{ "id": 1896960, "name": "Lee Edward ELLIS and Lereatha Ellis v. Dennis J. LITER and Marlene K. Liter and Boatmen's National Bank of St. Louis", "name_abbreviation": "Ellis v. Liter", "decision_date": "1992-11-09", "docket_number": "91-348", "first_page": "35", "last_page": "41", "citations": [ { "type": "official", "cite": "311 Ark. 35" }, { "type": "parallel", "cite": "841 S.W.2d 155" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "307 Ark. 4", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902433 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/307/0004-01" ] }, { "cite": "818 S.W.2d 245", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1991, "opinion_index": 0 }, { "cite": "307 Ark. 161", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902480 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/307/0161-01" ] }, { "cite": "272 Ark. 278", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174916 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/272/0278-01" ] } ], "analysis": { "cardinality": 626, "char_count": 10953, "ocr_confidence": 0.904, "pagerank": { "raw": 4.89950402824256e-08, "percentile": 0.3076216026494209 }, "sha256": "4ed39c49c3420940331f9435626f367a490971b50203fc63d632d82ee3ce9860", "simhash": "1:74498c93f3d69da4", "word_count": 1902 }, "last_updated": "2023-07-14T21:22:33.473421+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Lee Edward ELLIS and Lereatha Ellis v. Dennis J. LITER and Marlene K. Liter and Boatmen\u2019s National Bank of St. Louis" ], "opinions": [ { "text": "Steele Hays, Justice.\nLee Edward Ellis and Lereatha Ellis brought this action alleging that a home purchased by the Ellises from Dennis and Marlene Liter and Boatmen\u2019s National Bank of St. Louis in 1979 was misrepresented. The trial court directed a verdict in favor of the Liters and Boatmen\u2019s and the Ellises have appealed. We affirm as to Boatmen\u2019s and reverse as to the Liters.\nWhen Dennis was reassigned to another area by his employer, Southwestern Bell, Southwestern Bell offered to help with the sale of the Liters\u2019 home. The Liters agreed and Southwestern Bell secured the services of Boatmen\u2019s National Bank of St. Louis. Boatmen\u2019s worked with clients like Southwestern Bell and its employees who were relocating. Boatmen\u2019s clients would \u201cturn over\u201d the properties to the bank (the details of these arrangements are not explained) and the bank would seek buyers for the properties.\nIt appears that Boatmen\u2019s hired the Norton and Dunklin Real Estate Agency to secure a buyer for the Liter home. Norton and Dunklin were handling the Liters\u2019 house and sold it to the Ellises through one of their agents, Evelyn Edington. The offer and acceptance is signed by the Ellises as buyers, and Ms. Edington as the seller. The warranty deed reflects a sale by the Liters to the Ellises.\nAfter the Ellises moved in they encountered problems with the house, but were unable to determine the cause. In 1987 Mr. Ellis went to the office of the city clerk and discovered a statement by a building inspector at the time the house was built referring to a crack in the foundation. Ellis also found a waiver signed by the Liters stating they were aware of the crack but would not hold anyone responsible for problems which might result. The Ellises also learned the crack could ultimately cause serious problems and would be expensive to remedy. At that point the Ellises filed suit against the Liters and Boatmen\u2019s, charging them with misrepresentation in the sale of the home.\nThe case was tried on April 19, 1991. When the plaintiffs rested, both Boatmen\u2019s and the Liters moved for a directed verdict. The trial court granted the motion on the premise that the Ellises had not made a prima facie case against Boatmen\u2019s because they failed to show Boatmen\u2019s had any knowledge there was a crack in the foundation, and against the Liters because the defect was insignificant at the time the house was sold.\nThe Liters\nThe trial court found that if in fact there had been a misrepresentation by the Liters, a directed verdict was appropriate because the misrepresentation was not a material one. The trial court expressed doubt that anyone knew it was a serious problem when the Ellises bought the house in 1979:\nNow that\u2019s sort of going in the back door , but I\u2019ve been wondering all along how would they know in 1980 \u2014 \u201989 or \u201887 whenever they \u2014\u201970 \u2014\u201978 when they sold the house, how could the Liters know that there was a significant problem that they needed to reveal to anybody.