Ashford Condo., Inc. v. Horner & Shifrin, Inc.

• Decision Date: 25 January 2011
• Docket Number: No. ED 94645.,ED 94645.
• Citation: 328 S.W.3d 714
• Court: Missouri Court of Appeals
• Parties: ASHFORD CONDOMINIUM, INC. a/k/a Ashford Condominium Owners' Association, Appellants, v. HORNER & SHIFRIN, INC., and Lamb Construction Company, LLC, Respondents.

328 S.W.3d 714

ASHFORD CONDOMINIUM, INC. a/k/a Ashford Condominium Owners' Association, Appellants,

v.HORNER & SHIFRIN, INC., and Lamb Construction Company, LLC, Respondents.

No. ED 94645.

Missouri Court of Appeals,

Eastern District,

Division Four.

Nov. 16, 2010.

Motion for Rehearing and/or Transfer t Supreme Court Denied Dec. 21, 2010.

Application for Transfer Denied Jan. 25, 2011.

Steve Koslovsky, LLC, St. Louis, MO, for Appellant.

Philip J. Christofferson, Cockriel & Christofferson, LLC, St. Louis, MO, for Respondent Horner & Shifrin, Inc.

R.C. Wuestling, M. Adina Johnson, Matthew T. Nagel, Wuestling & James, L.C., St. Louis, MO, for Respondent Lamb Construction Company, LLC.

KURT S. ODENWALD, Presiding Judge.

Introduction

Ashford Condominium, Inc. (Ashford) appeals from the judgment of the trial court granting summary judgment in favor of defendants Horner & Shifrin, Inc. (Horner) and Lamb Construction Company, LLC (Lamb). In 2008, Ashford filed a petition seeking damages for breach of contract and negligence against Horner and Lamb in connection with repair work performed on exterior structures of the condominium complex in 2000. The trial court found that Ashford's claims were not brought within the time limits required by law and were barred by the applicable statute of limitations, Section 516.120 RSMo 2000. ¹ We affirm the trial court's judgment.

Factual Background

Ashford is an incorporated association of condominium owners of a condominium development known as Ashford Condominiums. On August 6, 1999, Ashford hired Horner, an engineering firm, to analyze the development's wooden decks, balconies, and other exterior structures (collectively "decks") for deterioration and to recommend any necessary remedial work. Horner determined that the decks suffered from "weathering and moisture damage" and recommended several repair options to Ashford. Ashford directed Horner to analyze the decks' structural columns (hereinafter "columns") and recommend which columns could be repaired and which columns needed total replacement.

On April 25, 2000, Ashford hired Lamb to, among other things, repair and replace the columns in accordance with Horner's recommendations. Horner further agreed to provide periodic "inspections" to confirm that the construction tasks performed by Lamb were in fact consistent with its recommendations. Because a decorative trim encased each column, Horner was unable to determine the extent of each column's damage without Lamb first removing the decorative trim. Once Lamb did so, Horner examined each exposed column and recommended whether it needed to be completely replaced, could be repaired, or was fine as is. Lamb then followed Horner's replace/repair/leave alone designations and later installed new decorative trim.

On November 27, 2000, Ashford sent a letter to Horner stating that it had "serious concerns" regarding Lamb's quality of work and was "extremely dissatisfied" with Horner's ability to "properly inspect" Lamb's work. Ashford continued to express its dissatisfaction with Horner and Lamb in subsequent correspondence and ultimately terminated Lamb's contract on March 20, 2001. Because Lamb had not finished painting the decks and caulking the wood joints and nail holes when it was terminated, Ashford hired Rice Painting Co. (Rice Painting) to complete these tasks.

Nearly five years elapsed, and, in 2006, Ashford noticed that certain wooden components of the decks appeared unsightly. On October 19, 2006, Ashford hired another contractor, Raineri Construction, LLC (Raineri), to perform some repairs and repaint the decorative trim that covered the decks' columns. Upon removing the decorative trim, Raineri discovered deterioration in the columns and notified Ashford. Ashford hired engineer Gerald Loesch (Loesch) to investigate this deterioration. Loesch found "considerable rotting as a result of water infiltration," infiltration that had taken place "gradually over many months as moisture repeatedly penetrate[d] and damage[d] the wood." Loesch further determined that the decks were structurally unsafe. As a result, Ashford directed Raineri to replace the decks in their entirety.

