Allen v. Kuehnle

• Decision Date: 08 October 2002
• Docket Number: No. ED 80727.,ED 80727.
• Citation: 92 S.W.3d 135
• Parties: Helen M. ALLEN, Plaintiff/Appellant, v. Mike KUEHNLE and Kuehnle Brothers Construction Company, Defendants/Third Party Plaintiffs/Respondents, and St. Louis Stabilizing, Inc.,<SMALL><SUP>1</SUP></SMALL> Third Party Defendant.
• Court: Missouri Court of Appeals

92 S.W.3d 135

Helen M. ALLEN, Plaintiff/Appellant, v. Mike KUEHNLE and Kuehnle Brothers Construction Company, Defendants/Third Party Plaintiffs/Respondents, and St. Louis Stabilizing, Inc.,¹ Third Party Defendant.

No. ED 80727.

Missouri Court of Appeals, Eastern District, Division One.

October 8, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 18, 2002.

Application for Transfer Denied January 28, 2003.

COPYRIGHT MATERIAL OMITTED

Vatterott, Shaffar & Dolan, P.C., Paul F. Devine, Jeffrey R. Wolfe, Maryland Heights, MO, for appellant.

Wilke & Wilke, P.C., Kathy M. Wilke, James A. Wilke, St. Louis, MO, for respondent.

Wuestling & James, L.C., James D. O'Leary, St. Louis, MO, for St. Louis Stabilizing, Inc.

MARY K. HOFF, Judge.

Helen M. Allen (Allen) appeals from the judgment of the trial court granting summary judgment in favor of Mike Kuehnle and Kuehnle Brothers Construction Company, Inc. (Kuehnle). We reverse.

On or about September 25, 1992, Allen entered into a contract with Kuehnle for the construction of a new home. The lot upon which Allen's new home was built contained an older residence, which was demolished by Kuehnle before beginning construction on Allen's home. It is conceded that Allen's home was then erected by placing approximately "one-quarter of the `footprint' of [the new home] upon the ground that was excavated by Kuehnle when removing the previous structure."

Kuehnle completed construction of the home in early 1993 and Allen moved in during May of that year. Allen noticed various problems with the home, which she included in a "punch list" dated August 24, 1993. Her list of 26 problems included a nicked vanity, a cracked toilet seat, a door frame installed improperly, "nail pops", hairline cracks in the drywall, drywall tape pulling away from the walls in places, a gap between the brick walls and the foundation which caused water seepage and a rodent infestation, two sections of the sidewalk which were sloping, a few areas where carpet bulged, an inoperable light and electrical socket, a light that would not operate when the dishwasher was running, gutters improperly sized, and loose shingles on the roof. Allen asserted in her affidavit that she "was of the opinion, and informed by several people, that these types of problems were typical when one moves into a newly constructed residence." It appears from the record that Kuehnle repaired or attempted to repair most of these problems.

Then in 1998 Allen claims she "began to notice numerous new, more dramatic, problems with her home." Allen reported that the foundation and exterior brick walls were cracked and separating; large cracks in the drywall developed, including a "huge ... L-shaped crack" in the family room; and drywall tape was pulling away from the walls in nearly every room. Additionally she observed that "many of the doors and windows in the home were pinched [and had] shifted out of plumb and ... no longer operate[d] properly." The driveway had sunk so low that Allen stated she could not remove her riding lawnmower from the garage without damaging it; and the front sidewalk had settled and was uneven and "posed a danger to traverse."

In June of 1998 Allen hired an engineer to inspect the home. In his affidavit the engineer opined that the property "suffered from severe movement due to the fact that the [p]roperty was not erected upon sufficiently compacted soil" and extraordinary repairs were required to stop the settlement. On the engineer's recommendation, Allen arranged to have her home piered by St. Louis Stabilizing, Inc. d/b/a Perma-Jack of St. Louis (Perma-Jack). The piering process generated a substantial amount of dust and debris. Allen claims that while vigorously cleaning the dust generated by the piering work, she developed a sore on her foot which became infected and resulted in a hospital stay and damages in the amount of $3,667.25.

Allen filed suit on November 16, 1999, claiming breach of contract, negligent performance of the contract, negligence (essentially claiming breach of the implied warranties of habitability and construction in a skillful and workmanlike manner), and seeking recision of the contract. Kuehnle then filed a motion for summary judgment arguing Allen's claims related to the construction of her home were barred by the statute of limitations because she failed to bring suit within five years of ascertaining there were structural problems with the home, and her personal injury was not foreseeable by Kuehnle at the time of performance of the construction contract. The trial court granted Kuehnle's motion for summary judgment on Allen's petition finding no genuine issue as to material facts and holding that Kuehnle was entitled to judgment as a matter of law. Allen appeals.

