Osterberger v. Hites Const. Co.

19 Citing cases

  1. Reis v. Peabody Coal Company

    997 S.W.2d 49 (Mo. Ct. App. 1999)   Cited 39 times
    In Reis, the plaintiffs invoked the arbitration clause of a mineral lease agreement, claiming that the defendant breached the lease and committed fraud.

    For a case of fraud based on suppression of a fact, a plaintiff must establish that the defendant had a duty to disclose a material fact. Smith v. General Motors Corp., 979 S.W.2d 127, 129 (Ky. Ct. App. 1998); Osterberger v. Hites Construction Co., 599 S.W.2d 221, 227 (Mo. App. 1980). "It is, of course, well established that mere silence is not fraudulent absent a duty to disclose."

  2. AFFORDABLE HEALTHCARE, LLC v. PROTUS IP SOLUTIONS, INC.

    Case No. 4:08CV502 RWS (E.D. Mo. Mar. 20, 2009)

    "To hold an officer of a corporation liable, he must be shown to have had actual or constructive knowledge of the actionable wrong and participated therein." Osterberger v. Hites Const. Co., 599 S.W.2d 221, 229 (Mo.Ct.App. 1980). See also Constance v. B.B.C. Development Co., 25 S.W.3d 571 (Mo.Ct.App. 2000).

  3. Roth v. La Societe Anonyme Turbomeca France

    120 S.W.3d 764 (Mo. Ct. App. 2003)   Cited 23 times
    Refusing to impute to an attorney his client's representations made in response to interrogatories and ruling, "Although an attorney is an agent of his or her client and acts as the client's alter ego, the converse is not true."

    A contract involving fraud in the inducement affords the victimized party a choice of remedies: to rescind the contract or to enforce it and sue independently for the damages resulting from the fraud. Cabinet Distributors, Inc. v. Redmond, 965 S.W.2d 309, 314 (Mo.App. 1998); Groothand v. Schlueter, 949 S.W.2d 923, 927 (Mo.App. 1997); Osterberger v. Hites Construction Company, 599 S.W.2d 221, 227 (Mo.App. 1980). The Mackley court acknowledged Metropolitan Paving but endeavored to distinguish it on the ground that it had concerned a contract dealing with the sale of bonds.

  4. Cabinet Distributors, Inc. v. Redmond

    965 S.W.2d 309 (Mo. Ct. App. 1998)   Cited 25 times
    Holding integration clauses cannot prevent claims for negligent misrepresentation as well as fraud

    In its final point plaintiff argues that the trial court erred in dismissing Count III, its alternate claim for rescission of the lease. A party who is fraudulently induced to enter a contract may affirm the contract and sue for damages or disaffirm the contract and sue in equity for rescission. Cottonhill Inv. Co. v. Boatman's Nat'l. Bank of Cape Girardeau, 887 S.W.2d 742, 744 (Mo. App. 1994); Osterberger v. Hites Constr. Co., 599 S.W.2d 221, 227 (Mo. App. 1980). Rescission may be based on actual fraud or an innocently made misrepresentation. Osterberger, 599 S.W.2d at 227.

  5. R.W. Murray Co. v. Shatterproof Glass Corp.

    697 F.2d 818 (8th Cir. 1983)   Cited 98 times
    Holding that the promise to repair or replace limits the remedy available to the consumer in the event of breach; it does not determine the nature of the warranty in question

    We note that appellants in the instant case characterize their misrepresentation claim as being one for fraudulent inducement to enter a contract, and that Missouri clearly recognizes such a cause of action. See, e.g., Timmons v. Bender, 601 S.W.2d 688 (Mo.App. 1980); Osterberger v.Hites Construction Co., 599 S.W.2d 221 (Mo.App. 1980). Generally, claims based on misrepresentation or fraud are distinct from and contain different elements than claims grounded on breach of warranty or contract.

  6. Top Gun Ammo Sales, LLC v. COF Techs.

    4:21-cv-00770-SEP (E.D. Mo. Mar. 18, 2022)   Cited 1 times

    But β€œ[t]o hold an officer of a corporation liable, he must be shown to have had actual or constructive knowledge of the actionable wrong and participated therein.” Protus, 2009 WL 775582, at *2 (quotation marks omitted) (quoting Osterberger v. Hites Constr. Co., 599 S.W.2d 221, 229 (Mo. App. 1980)). Top Gun has failed to allege facts or provide evidence showing that any specific Individual Defendant had actual or constructive knowledge of and participated in tortious conduct.

  7. U.S. Polymers-Accurez, LLC v. Kane Int'l Corp.

    No. 4:17-CV-2371 RLW (E.D. Mo. Sep. 19, 2018)   Cited 4 times

    The Complaint alleges that Kohlberg is an officer of Kane and serves as its President and CEO. (Complaint, ΒΆΒΆ3, 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."

  8. Energy Consumption Auditing Services, LLC v. Brightergy, LLC

    49 F. Supp. 3d 890 (D. Kan. 2014)   Cited 5 times

    An individual is not protected from liability simply because the acts constituting the tort were done in the scope and course, and pertained to, the duties of his [or her] employment [and] a corporate officer may be held individually liable for tortious corporate conduct if he or she had actual or constructive knowledge of, and participated in, an actionable wrong.State ex rel. Doe Run Res. Corp. v. Neill, 128 S.W.3d 502, 505 (Mo.banc 2004) (citations and internal quotation marks omitted); see also Constance v. B.B.C. Dev. Co., 25 S.W.3d 571, 590 (Mo.Ct.App.2000); Grothe v. Helterbrand, 946 S.W.2d 301, 304 (Mo.Ct.App.1997); Osterberger v. Hites Constr. Co., 599 S.W.2d 221, 229 (Mo.Ct.App.1980). Here, Brightergy alleges that Canady actually knew about and participated in the tortious conduct alleged by Brightergy. Def.'s Answer and Countercl. at 10, ΒΆ 7 (Doc. 5).

  9. Viasystems, Inc. v. M.M.G.T. Enerprises, Inc.

    Case No. 4:08CV742-DJS (E.D. Mo. Apr. 21, 2009)

    For an officer of a corporation to be individually liable for the misdeeds of a corporation, "he must be shown to have had actual or constructive knowledge of the actionable wrong and participated therein." Osterberger v. Hites Const. Co., 599 S.W.2d 221, 229 (Mo.App. 1980). The mere fact that a corporation is subject to local jurisdiction does not necessarily mean its nonresident officers, directors, agents, and employees are suable locally as well.

  10. Rhodes v. Haynes

    Case No. 4:06CV1703 HEA (E.D. Mo. Mar. 31, 2008)

    This is true even when the officers are acting in their corporate capacity. Id. See also Osterberger v. Hites Constr. Co., 599 S.W.2d 221, 229 (Mo.App. 1980). In an action for inducing a breach of contract, a corporate officer is protected from individual liability, "provided no improper means are used, the defendant acts in good faith to protect the corporation[,] and does not act for his own benefit."