\n***\n... I frankly doubt if the normal housewife or the normal house owner that knows nothing about concrete would be terribly disturbed about a hairline crack in the foundation.\n***\n. . . Now ten years later somebody finds some little something insignificant they thought, I suppose. But you don\u2019t have a fact question to go to the jury.\nWe believe it was error to direct a verdict. The materiality of a misrepresentation is not a matter for the trial court but for the fact-finder. In Southern Equipment & Tractor Co. v. K & K Mines, 272 Ark. 278, 613 S.W.2d 596 (1981), we wrote:\nTo prove materiality of a misrepresentation, it is only necessary to show the misrepresented fact was a material influence on the decision; it must have been a substantial factor, but it is not necessary that it was the paramount or decisive inducement. This is a question of fact for the fact-finder. [Our emphasis.] Prosser, Law of Torts, 4th Ed. \u00a7 108; also see 37 Am. Jur. 2d Fraud and Deceit \u00a7 \u00a7 177 and 178.\nProsser elaborates in his fifth edition at \u00a7 108:\nThe party deceived must not only be justified in his belief that the representation is true, but he must also be justified in taking action on that basis. This usually is expressed by saying that the fact represented must be a material one. There are misstatements which are so trivial, or so far unrelated to anything of real importance in the transaction, that the plaintiff will not be heard to say that they substantially affected his decision. Necessarily the test must be an objective one and it cannot be stated in the form of any definite rule, but must depend upon the circumstances of the transaction itself. . . . Thus, in particular cases, matters entirely collateral to a contract, and apparently of no significance to any reasonable man under the circumstances, have been held to be immaterial; the defendant\u2019s social, political and religious associations; his motive or purpose in entering into the bargain; the details of a seller\u2019s title, where good title is still conveyed; a false financial statement which still gives an accurate picture; the identity of the party for whom a purchase is made; and many other items of similar nature.\nOn the other hand facts to which a reasonable man might be expected to attach importance in making his choice of action, such as the identity of an individual or the directors of a corporation with whom he is dealing, the character of stock sold as treasury stock, the age, horse power and capacity of an automobile, the train service to a suburb . . . have been held to be material. The question is frequently for the jury whether the statement made might justifiably induce the action taken.\nW. Page Keeton et al., Prosser & Keeton on the Law of Torts \u00a7 108, at 753-754 (5th ed. 1984).\nAs Prosser suggests, there may be matters so clearly trivial and unimportant that they could be said to be immaterial as a matter of law, but that is not the situation before us. We cannot say as a matter of law that a defect in the foundational structure of a home can be relegated to the trivial status comparable to that discussed in Prosser, supra. Nor can we say as a matter of law that the Ellises were not justified in treating the defect as posing a material influence on their decision. Furthermore, Mr. Mann, the original inspector of the house, testified the crack posed a very serious problem that would be expensive to rectify. Even the Liters testified they would want to be told about such a defect. Mr. Liter testified:\nQ: Now, Mr. Liter, did you ever at any time during the course of this transaction communicate or tell Mr. and Mrs. Ellis sitting over there about this crack \u2014 this problem with the house you were selling? Did you ever tell them?\nA: No sir. Eve never met them or even seen them before today.\nQ: Did you make any effort to try to tell them?\nA: No sir.\nQ: Don\u2019t you think that\u2019s something that they needed to know before they bought the house?\nA: Well, I certainly think so, yes, sir.\nQ: You didn\u2019t \u2014 in fact, you would want to know about that crack if you had been buying the house, wouldn\u2019t you?\nA: Yes, sir.