Section 8.14 Pleading and Proof

• Library: Tort Law 2016

A failure to plead and prove any one of the elements constituting fraud is usually fatal to recovery. See:

· Citizens Bank of Appleton City v. Schapeler, 869 S.W.2d 120, 126–27 (Mo. App. W.D. 1993) (recognizing every element of fraud must be pled, and failure to plead any element renders the claim defective)

· King v. Morris, 315 S.W.2d 497, 498–99 (Mo. App. S.D. 1958) (reversing a plaintiff’s verdict because his petition failed to allege that he had relied on the defendant’s misrepresentation that the cow sold to him had been inspected by a state veterinarian and was certified free of disease)

See also Latta v. Robinson Erection Co., 248 S.W.2d 569, 576 (Mo. banc 1952); Salmon v. Brookshire, 301 S.W.2d 48, 54 (Mo. App. W.D. 1957).

Failure to specifically plead all the elements does not always bar recovery. See, e.g., Roth v. Equitable Life Assurance Soc’y of United States, 210 S.W.3d 253, 258 (Mo. App. E.D. 2006). For example, in Kreutz v. Wolff, 560 S.W.2d 271, 277 (Mo. App. E.D. 1977), failure to plead the plaintiff’s right to rely was overcome upon proof that the element was received in evidence without objection. The petition was held to be amended to conform to the unobjected-to evidence. Id.; see alsoEuge v. Golden, 551 S.W.2d 928, 931–32 (Mo. App. E.D. 1977).

In a related vein, the Rule 55.15 requirement that allegations of fraud be pleaded with particularity may be waived if a defendant does not move for a more definite statement in accordance with Rule 55.27(d). SeeClark v. Olson, 726 S.W.2d 718, 719 (Mo. banc 1987); McGuire v. Bode, 607 S.W.2d 165, 167 (Mo. App. W.D. 1980) (citing R__ v. M__, 383 S.W.2d 894, 898–99 (Mo. App. S.D. 1964)). But even if they fail to challenge particularity of fraud allegations, defendants retain the right to challenge on the basis that the plaintiff failed to state a cause of action for fraud. See Crossland Constr. Co. v. Alpine Elec. Constr. Inc., 232 S.W.3d 590, 596 (Mo. App. S.D. 2007) (distinguishing Clark and allowing the defendant to challenge a complaint for failure to state a claim because "[f]ailure to state a claim upon which relief can be granted calls into question the authority of the trial court to enter any judgment for the plaintiff") (quoting Adkisson v. Dir. of Revenue, 891 S.W.2d 131, 132 (Mo. banc 1995)). Further, in an equitable action alleging fraud in the procurement of a judgment, the court held that the failure to properly plead all fraud elements does not bar the relief "where the...