalize on the attorney’s fees provision in the real estate contract, the prevailing party would, presumably, have to prevail on the breach of contract claim.  Because the prevailing party would have to prove breach, this would require a greater burden than merely proving that the party violated an act under the MMPA.

The opposing side would then argue that the safeguard under the MMPA is that the judge ultimately decides whether attorney’s fees are awarded at the conclusion of the case.  Thus, if the court believes in equity that attorney’s fees are warranted, then reasonable fees will be awarded.

A contractual provision providing for the award of attorney’s fees, does not allow for such flexibility.  In any event, the foregoing discussion merely elucidates the advantages and disadvantages of modifying the extent that the MMPA applies to real estate transactions, the application to transactions in which a consumer is the seller, and how attorney’s fees may affect/undermine the legislature’s intent.

(2) for personal, family, or household purposes

This element is very factually based.  If the purpose of the transaction is personal and will be used as the buyer’s principal residence, then it satisfies this element.  If the purchase of the property is to be used as rental property, there is a legitimate question as to whether this element is satisfied.

There is a high probability that the court will find that this element is not satisfied for rental property because it is for commercial purposes and is not used for personal, family or household purposes.

(3) suffered an ascertainable loss of money or property

As it pertains to the MMPA, the Missouri Court of Appeals stated that “[t]he defrauded party should be awarded the difference between the actual value of the property and the value if it had been as represented, measuring the damages at the time of the transaction.” Schoenlein v. Routt Homes, Inc., 260 S.W.3d 852 (Mo. App., 2008).

(4) as a result of an act declared unlawful under the Merchandising Practices Act

The following are the unlawful acts seen most frequently in the real estate context:

a) Misrepresentation

A misrepresentation is defined as “an assertion that is not in accord with the facts”

When proving a misrepresentation pursuant to the MMPA, a plaintiff does not need to prove

  • Reliance,
  • Knowledge that the assertion is misleading/false, or
  • Any culpable mental state. 15 CSR 60-9.070

b) Half-Truth

A half-truth in its simplest form is defined as a situation where a party “[o]mit[s] to state a material fact necessary in order to make statements made…not misleading.” 15 CSR 60-9.090

c) Omission of a Material Fact

An omission of a material fact is defined as “any failure by a person to disclose material facts known to him/her, or upon reasonable inquiry would be known to him/her.” 15 CSR 60-9.110 (3)

When proving an omission of a material fact pursuant to the MMPA, a Plaintiff does not need to prove:

  • Reliance, or
  • Intent. 15 CSR 60-9.110 (4)

d) Unfair Practice

An unfair practice is any practice that:

1A. Offends any public policy as it has been established by

  • Constitution
  • Statutes
  • MO Common law
  • Federal Trade Commission & interpretive decisions

or

1B. Is unethical, oppressive, or unscrupulous           

and

2. Presents risk or causes substantial injury to consumers

15 CSR 60-8.020

Statute of Limitations

  • 5 Year Statute of Limitations—S.Mo. § 516.120(2)

“The statute of limitations [for violations of the MMPA] begins to accrue when the Plaintiff has

[1] knowledge of the wrong and at least nominal damage, or

[2] knowledge that puts plaintiff on notice to inquire further.”

 Ball v. Friese Constr. Co., 348 S.W.3d 172 (Mo. App., 2011)(emphasis and spacing added).

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3. Breach of Contract

“The essential elements of a breach of contract action include: (1) the existence and terms of a contract; (2) that plaintiff performed or tendered performance pursuant to the contract; (3) breach of the contract by the defendant; and (4) damages suffered by the plaintiff.” Martha’s Hands, LLC v. Rothman, 328 S.W.3d 474, 479 (Mo. Ct. App. 2010)(citing Keveney v. Mo. Military Acad., 304 S.W.3d 98, 104 (Mo. banc 2010)).

A breach of contract in a real estate scenario can be the seller or buyer suing the opposing party (buyer or seller) on the basis that their actions constituted a breach of contract.  In a similar vein, the buyer or seller may sue their real estate agent or the brokerage firm, usually, whichever entity/person was named on the buyer or seller’s agency agreement.

While the agent has statutory duties s/he must carry out, the agency contract often incorporates a number of said duties as well as its own independent duties (typically).  Violation of the statutory duties incorporated into the contract could be the basis for the breach of contract claim.  In the event the MMPA claim is not sufficient or groundless against the real estate agent, the breach of contract claim might be the only avenue of recovery.