\nAnd Mrs. Liter testified:\nQ: Okay. I also asked at that deposition, [Mrs. Liter] if you were purchasing a house and there was a crack in the slab running the length of one of the rooms in the house, I asked you \u2014 wouldn\u2019t you want to know about it?\nA: Yes, I would want to know about it.\nWhether a crack in the foundation was a material fact in this case was a question for the jury. As to the trial court\u2019s comment that even if the Liters had known about the crack there may not have been any culpable intent on their part because they thought it was not a significant problem, this too is clearly a question for the jury\u2014 a credibility matter as to the defendant\u2019s intent.\nAdditionally, there was actually an admission of awareness of the seriousness of the crack on the part of Mrs. Liter. She testified about appraisers who had come to the house prior to their selling to the Ellises, and stated that one of the appraisers who was aware of the crack, apparently through the inspector\u2019s note and the Liters\u2019 waiver of the previous year, commented to her about the crack and told her that he had been a building inspector and he would never have approved the house in that condition.\nThe trial court referred to the Liters having signed a waiver of liability by the builders for the defect as an indication the problem was minor. However, why the Liters ultimately signed the waiver is not revealed and the waiver alone is not sufficient to remove this issue from the jury. To the contrary, it goes to the question of credibility as to the Liters\u2019 intent. \u201cIn cases of deceit, the credibility of the witnesses is all important in determining liability, and it is the trier of fact that is the sole judge of the credibility of the witnesses and of the weight and value of the evidence.\u201d Nicholson v. Century 21, 307 Ark. 161, 818 S.W.2d 245 (1991).\nBoatmen\u2019s\nThe trial court granted a directed verdict for Boatmen\u2019s on grounds that the appellants had failed to prove any knowledge on Boatmen\u2019s part of the crack in the foundation. The trial court was correct.\nWhen the record is read in its entirety, it is clear the appellants failed to establish that any information about the crack ever reached Boatmen\u2019s. The evidence was simply inconclusive that Boatmen\u2019s had any awareness of the original building inspector\u2019s report, or the appraiser\u2019s report. There is evidence that appraisers visited the property when the Liters planned to sell, in 1979, and that one of them mentioned the crack to Mrs. Liter at that time. However, there is no evidence that it was Boatmen\u2019s which hired the appraisers and therefore had even constructive knowledge of the crack. While the record indicates that in all likelihood the appraisers were hired either by Southwestern Bell or Boatmen\u2019s there is nothing conclusive in the record as to hiring and a finding by a jury would be based solely on speculation.\nFor the same reasons, a negligence theory, which appellants also advance, must fail because the information of the crack was never shown to come within Boatmen\u2019s purview, even constructively.\nAppellants argue alternatively that Boatmen\u2019s is liable under either strict liability or breach of warranty. However, these theories were not raised in the complaint nor were they argued to the trial court. Johnson v. Ramsey, 307 Ark. 4, 817 S.W.2d 200 (1991).\nReversed in part and affirmed in part and remanded.", "type": "majority", "author": "Steele Hays, Justice." } ], "attorneys": [ "Davidson Law Firm, Ltd., by: Charles Phillip Boyd, Jr., for appellant.", "Bridges, Young, Matthews, Holmes & Drake, by: David L. Sims, for appellees.", "Pierce, Stanley & Robinson, by: William S. Robinson, for appellees Dennis J. Liter and Marlene K. Liter." ], "corrections": "", "head_matter": "Lee Edward ELLIS and Lereatha Ellis v. Dennis J. LITER and Marlene K. Liter and Boatmen\u2019s National Bank of St. Louis\n91-348\n841 S.W.2d 155\nSupreme Court of Arkansas\nOpinion delivered November 9, 1992\nDavidson Law Firm, Ltd., by: Charles Phillip Boyd, Jr., for appellant.\nBridges, Young, Matthews, Holmes & Drake, by: David L. Sims, for appellees.\nPierce, Stanley & Robinson, by: William S. Robinson, for appellees Dennis J. Liter and Marlene K. Liter." }, "file_name": "0035-01", "first_page_order": 59, "last_page_order": 65 }