Ranney v. Munro

418 A.2d 862, 138 Vt. 523, 1980 Vt. LEXIS 1356

Opinion

Per Curiam.

Plaintiff Ranney brought suit for fraudulent misrepresentations. The defendant moved to dismiss the complaint for failure to state a claim upon which relief could be granted. V.R.C.P. 12(b) (6). The motion was granted and plaintiff appeals. We affirm.

The plaintiff claims that he has complied with the provisions of V.R.C.P. 8(a) (1) which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” In actions of fraud, however, we are bound by the provisions of V.R.C.P. 9 (b) which states that:

In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with par ticularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

A close examination of the complaint discloses no averment of the defendant seller’s knowledge, either general or specific. Such knowledge is an essential element of an action for fraudulent misrepresentation. Anderson v. Knapp, 126 Vt. 129, 133, 225 A.2d 72, 76 (1966). Failure to aver the essential element of knowledge in an action for fraud constitutes a fatal defect in the complaint, and the trial court correctly dismissed the action.

Affirmed.