Statute of Limitations

  • 5 Year Statute of Limitations—S.Mo. § 516.120(1)

“The statute of limitations begins to run “after the causes of action shall have accrued.” § 516.100. But a “cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment.” Id. A cause of action is capable of ascertainment “‘when a reasonable person would have been put on notice that an injury and substantial damages may have occurred and would have undertaken to ascertain the extent of the damages.'” State ex rel. Old Dominion Freight Line, Inc. v. Dally, 369 S.W.3d 773, 778 (Mo. App. S.D. 2012) (quoting Powel v. Chaminade Coll. Preparatory, Inc., 197 S.W.3d 576, 584 (Mo. banc 2006)). “‘At that point, the damages would be sustained and capable of ascertainment as an objective matter.'” Id. (quoting Powel, 197 S.W.3d at 584-85).” N. Farms, Inc. v. Jenkins (Mo. App., 2015).

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4. Breach of Fiduciary Duty

The agent’s statutory duties include the duty of care and loyalty, which are the essence of a fiduciary duty.

To establish a claim for breach of a fiduciary duty, a plaintiff must prove: (1) the existence of a fiduciary duty between the plaintiff and the defending party; (2) “‘that the defending party breached the duty'”; and (3) “‘that the breach caused the [plaintiff] to suffer harm.'” Henry v. Farmers Ins. Co., 444 S.W.3d 471 (Mo. App., 2014)(citing W. Blue Print Co. v. Roberts, 367 S.W.3d 7, 15 (Mo. banc 2012)).

“Whether a fiduciary duty exists is a question of law, while the breach of that duty is for the trier of fact to decide.” W. Blue Print Co. v. Roberts, 367 S.W.3d 7, 33 IER Cases 1397 (Mo., 2012).

It should be noted that the seller does not have a fiduciary duty to the buyer, and the buyer does not have a fiduciary duty to the seller.  Thus, these would not be valid claims against the other party.  These claims should be reserved to be alleged solely against the real estate agents and/or brokerage firms, depending on whether the situation lends to such claim.

Statute of Limitations

  • 5 Year Statute of Limitations—R.S.Mo. § 516.120(4); N. Farms, Inc. v. Jenkins (Mo. App., 2015).

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5. Negligent Misrepresentation

The elements of negligent misrepresentation are: “(1) speaker supplied information in the course of his business or because of some other pecuniary interest; (2) due to speaker’s failure to exercise reasonable care or competence in obtaining or communicating this information, the information was false; (3) speaker intentionally provided the information for the guidance of a limited group of persons in a particular business transaction; (4) listener justifiably relied on the information; and (5) that as a result of listener’s reliance on the statement, he/she suffered a pecuniary loss.” White v. Bowman, 304 SW 3d 141 (Mo. App., 2009).

A negligent misrepresentation claim is the hedge for a fraudulent misrepresentation claim.  In real estate litigation, usually a negligent misrepresentation claim is brought against the seller (if it deals with misrepresentation) and the seller’s agent and/or the listing agent, again, depending on what the facts the case indicate.

Statute of Limitations

  • 5 Year Statute of Limitations—R.S.Mo. § 516.120(4); Branstad v. Kinstler, 166 S.W.3d 134 (Mo, 2005).

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6. Negligence/Negligence Per Se

In a negligence action, the plaintiff must allege and prove facts which show: “1) the existence of a duty on the part of the defendant to protect plaintiffs from injury; 2) failure of defendant to perform that duty; and 3) injury to plaintiffs resulting from such failure.” Hill v. Gen. Motors Corp., 637 S.W.2d 382, 384 (Mo.App. E.D.1982) (citing Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. banc 1976)). “The particular standard of care that society recognizes as applicable under a given set of facts is a question of law for the courts. Whether a defendant’s conduct falls short of the standard of care is a question of fact for the jury.” Harris v. Niehaus, 857 S.W.2d 222, 225 (Mo. banc 1993). Thompson v. Brown & Williamson Tobacco Corp., 207 S.W.3d 76 (Mo. App., 2006).

Negligence Per Se is a variation of negligence in which the duty is set by statute rather than by common law.  “Negligence per se arises when the legislature pronounces in a statute what the conduct of a reasonable person must be and the court adopts the statutory standard of care to define the standard of conduct of a reasonable person.” Dibrill v. Normandy Assoc. Inc., 383 S.W.3d 77, 84 (Mo.App. E.D.2012).

