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GRENDELL v. KIEHL

February 16, 1987

DON GRENDELL
V.
FERDINAND KIEHL AND LORETTA KIEHL



Appeal from Perry Circuit Court; John Langston, Judge; affirmed, as modified.

SYLLABUS BY THE COURT

1. VERDICT - DENIAL OF MOTION FOR DIRECTED VERDICT - STANDARD OF REVIEW. - In reviewing the denial of a motion for a directed verdict, the appellate court gives the proof its strongest probative force; such proof, with all reasonable inferences, is examined in the light most favorable to the party against whom the motion is sought, and if there is any substantial evidence to support the verdict, the appellate court affirms the trial court.

2. FRAUD - ACTION AT LAW - BURDEN OF PROOF OF MISREPRESENTATION. - In actions at law, the burden of proof of misrepresentation is simply by a preponderance of the evidence.

3. FRAUD - ACTION FOR DECEIT ESSENTIAL ELEMENTS. - The essential elements of an action for deceit are well established: a) a false, material representation (ordinarily of fact) made by the defendant; b) scienter knowledge by the defendant that the representation is false, or an assertion of fact which he does not know to be true; c) an intention that the plaintiff should act on such representation; d) justifiable reliance by the plaintiff on the representation; and e) damage to the plaintiff resulting from such reliance.

4. FRAUD - PROOF REQUIRED. - It is not necessary to prove active fraud by the defendant representations are construed to be fraudulent when made by one who either knows the assurances to be false or else not knowing the verity asserts them to be true.

5. FRAUD - ALLEGED MISREPRESENTATIONS - PROOF CONSTITUTES EXPRESSIONS OF OPINION, OR "PUFFING." - The testimony that appellant told appellees that an investment in an oil and gas lease was a good thing, that it would make money, and a well would produce 50 barrels of oil a day, does not rise to the level of misrepresentation of fact, particularly where the investors knew they were taking a risk and that there was a possibility of a dry hole; at its strongest, the proof constitutes expressions of opinion in the nature of "puffing."

6. FRAUD - ACTION FOR MISREPRESENTATION BASED ON OPINION WILL NOT LIE - OPINION DEFINED. - It is a fundamental rule that an action for misrepresentation for misstatements of opinion, as distinguished from those of fact, will not lie; an opinion is merely an The opinion of the court was delivered by: Steele Hays, Justice.

Don Grendell brings this appeal from a judgment of $11,329.60 rendered against him by the circuit court. Appellees Ferdinand and Loretta Kiehl brought an action for deceit against Grendell alleging misrepresentation and seeking judgment for compensatory and punitive damages. Grendell argues three points of error on appeal: the circuit judge erred in not directing a verdict at the close of the plaintiff's case; the judgment was not supported by the law and the evidence, and the amount of the judgment is not supported by the evidence. We affirm the judgment of the trial court, as modified.

These points, being interrelated, will be considered together, as the result we reach necessarily answers all the arguments. When the plaintiffs rested, the defendant Grendell moved for a directed verdict because the plaintiffs had failed to prove that any of the representations were shown to have been false, or that Mr. Grendell knew they were false.

[1] In reviewing the denial of a motion for a directed verdict, we give the proof its strongest probative force. Such proof, with all reasonable inferences, is examined in the light most favorable to the party against whom the motion is sought and if there is any substantial evidence to support the verdict we affirm the trial court. Northside Construction Co. v. Huffman, 287 Ark. 145, 697 S.W.2d 89 (1985); McCuiston v. City of Siloam Springs, 268 Ark. 148, 594 S.W.2d 233 (1980); ARCP Rule 50.

[2] At the outset we point out that appellant's argument is based in part on a misconception of the law. Citing Robinson v. Williams, 231 Ark. 166, 328 S.W.2d 494 (1949), he argues that fraud must be proved by clear and convincing evidence. That is incorrect. That ...


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