In appeals from summary judgment, we "review the record in the light most favorable to the party against whom judgment was entered" and our review is essentially de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Whether to grant summary judgment is purely an issue of law. Id. Because the trial court's judgment is based upon the record submitted and the law, we "need not defer to the trial court's order granting summary judgment." Id. The criteria on appeal for testing the propriety of summary judgment are no different from those which are employed by the trial court to determine propriety of sustaining the motion initially. Id.

The burden is on the movant to show a right to summary judgment flowing from facts about which there is no genuine dispute. Id. at 387; Miller v. Big River Concrete, LLC, 14 S.W.3d 129, 130 (Mo. App. E.D.2000). The non-movant must then show by affidavit, depositions, or otherwise that one or more material facts shown by the movant to be above any genuine dispute is, in fact, genuinely disputed. Id. at 381. A "genuine issue" exists when the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts. Id. at 382. "A `genuine issue' is a dispute that is real, not merely argumentative, imaginary or frivolous." Id.

Allen raises four points on appeal alleging the trial court erred in granting Kuehnle's motion for summary judgment. In her first three points, Allen contends the trial court erred in sustaining Kuehnle's motion for summary judgment on the grounds the construction contract claims were barred by the statute of limitations.

The applicable limitations period is provided by Section 516.120 RSMo 1986.² That statute requires that Allen's suit for the construction contract related claims be instituted within five years of the date upon which damages were sustained and capable of ascertainment. The determinative issue, therefore, is whether Allen's construction related damages were sustained and capable of ascertainment before November 16, 1994, five years before Allen filed suit against Kuehnle.

"The phrase `capable of ascertainment' has never been given a precise definition." Business Men's Assur. Co. of America v. Graham, 984 S.W.2d 501, 507 (Mo. banc 1999). Capable of ascertainment refers to the fact of damage, rather than to the exact amount of damage. Id. "When the fact of damage becomes capable of ascertainment, the statute of limitations is put in motion." O'Reilly v. Dock, 929 S.W.2d 297, 301 (Mo.App. S.D.1996) (quoting M & D Enterprises, Inc. v. Wolff, 923 S.W.2d 389, 394 (Mo.App. S.D.1996)).

Normally, the running of the statute of limitations is a question of law for the court to decide. Lomax v. Sewell, 1 S.W.3d 548, 552 (Mo.App. W.D.1999). However, when contradictory or differing conclusions can be drawn from the evidence as to whether the statute has run, it is a question of fact for the jury to decide. Id. at 552-53.

Kuehnle claims Allen's damages to her home were capable of ascertainment in 1993 when Allen prepared her "punch list", more than five years before filing suit. In support of this argument Kuehnle first directs us to Allen's deposition testimony in which she reported "[t]here is a huge crack in the family room." In her deposition taken June 15, 2000, Allen said that she informed Kuehnle in 1993 about an "L-shaped" crack in the wall of the family room. However, it is unclear to us from the record whether this "L-shaped" crack was "huge" in 1993, or whether it had grown by the time of the deposition in 2000 when Allen reported the crack "is [] huge."

Kuehnle next argues that Allen's own expert testified the problems Allen experienced in 1993 were clear indications of settlement. The testimony Kuehnle cites to addresses problems the engineer observed in 1998. Regarding the problems in 1993, the engineer testified that he would expect to see some evidence of movement "within the first six months or a year. But ... [the settlement] wouldn't be very noticeable.... It might go down an eighth of an inch." Furthermore, the engineer concluded that he did not "believe that the minor problems experienced in 1993, by themselves, could have indicated to ... Allen the substantial settlement or compaction problem with the soil."

We disagree with Kuehnle's assertion that this testimony shows no genuine issue in dispute. The testimony and evidence regarding the "L-shaped" crack in the family room and the items on Allen's "punch list" lead to contradictory or differing conclusions as to when Allen's damages were reasonably ascertainable. Furthermore, the expert's testimony regarding the possibility of settlement within the first year does not require us to find that Allen undoubtedly experienced settlement during the first year. Because contradictory conclusions can be drawn from the evidence a genuine issue of material fact exists and the trial court erred in granting Kuehnle's motion for summary judgment regarding Allen's construction contract claims.

Kuehnle argues that O'Reilly, 929 S.W.2d 297, and Arst v. Max Barken, Inc., 655...