To prevail on a negligence per se claim, “the following four elements [must be] met: (1) There was, in fact, a violation of the statute; (2) The injured plaintiff was a member of the class of persons intended to be protected by the statute; (3) The injury complained of was of the kind the statute was designed to prevent; and (4) The violation of the statute was the proximate cause of the injury.” King v. Morgan, 873 S.W.2d 272, 275 (Mo.App. W.D. 1994).

“If a submissible case is made under a negligence per se cause of action, a plaintiff could recover if a jury concluded that a statute was violated and the violation was the proximate cause of the injury.” Sill v. Burlington N. R.R., 87 S.W.3d 386, 392 (Mo. Ct. App. 2002)(citing Vintila v. Drassen, 52 S.W.3d 28, 37 (Mo.App. S.D.2001). Thus, “if the [jury] instruction were based upon the theory of negligence per se, the jury would begin their inquiry with the question of proximate cause.” Id.

Statute of Limitations

  • 5 Year Statute of Limitations—R.S.Mo. § 516.120(2) & (4); Kueneke v. Jeggle, 658 S.W.2d 516 (Mo. App. E.D., 1983); Nuspl v. Missouri Medical Ins. Co., 842 S.W.2d 920 (Mo. App. E.D., 1992).

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7. Unjust Enrichment

Unjust enrichment is brought in a majority of lawsuits and usually acts as the catch-all claim.  Unjust enrichment is an equitable claim created in the law, which seeks to arrive at an outcome the represents principles of fairness.

Most diligent attorneys bring this claim in addition to the other relevant claims to ensure that the claimant can maintain his/her cause of action even if the court decides that no contract existed between the parties (or that there is no claim at law).

The elements of an unjust enrichment claim are: “the plaintiff must prove that (1) he conferred a benefit on the defendant; (2) the defendant appreciated the benefit; and (3) the defendant accepted and retained the benefit under inequitable and/or unjust circumstances.” Howard v. Turnbull, 316 S.W.3d 431, 436 (Mo. Ct. App. 2010); see also Hertz Corp. v. RAKS Hospitality, Inc., 196 S.W.3d 536, 543 (Mo.App. E.D.2006); Graves v. Berkowitz, 15 S.W.3d 59, 61 (Mo.App. W.D.2000). Even if a benefit is “conferred” and “appreciated,” if no injustice results from the defendant’s retention of the benefit, then no cause of action for unjust enrichment will lie. Howard v. Turnbull, 316 S.W.3d 431, 436 (Mo. Ct. App. 2010)(citing White v. Pruiett, 39 S.W.3d 857, 863 (Mo.App. W.D.2001)).

Statute of Limitations

  • 5 Year Statute of Limitations—R.S.Mo. § 516.120(1).

“Section 516.120(1) provides a five-year statute of limitations for ‘[a]ll actions upon contracts, obligations or liabilities, express or implied….’ An action for unjust enrichment is based on an implied or quasi-contractual obligation. Landmark Sys., Inc. v. Delmar Redev. Corp., 900 S.W.2d 258, 262 (Mo.App. E.D.1995). Such actions are subject to the five-year statute of limitations in Section 516.120(1). See Koppe v. Campbell, 318 S.W.3d 233, 240 (Mo.App. W.D.2010).” Royal Forest Condo. Owners’s Ass’n v. Kilgore, 416 S.W.3d 370 (Mo. App., 2013).

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Conclusion

Real estate transactions can give rise to various causes of action.  While there are no magic steps one can take to avoid a lawsuit, informing one’s self about the most common claims in Missouri real estate litigation may allow the reader to take preventative steps to reduce the possibility of litigation.

The following are the 7 most common claims that are brought in Missouri cases involving real estate matters:

  1. Fraud
  2. Violations of the Missouri Merchandising Practices Act
  3. Breach of Contract
  4. Breach of Fiduciary Duty
  5. Negligent Misrepresentation
  6. Negligence/Negligence Per Se
  7. Unjust Enrichment

While many of these claims are discussed above, one takeaway is that the truth almost always prevails. Thus, if there is some question as to the legality of certain actions, remember most people are best served by taking the higher road and erring on the side of disclosure or taking preventative measures and addressing all problems up front, rather than dealing with bigger issues after the fact.

