A reasonable company in Lafarge's position with a correct understanding of the law would have attached importance to the Strother District. That Lafarge was mistaken in its understanding of the law goes to the subjective importance it would have placed on the Strother District, not the importance a reasonable company would have placed on the same information. See Osterberger v. Hites Constr. Co., 599 S.W.2d 221, 228 (Mo.Ct.App. 1980) ("The test of materiality . . . is not, subjectively, whether the fact concealed would have affected the conduct of the particular buyer concerned but, rather, whether, objectively, the fact concealed would have affected the conduct of a reasonably prudent buyer."). While the importance Lafarge would have placed on the Strother District because of its beliefs concerning its tax obligations is relevant for purposes of causation — i.e., whether Lafarge in fact would have proceeded differently had it known of the Strother District — it is irrelevant with respect to materiality.
The Wilkerson agency, acting as Cedar Hill's agent, sent notices to add the Roses to the policies as mortgagees in several years, but in each instance, it failed to add Rockwood Bank as a mortgagee. The jury was free to view the disclosure of partial information as tantamount to an intentional concealment of the information not disclosed. Osterberger v. Hites Constr. Co., 599 S.W.2d 221, 227 (Mo.Ct.App. 1980) ("[W]e have found that partial information may be as misleading and deceptive as active misrepresentation, and we have imposed a duty to disclose material facts where the defendant has invited plaintiff's confidence by making only a partial disclosure."). In addition, Cedar Hill and the Wilkerson agency failed to list the Rockwood Bank mortgage in response to ARA's request for updated information in 2002, and they failed to disclose the Rockwood Bank mortgage when disclosing the Roses' mortgage in November 2002.
However, “[f]raud can be shown by circumstantial evidence[.]” Osterberger v. Hites Construction Company, 599 S.W.2d 221, 229 (Mo.App. E.D.1980). As “fraud is seldom capable of direct proof,” it may be established by a variety of circumstances combined together.
However, “[f]raud can be shown by circumstantial evidence[.]” Osterberger v. Hites Construction Company, 599 S.W.2d 221, 229 (Mo.App. E.D.1980). As “fraud is seldom capable of direct proof,” it may be established by a variety of circumstances combined together.
In a court-tried case, where there are no findings of fact or conclusions of law, all issues are to be deemed found in accordance with the result reached and the judgment affirmed if it could be rendered on any reasonable theory. Osterberger v. Hites Constr. Co. , 599 S.W.2d 221, 225 (Mo. App. 1980). On appeal, we accept as true all evidence and permissible inferences favorable to respondents, the prevailing parties, and disregard any contradictory evidence.
Attorney's fees are awarded to equitably balance benefits only if the party seeking the fees has demonstrated "very unusual circumstances" justifying an award of fees. Osterberger v. Hites Const. Co., 599 S.W.2d 221, 230 (Mo.App.E.D. 1980). "Very unusual circumstances" has been construed to mean an unusual type of case, or unusually complicated litigation.
The Complaint alleges that Kohlberg is an officer of Kane and serves as its President and CEO. (Complaint, ¶¶3, 43). Kohlberg can be liable if he had actual or constructive knowledge of the tortious corporate conduct and participated in the wrong. See Grothe v. Helterbrand, 946 S.W.2d 301, 304 (Mo. Ct. App. 1997) (citing Lynch v. Blanke Baer & Bowey Krimko, Inc., 901 S.W.2d 147, 153[15] (Mo.App.1995); Boyd, 664 S.W.2d at 598[1]; Osterberger v. Hites Constr. Co., 599 S.W.2d 221, 229[20] (Mo.App.1980) ("corporate officers may be held individually liable for tortious corporate conduct if they have actual or constructive knowledge of, and participated in, an actionable wrong."). The Complaint alleges, "[a]s Kane's President, Kohlberg is and has been ultimately responsible for all aspects of Kane's business. Kohlberg was also the mastermind behind the Kane Conspiracy."
In reply, plaintiff suggests that this opinion is not relevant; instead, plaintiff indicates that defendants have conflated rental value or fair market value-neither of which the statute addresses-with the terms used in the statute, the "value of the property" to a reasonable prudent purchaser. See Osterberger v. Hites Constr. Co., 599 S.W.2d 221, 228 (Mo. App. E.D. 1980) (finding the test is whether "the fact concealed would have affected the conduct of a reasonably prudent buyer"). Plaintiff states that had Lafarge been apprised of the Strother TDD, or had Lafarge known that Discovery Group was not meeting with government officials to understand local government policies and economic incentives as they represented, Lafarge, as a reasonably prudent company, would never have agreed to relocate to Lee's Summit. Plaintiff indicates that the fair market value of the property is irrelevant to this inquiry, and therefore Jaggers' opinions are irrelevant and would serve to do nothing but confuse the jury.
Under Missouri law, corporate officers may be held individually liable for tortious corporate conduct if they have actual or constructive knowledge of, and participated in, an actionable wrong. Boyd v. Wimes, 664 S.W.2d 596, 598 (Mo.Ct.App. 1984); Osterberger v. Hites Constr. Co., 599 S.W.2d 221, 229 (Mo.Ct.App. 1980). In Sections III.E.1 and III.E.2 of this order, the court found that whether Chartnet and Saztec are liable for tortiously interfering with the Asset Purchase Agreement and Employment Agreement constitute genuine issues of fact for trial.
Officers of a corporation are individually liable for tortious corporate conduct in which they knowingly participate. Honigmann v. Hunter Group, Inc., 733 S.W.2d 799, 807 (Mo.App. 1987); Osterberger v. Hites Const. Co., 599 S.W.2d 221, 229 (Mo.App. 1980). Accordingly, Wining and Schonacher are personally liable to Omaha Indemnity for the damages caused by RAM.