The court finds that the value of this adjacent property upon its 2006 sale is not relevant to a determination of the value of the demised premises on the agreed effective date of April 20, 2004. Second, it is the role of this court to ascertain the parties' intent in signing the Lease and to give effect to this intention.Dorsch v. Family Med., Inc., 159 S.W.3d 424, 435 (Mo.Ct.App. 2005). Where a provision of a contract is susceptible to more than one construction, Missouri law provides that "the more probable and reasonable construction" should be applied. Rathbun v. The CATACorp., 93 S.W.3d 771, 781 (Mo.Ct.App. 2002).
"The circumstances constituting fraud must be pled with particularity . . . ." Dorsch v. Family Med., Inc., 159 S.W.3d 424, 430 (Mo. Ct. App. 2005). Vericrest argues Count II should be dismissed because Plaintiffs failed to allege facts establishing a representation, falsity, materiality, how Plaintiffs relied on the purported representation, Plaintiffs' right to rely on the representations, or proximate cause.
Arrow Trucking next argues that the circuit court abused its discretion by striking its answer to the plaintiffs' complaint and by entering default judgment against it. Arrow Trucking contends that the abuse of discretion was manifested in the lack of prejudice to the plaintiffs and by the lack of evidence that Arrow Trucking failed to act by virtue of a contumacious, deliberate disregard for the circuit court's order. The circuit court has much discretion in controlling discovery and in determining the proper remedy — including sanctions — for a party's noncompliance with discovery. Dorsch v. Family Medicine, Inc., 159 S.W.3d 424, 439 (Mo.App. 2005). The circuit court must treat "an evasive or incomplete answer . . . as a failure to answer."
Hampton's breach-of-contract claim failed because the defendant acted in accordance with the contract in denying the claim for benefits after Hampton elected a refund of his plan contributions that ended his plan participation. See Al-Khaldiya Elecs. & Elec. Equip. Co. v. Boeing Co., 571 F.3d 754, 758-59 (8th Cir. 2009) (under Missouri law, there is no breach of implied covenant of good faith and fair dealing where contract expressly allows challenged actions); Dorsch v. Family Med., Inc., 159 S.W.3d 424, 437 (Mo. Ct. App. 2005) (plaintiff failed to state breach of contract claim where he essentially claimed that defendant breached contract by expressly following it). Hampton could not avoid the consequences of electing the refund, even if he did not fully understand the legal ramifications of doing so.
Gibson v. Smith, 422 S.W.2d 321, 328 (Mo. 1968).Dorsch v. Family Med., Inc., 159 S.W.3d 424 (Mo.Ct.App. 2005).See Matter of Estate of Passman, 537 S.W.2d 380, 383-84 (Mo. 1976); Crawford v. Smith, 470 S.W.2d 529, 531-32 (Mo. 1971); Baker v. Bickel, 386 S.W.2d 105, 111 (Mo. 1964); accord Hartsfield v. Barkley, 856 S.W.2d 342, 347 (Mo.Ct.App. 1993).
” DiSalvo Props., LLC v. Hall, 616 S.W.3d 502, 508 (Mo.Ct.App. 2020) (quoting Dorsch v. Family Med., Inc., 159 S.W.3d 424, 432 (Mo.Ct.App. 2005)). As a result, THC will ultimately bear the burden to “substantially prove the misrepresentations that have been alleged.” Id.
In addition, "[u]nder Missouri law, a party who signs a contract is presumed to have knowledge of its contents." Id. (citing Dorsch v. Fam. Med., Inc., 159 S.W.3d 424, 436 (Mo. App. 2005). Furthermore, Mrs. Dickson, who Defendants do not contend lacked the ability to understand the waiver, read and signed each contract and was available to assist Mr. Dickson in understanding the terms.
Further, under Missouri law, a party who signs a contract is presumed to have knowledge of its contents. Dorsch v. Family Med., Inc., 159 S.W.3d 424, 436 (Mo. App. 2005). Lastly, the jury waiver provision appears twice in the Franchise Agreement, once in bold type, and again in the two-page Guarantee in the last sentence of a paragraph.
To the extent that Defendant has moved to strike portions of Plaintiff's statement regarding the existence of uncompleted transactions, Plaintiff contends that the phrase "uncompleted transactions pending," as used in the Plan, is ambiguous and undefined in the Plan and that, therefore, the meaning of "uncompleted transactions pending" is at issue. Whether a contract is ambiguous is also a question of law.Dorsch v. Family Med., Inc., 159 S.W.3d 424, 435 (Mo. Ct. App. 2005) (citing Yerington v. La-Z-Boy, Inc., 124 S.W.3d 517, 520 (Mo. App. S.D. 2004)). Moreover, a contract should be read as a whole to determine the intention of the parties. Dunn Indus. Group v. City of Sugar Creek, 112 S.W.3d 421, 428 (Mo. 2003) (en banc).
To prevail on her fraud claim, plaintiff had to show that she satisfied all the terms of the lease agreement, and therefore, defendant's reporting of the lease account as delinquent was false. See, Dueker v. Gill, 175 S.W.3d. 662, 667 (Mo.App. 2005) (failure to prove any of the requisite elements is fatal to a claim of fraud); Dorsch v. Family Medicine, Inc., 159 S.W.3d. 424, 430-31 (essential elements of fraud claim "must be strictly proven as pleaded"); see also, City of St. Joseph, Missouri v. Southwestern Bell Telephone, 2005 WL 6125133, *9 (W.D.Mo. Jan. 7, 2005) (truth of falsity of representation is determined as of time it was made and as of time it was intended to be relied upon), aff'd 439 F.3d. 468 (8th Cir. 2006); Blanke v. Hendrickson, 944 S.W.2d. 943, 944 (Mo.App. 1997). The MMPA claim similarly requires a showing of deception, fraud, false pretense, false promise, misrepresentation, unfair practice or a concealment, suppression, or omission of a material fact; furthermore, a MMPA claim requires an "ascertainable loss" as defined by the MMPA. Mattingly v. Medtronic, Inc., 466 F.Supp.2d. 1170, 1173 (E.D.Mo. 2006); Zmuda v. Chesterfield Valley Power Sports, 267 S.W.3d. 712, 716 (Mo.App. 2008).