If you have issues involving a real estate transaction or if you just have questions about a potential situation that could arise, please do not hesitate to contact our attorneys.  We’d be more than happy to assist you in any way that we can.

Please let us know real estate claims that you’ve dealt with and any feedback regarding the same in the comments section.

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St. Louis Real Estate Attorney

Litigation, St. Louis Real Estate, , , , , , , ,

Keys to Real Estate

Real Estate Lawyer

Purchasing real estate may be one of the most important decisions that you make in your life. When you’re considering the various options regarding a real estate purchase in St. Louis, you would be well-advised to consult with an experienced attorney who can inform you of your options.

Our attorneys are honored and privileged to assist our clients with a number of different St. Louis real estate transactions and other real property matters on a daily basis.

In our view, a real estate transaction is a process. Like any other process, there are numerous phases which a purchaser of real estate must go through in order to realize a successful transaction.

The first phase includes research and preparation.

Real Estate Research and Preparation

In order to have a smooth real estate transaction, common sense dictates that you need to do the proper research.

Some of this research includes finding the right real estate agent, finding the right attorney, performing background research on the property, performing searches on comparable sales in that area (your real estate agent can usually assist with this).

There are also a number of other things you need to do before diving into the real estate game, and your lawyer and real estate agent can likely assist with any preliminary questions or matters.

Some examples of issues to review before purchasing real estate include, but are not limited to:

  • checking the crime rate in the area in which the property is located
  • public school district in which the property is located
  • access to libraries, parks, malls, major interstates
  • noise from traffic or other disturbances
  • water drainage issues from neighboring properties
  • other general caveats for the buyer are discussed throughout this website

As part of the preparation process, the purchaser needs to be familiar with the material terms of the contract.

There are some complex provisions as well as boilerplate provisions in the typical real estate contract, and your real estate attorney can help you distinguish the two.

This preparation is necessary, so you know what you’re undertaking when you enter into the real estate purchase contract.

The bottom line is that you’re about to make an incredibly large investment, so you probably should rely on the advice of an attorney who deals with real property transactions on a regular basis.

Real Estate Contract Review and Preparation

Many people wait until after a dispute arises to contact an attorney, but you should inform yourself of the terms in the real estate contract as well as have a lawyer review the language contained in the contract.

This should all be done prior to purchasing the property in order to avoid the pitfalls that may accompany the purchase.

Sometimes the realtor may have a form contract that is approved by the local or regional real estate association, and these are often drafted to be fair for both parties.

However, if you have additional leverage in a real estate transaction, or have potential leverage, your attorney can provide suggestions to help you arrive at your desired outcome.

Additionally, there may be boilerplate language in the contract that significantly impacts your rights in the transaction.

Your lawyer can explain these things to you. This is particularly important when the language is complex, and you are unable to understand it.

So, in accordance with the above, regardless of whether you are a buyer or seller of real estate, you should have an attorney prepare or review your agreement to ensure that it is free from potentially hazardous provisions.

As noted above, a real estate transaction often involves a significant amount of money. When a lot of money is involved, logic dictates that the buyer or seller could potentially lose a lot of money if the transaction goes south.

As such, the assistance of an attorney can help you gain, preserve, or prevent the loss of valuable assets and/or money.

We have attorneys with experience litigating issues that arise from a real estate sale, attorneys who prepare all the documentation relating to the sale of property, and counselors who can help guide you and negotiate a home purchase or sale.

If you need assistance, contact a St. Louis Lawyer today.

Entrusting an Attorney to Handle Your Real Estate Transaction

While it may seem cost effective to negotiate the deal on your own, if any problems occur, it’s all on you. Hiring a lawyer to take on some of these issues can often allocate the burden of managing the case yourself.

Plus, you dish off the work to an attorney, whose job is specifically dedicated to litigation and preparing a case for you.

Ultimately, the attorney will take his time pursing the insurance carrier, or the other party with whom you’ve entered into the transaction.

That will allow you more time to focus on your business. If things work out correctly, your claim may even provide for attorney’s fees which would take care of the legal fees.

If you need assistance with a real estate matter, we can provide legal counsel with a number of different matters such as:

  • purchase and sale disputes,
  • construction claims,
  • landlord-tenant disputes,
  • claims involving adverse possession,
  • prescriptive easements,
  • quiet title and
  • other issues arising from or relating to real estate.

