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On January 23, 2012, the Missouri Court of Appeals issued a decision reaffirming that a party cannot bring a claim for misrepresentation relating to statements, representations or predictions about an independent third party’s future acts.  In Massie v. Colvin, et al., the defendant sellers listed their farm for sale.  The plaintiff viewed the farm and expressed interest in purchasing it, but only if the property could be fenced and gated.  This posed a problem because the sellers’ neighbor had an easement over a road that crossed through the property.  However, according to the trial record, the listing agent advised the plaintiffs that the neighbor would not mind if the plaintiff built a gate across the road.

During subsequent inspections of the property, the plaintiff reiterated the need for fencing at gates because of her animals.  Each time, the sellers and the listing agent expressed that the neighbor would have no problem with the fencing and gates so long as the plaintiff provided the neighbor with a key.  The plaintiff ultimately purchased the property, at which point the sellers fenced the property for the plaintiff and built a gate across the road easement.  The neighbor objected to the gate, later filed suit, and won a judgment against the plaintiff for removal of the gate and damages.

The plaintiffs thereafter brought suit against the sellers and the listing agent for fraudulent misrepresentation and negligent misrepresentation respectively.  After discovery, the trial court granted summary judgment in favor of the defendant.  In doing so, the trial court noted that:  (1) the plaintiff had constructive notice of the easement per the recording statute; (2) the plaintiff had actual knowledge of the easement; and (3) the statements in question were opinions of future third-party actions (i.e., the neighbor’s consent to the gates), not actionable representations of existing fact.  The plaintiff appealed the decision.

On appeal, the Missouri appellate court affirmed the trial court’s judgment on the basis that the plaintiff failed to establish justifiable reliance, a required element of misrepresentation.  As the court opined:  “[i]nextricably, the plaintiff never contacted [the neighbor] in the weeks preceding her offer or during the five-month delay prior to closing.”  And of particular importance, the court noted that neither the sellers nor the listing agent spoke on behalf of the neighbor, so their statements to the plaintiff “were mere predictions or opinions that things would work out for the plaintiff to have a gate, with [the neighbor’s] consent or acquiescence, despite the recorded easement.”  Citing well-established Missouri caselaw, the court held that the since the sellers and the listing agent were not speaking on behalf of the neighbor, the plaintiff had no right to rely upon their representations as to what the neighbor might do in the future.  As the court made clear, “[s]tatements, representations, or predictions about an independent third party’s future acts simply do not constitute actionable misrepresentation.”