AAA Excavating, Inc. v. Francis Const., Inc.

• Citation: 678 S.W.2d 889
• Decision Date: 02 October 1984
• Docket Number: No. 48359,48359
• Court: Court of Appeal of Missouri (US)
• Parties: AAA EXCAVATING, INC., Respondent/Plaintiff, v. FRANCIS CONSTRUCTION, INC., a Missouri corporation, Appellant/Third Party Plaintiff, v. REITZ & JENS, INC., a Missouri corporation, Respondent/Third Party Defendant.

Page 889

678 S.W.2d 889

AAA EXCAVATING, INC., Respondent/Plaintiff, v. FRANCIS CONSTRUCTION, INC., a Missouri corporation, Appellant/Third Party Plaintiff, v. REITZ & JENS, INC., a Missouri corporation, Respondent/Third

Party Defendant.

No. 48359.

Missouri Court of Appeals,

Eastern District,

Division Three.

Oct. 2, 1984.

Edward V. Ward, Clayton, for appellant/third party plaintiff.

Maurice L. Stewart, St. Louis, for respondent AAA Excavating.

Douglas A. Copeland, Clayton, for respondent Reitz & Jens, Inc.

REINHARD, Chief Judge.

Defendant appeals from an order of the trial court dismissing defendant's third party petition.

Plaintiff AAA Excavating, Inc. brought suit against Francis Construction, Inc. in the amount of $8,595.00 for excavation and grading work in the construction of a National Supermarket in Jefferson County. Defendant filed an answer and received leave to file a third party petition against Reitz & Jens, Inc., consulting engineers. Summons was issued and served.

In defendant's second amended third party petition, defendant alleged that it was the general contractor for the construction of a supermarket in Jefferson County and that Reitz & Jens was retained by National Supermarket to perform engineering soil sampling and soil compaction tests at the site. The petition further alleges, inter alia, that Reitz & Jens failed to adequately perform the soil compaction test; failed to determine the presence of an unstable creek bed and failed to warn defendant of the unstable creek bed. Defendant alleged that "[b]ased on the reports and consultations provided by Reitz & Jens, Inc." defendant constructed the supermarket which subsequently sank and settled causing walls of the building to crack. This required defendant to repair the walls and regrade the area at the expense of defendant in the amount of $9,000.00. It finally alleges that as a result of that expenditure, it was unable to pay plaintiff, AAA Excavating and that should "Francis Construction be found liable to plaintiff, AAA Excavating, it will be the direct and proximate result of the negligence of Reitz & Jens ...."

Reitz & Jens, Inc. filed a motion to dismiss the third party petition for failure to state a claim for relief and because this was an improper third party petition. The trial court sustained Reitz & Jens' motion to dismiss and the third party defendant was dismissed. This appeal ensued.

AAA Excavating, Inc. has filed a motion to dismiss the appeal relying on Nadler v. Continental Insurance Co., 511 S.W.2d 446 (Mo.App.1974) in which this court held that an order denying third party plaintiff's motion to bring in third party defendants was not appealable because such an order failed to determine liability between defendant and the alleged third party defendant. Here, third party plaintiff received leave to file the third party petition and the third party defendant was before the court. Nadler is not applicable because the trial court's dismissal of defendant's third party petition did dispose of the liability between defendant and the third party defendant.

However, this does not end the inquiry of whether this was an appealable order, as it is evident the court's order does not dispose of all parties and issues. The court's order was not denominated final for purposes of appeal, so whether we have jurisdiction depends upon whether the order comes within the provisions of Rule 81.06 which provides that "when a separate trial is had before the court without a jury of an entirely separate and independent claim unrelated to any other claims stated or joined in the case, then the judgment entered shall be deemed a final judgment for purposes of appeal."

The dismissal of a third party petition for failure to state a claim upon which relief can be granted is a separate trial before the court without a jury within the meaning of Rule 81.06. State ex rel. Ashcroft v. Gibbar, 575 S.W.2d 924, 927 (Mo.App.1978). To be an appealable order the matters disposed of must not be dependent in any respect upon the outcome or final disposition of any issue left undetermined in the case. Crenshaw v. Great Central Insurance Co., 527 S.W.2d 1, 3 (Mo.App.1975).

The only relationship defendant alleges between AAA Excavating's claim and defendant's claim against Reitz & Jens' for negligence is defendant's allegation that it was unable to pay AAA Excavating because it had to use those funds to pay for repairs to the building after construction. Regardless of the outcome of AAA Excavating's claim, defendant will still have a claim against Reitz & Jens for all of its claimed damages of $9,000.00. Defendant's claim is in no way dependent upon the disposition of plaintiff's petition against defendant. ^{1 1} The court did not order the dismissal to be interlocutory or held in abeyance hence the dismissal of the third party petition was a final appealable order and we have jurisdiction. State ex rel. Ashcroft v. Gibbar, 575 S.W.2d 924, 928 (Mo.App.1978); Rule 81.06.

In considering the sufficiency of the third party petition, we give the averments a liberal construction, treat the facts as true and accord the pleading those favorable inferences fairly deducible from the facts stated. Scheibel v. Hillis, 531 S.W.2d 285, 289 (Mo. banc 1976).

Defendant contends that its petition states a claim for relief against Reitz & Jens, Inc. for the tort of negligent misrepresentation as set forth in the Restatement of Torts Second, Section 552 which has been recognized in Missouri. Chubb Group of Insurance Companies v. C.F. Murphy & Associates, Inc., 656 S.W.2d 766 (Mo.App.1983); Springdale Gardens, Inc., v. Countryland Development, Inc., 638 S.W.2d 813 (Mo.App.1982); Ligon Specialized Hauler, Inc. v. Inland Container Corp., 581 S.W.2d 906 (Mo.App.1979); Aluma Kraft Manufacturing v. Elmer Fox & Co., 493 S.W.2d 378 (Mo.App.1973). The elements of this cause of action are: (1) that defendant supplied information in the course of his business or because of some other pecuniary interest; (2) that because of a failure by defendant to exercise reasonable care or competence, the information was false; (3) that the information was intentionally provided by defendant for the guidance of a limited group, including plaintiffs, in a particular business transaction; and (4) that in relying on the information, plaintiffs suffered a pecuniary loss. Chubb Group of Insurance Companies v. C.F. Murphy & Associates, 656 S.W.2d 766, 783 (Mo.App.1983).

Reitz & Jens, Inc. assert that the third party petition fails to state a claim for relief because of a lack of privity between it and defendant. However, privity is not an element of the tort of negligent misrepresentation. Aluma Kraft Manufacturing Co. v. Elmer Fox & Co., 493 S.W.2d 378, 383 (Mo.App.1973). Moreover,...