In addition to contractual language, other potential dangers in the purchase of property can result from defective titles, undisclosed facts on the seller’s disclosures, liens on the property, contingencies in the contract, and disputes with the real estate that remain unresolved.

These are just a few of the issues we can help you with.

We are happy to hear any real property issue that you have, and if we can’t help you with it, we can assist you in finding a competent attorney who can.

Please continue to research our site for more information and if you need further guidance, contact one of our St. Louis real estate attorneys today.

If you specifically need assistance with litigating a real estate matter, contact a litigation attorney here.

3 Defenses Missouri Construction Lawyers Can Assert in Consumer Cases

Missouri Construction Law, St. Louis Construction Law Attorney Shares, , , , , , , , ,

Hammer and nails

Defending Missouri Merchandising Practices Act Claims

Any contractors who work on residential property will inevitably have to deal with a difficult customer at some point in their career.

The customer may raise various issues about your work. like complaining about whether the work is defective or not, the aesthetic appeal, and a garden variety of other issues that arise in these situations.   

In the event that a consumer, or “putative consumer,” brings a claim against a contractor on the basis of the Missouri Merchandising Practices Act, the contractor’s attorney should know several defenses to protect the client from such claims.  

This article was designed to provide a few but certainly not all, common defenses used by a contractor in a Missouri Merchandising Practices Act claim case.  

The first defense deals with the issue of damages.

1.No ascertainable damages – the work was not defective, or even if it was defective, no damages resulted

One of the elements of a Missouri Merchandising Practices Act claim is that the damages need to be ascertainable.  Oftentimes the homeowner may be unpleased with the work product of a contractor, but the homeowner will not have actually incurred damages.  

The homeowner’s dissatisfaction with the aesthetics of a contractor’s work product might be an example of an area that may not cause the homeowner actual damages.

This is not always the case, however, as it may be a question of fact for the judge or jury to make a judgment call on as to what the contract says regarding aesthetics and/or whether the work was performed in a good and workmanlike manner.   

Another situation where the homeowner may not incur damages is if a contractor performs defective work on a project but subsequently remedies that defective work.

In any event, the damages element of the Missouri Merchandising Practices Act is a susceptible place which your lawyer should consider attacking in the event you are sued in these types of situations.

2. Superseding/Intervening Force (i.e., third party) caused damages

If the contractor was not the cause of the damages, then obviously the consumer’s claim is subject to attack.  This is a common defense as many projects consist of a slew of different people working on the job simultaneously.  

The work performed by one contractor may cause damage to or adversely affect the work of another contractor.  In these situations, the superseding/intervening force (another contractor) can be a defense to a Missouri Merchandising Practices Act claim.  

Depending on the language contained in the contract, acts of God may also relieve a contractor from contractual duties.  As this defense is specific to the factual circumstances, and in particularly the language in the contract, each case needs to be individually assessed.  

If you have a question about a construction law case, please feel free to contact one of our attorneys.

3. The construction work was not for personal, family, or household purposes

If you’re working on a residence, you still cannot be sure that the residence is owned by a consumer.  This element must be proven by the alleged consumer.  

However, when a project has commercial aspects or when the owner of the property, even if it appears residential, is a commercial entity, you may have a defense to a Missouri Merchandising Practices Act claim.

One example of a susceptible area of attack would be work performed on a rental home. Often times limited liability companies will own rental homes and will have a contractor perform work on their property.  

If you are a construction company defending a consumer protection act claim, you should always check the deed of the property and be cognizant of the entity that is making the payments.

Depending on the factual circumstances, a lawyer defending one of these cases may be well-advised to assert a defense attacking the personal, family, or household element.  

Conclusion: Contractor Defenses Against Consumers on a Construction Project

This article gives a few defenses that you can assert as a contractor if you’re caught in the middle of a consumer protection case.  There are other defenses out there, but you should always consult an experienced construction law attorney when preparing your defense in a case.  

The following is a list of the three potential defenses discussed in this article:

  • No ascertainable damages – the work was not defective, or even if it was defective, no damages resulted
  • Superseding/Intervening Force (i.e., third party) caused damages
  • The work was not for personal, family, or household purposes

Depending on the facts of your case, these defenses could be your liability shield. Your lawyer should be aware of these defenses and, more importantly, should assert them in any applicable cases.  

If you need help with defending a construction defect case or other construction project defense case, contact a construction law attorney here.