Procedural Background

Ashford filed its petition in this case against Horner and Lamb on March 14, 2008, and filed an amended petition on October 17, 2008. In its amended petition, Ashford asserted negligence and breach of contract claims. Ashford claimed Horner was negligent in providing engineering services and breached its contract with Ashford because Horner's plan to repair the decks "failed to specify flashing required to protect wood components against excessive deterioration" and it "failed to properly supervise Lamb in [the] performance of [Lamb's] work." Ashford claimed that Lamb negligently provided construction services and breached its contract with Ashford because it failed to installproper flashing and did not follow Horner's recommendations.

Both Horner and Lamb filed motions for summary judgment. On March 10, 2010, the trial court sustained their summary judgment motions, concluding that the five-year limitation period of Section 516.120 barred each of Ashford's claims. The trial court found that Ashford had sustained damages that were capable of ascertainment toward the end of 2000. The court explained that "Ashford had actual notice of [Horner] and Lamb's allegedly negligent acts [ ] and breaches of contract in 2000." At that time, Ashford was aware that "the alleged failure to install flashing would lead to water infiltration and damage." This awareness of the fact of damage, according to the trial court, triggered the five-year limitation period. This appeal follows.

Point on Appeal

On appeal, Ashford argues that the trial court erred in granting summary judgment for two reasons. First, Ashford contends that whether it possessed knowledge that flashing was not properly installed in 2000 was a disputed fact, thereby precluding the entry of summary judgment. Second, Ashford contends that the damages it suffered as a result of Horner and Lamb's alleged negligence and contractual breaches were not sustained and capable of ascertainment until October of 2006 when Raineri removed the columns' decorative trim, uncovered the structural deterioration, and apprised Ashford of the condition of the wooden columns. Consequently, Ashford argues that the 5-year limitations period did not begin to run until October, 2006.

Standard of Review

In an appeal 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. Allen v. Kuehnle, 92 S.W.3d 135, 138 (Mo.App. E.D.2002). Because the trial court's judgment is based upon the record submitted and the law, we need not defer to the trial court. Id. The criteria on appeal for testing the propriety of summary judgment are no different than those employed by the trial court. Id. The movant carries the burden of showing a right to summary judgment flowing from facts about which there is no genuine dispute. Id. The non-movant then must 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.

Discussion

Neither party disputes that the five-year limitation period of Section 516.120 governs Ashford's claims in this case. Subject to certain exceptions which are inapplicable here, Section 516.120(1) states that contract actions must be brought within five years of their accrual. Section 516.120(4) provides that general tort actions, like Ashford's negligence claims, must be brought within five years of their accrual. See, e.g., Bus. Men's Assurance Co. of Am. v. Graham, 984 S.W.2d 501, 503-507 (Mo. banc 1999) (applying Section 516.120 where the owner of a building sued architects and engineers for both negligence and breach of contract). The central question before us is whether Ashford's petition was timely filed. Ashford's petition was filed on March 14, 2008. The determinative issue, therefore, is whether Ashford's claims were sustained and capableof ascertainment before March 14, 2003, five years before Ashford filed its suit against Horner and Lamb.

In Missouri, "the statute of limitations is triggered not by discovery of damage, but by the commencement of the right to sue." Id. at 507. These two events do not necessarily coincide. Id. at 507. Section 516.100 states that:

[T]he cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained.

The Missouri Supreme Court has interpreted Section 516.100's capable of ascertainment standard to be an objective standard and has held that " the statute of limitations begins to run when the ' evidence was such to place a reasonably prudent person on notice of a potentially actionable injury.' " Powel v. Chaminade College Preparatory, Inc., 197 S.W.3d 576, 582 (Mo. banc 2006) (quoting Graham, 984 S.W.2d at 507) (emphasis in original). The test to be applied is "when a reasonable person would have been put on notice that an injury and substantial damages may have occurred and would have undertaken to ascertain the extent of the damages." State ex rel. Marianist Province of the United States v. Ross, 258 S.W.3d 809, 811 (Mo. banc 2008) (citation omitted). Thus, "[i]n order for the statute [of limitations] to accrue, plaintiff must have knowledge of the wrong and at least nominal damage, or [knowledge] of something that puts plaintiff on notice to inquire further." Gaydos v. Imhoff, 245 S.W.3d 303, 307 ...