Baldwin Properties, Inc. v. Sharp

• Decision Date: 19 August 1997
• Docket Number: No. WD,WD
• Citation: 949 S.W.2d 952
• Parties: BALDWIN PROPERTIES, INC., a Missouri Corporation, Appellant, v. Frank W. SHARP, Jr., P.E., et al., Respondents. 53529.
• Court: Missouri Court of Appeals

Page 952

949 S.W.2d 952

BALDWIN PROPERTIES, INC., a Missouri Corporation, Appellant, v. Frank W. SHARP, Jr., P.E., et al., Respondents.

No. WD 53529.

Missouri Court of Appeals Western District.

Aug. 19, 1997.

Michael Patrick Keleher, Gladstone, for Appellant.

John B. Reddoch, Liberty, for Respondents.

Before ELLIS, P.J., and LOWENSTEIN and HOWARD, JJ.

HOWARD, Judge.

Plaintiff Baldwin Properties, Inc. ("Baldwin") appeals from an order by the Circuit Court of Clay County, Missouri, granting summary judgment to Defendant Frank W. Sharp, Jr. ("Sharp"). Baldwin is in the business of building homes. In July, 1993, Sharp, a licensed Professional Engineer, inspected one of Baldwin's newly-built homes for Judy and Rande Kessler (the "Kesslers"). The Kesslers had been negotiating with Baldwin to purchase the home. Sharp found what he believed to be significant leakage problems in the basement, and informed the Kesslers that he estimated the repair cost to be at least $11,500. As a result of Sharp's inspection report, the Kesslers withdrew from further negotiations with Baldwin. Baldwin later filed suit against Sharp for tortious interference with a business relationship. Sharp filed a motion for summary judgment, and the trial court granted the motion for the specific reason that there existed no material dispute of facts regarding one element of Baldwin's cause of action--that Sharp lacked justification in issuing the inspection report.

On appeal, Baldwin contends that the trial court erred in granting Sharp's motion for summary judgment because (1) there was significant evidence before the court to show that Sharp lacked justification for his actions, and (2) the issue of justification is best left for determination by a jury.

Affirmed.

Standard of Review

When considering an appeal from summary judgment, we review the record in the light most favorable to the party against whom judgment was entered, and we accord the non-movant all reasonable inferences therefrom. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.1993). Our review is essentially de novo. Id.

A movant is entitled to summary judgment upon a showing that no genuine issues of material fact exist, and that judgment should be granted as a matter of law. Id. at 377. A defendant may establish a right to judgment as a matter of law by: "(1) negating an essential element of the plaintiff's claim; (2) establishing all the elements of an affirmative defense; or (3) showing that after an adequate period of discovery the plaintiff has not produced, and will not be able to produce, evidence sufficient to allow the trier of fact to find any one of the elements of the claim." O'Brien v. Mansfield, 941 S.W.2d 582, 585 (Mo.App. W.D.1997) (citing ITT, 854 S.W.2d at 381).

Facts

In July, 1993, the Kesslers lived in Alabama, but were looking for a home in Kansas City because Mr. Kessler had been transferred to the Kansas City area. They engaged a real estate agent, T.J. Lamb, to serve as their agent in locating and purchasing a home. Lamb showed them the house built by Baldwin that is the subject of this litigation. The Kesslers inspected the house with Lamb and found a thin layer of pooled water in the basement. The Kesslers expressed some interest in the house, so Lamb advised them to make an offer contingent upon a favorable engineer's report. They did so, and Lamb then contacted Sharp and asked him to inspect the property. Sharp agreed to conduct the inspection for $250.00. Sharp inspected the property on July 23, 1993, in the presence of Lamb. Lamb informed Sharp that the Kesslers were primarily concerned about the water in the basement because they wanted to finish the basement for additional living space. Sharp, therefore, began by inspecting the basement to determine the severity of the leakage problem. He told Lamb that he felt the problem was serious and would cost at least $11,500 to fix. Assuming that the Kesslers would no longer want the house, Lamb and Sharp decided to terminate the inspection early, and Sharp reduced his fee to $150.00. In a letter to Mr. Kessler dated July 28, 1993, Sharp recounted his findings:

On July 23, 1993, I met Buyer's Agent, T.J. Lamb at the 2406 NE 79th Street Location. The new residence is nearly complete, save the landscape grading and some appliance installation. I was to perform a modified Whole House pre-purchase inspection on your behalf which includes observations and Professional Engineer opinions of mechanical and structural systems. I am writing at this time to give you my formal opinion and observation. I elected to terminate the work after completion of the foundation structural inspection phase.

I found the fully enclosed reinforced concrete basement foundation to be abnormally and unacceptably wet on the interior surfaces, water intruding at the floor-to-wall cove joint, and the basement floor to be unacceptably wet throughout. Mildew and water were present on the small finished portion of the stairwell in the basement. Even considering the incomplete landscaped nature of the point of construction, I cannot recommend accepting a foundation/basement with these indicated problem areas for future owners. In general, the native clay soils around and under the foundation are saturated and will adversely effect the structure of this residence.

In the daily conduct of our Professional Engineering practice we see the results of this wet clay interaction with foundations of all types. We are often called upon to advise distressed homeowners on how to address such problems. We foresee at least $11,500 of immediate remedial work to begin to cope with just the general wet condition of the surrounding and supporting soils. With the passage of time, other root cause related structural settlement and cracking may emerge in this foundation which will require additional major maintenance investments on your part.

Following the inspection, Lamb immediately notified the Kesslers of Sharp's findings, and the Kesslers told him that they no longer wanted the house. Lamb then notified Baldwin that the Kesslers were withdrawing their offer.

When Baldwin found out about Sharp's opinion, it hired a different professional engineer, Willard Norton, to inspect the property. Norton inspected the property on July 30, 1993. That same day he sent a letter to Baldwin discussing his opinion. He wrote the following:

Examination of the basement area showed that, because of poor drainage around the foundation during its construction, water has built up around the outside of the basement area and has not drained away through the two means of drainage that you have developed. It can be assumed that this system is not effective in removing water from the base of the foundation. This is manifested by free water on the floor and dampness on the face of the concrete foundation up approximately one foot from the floor slab.

Since it is obvious that the drain tile exits are not functioning as expected, it, first behooves you to dig down at the southeast corner and check the T connection that allows the drain tile to drain to light. If this connection is not satisfactory, I recommend that you make the connection and flood the foundation with a root feeder at the west side of the concrete patio. This flooding should continue until water flows from the drain tile. It, obviously, will flow in that direction because, apparently, the connection to the gravel sewer line is not functioning.

If, after a few hours of flooding, water does not come out of the drain tile, I recommend that the T connection be opened for probing with a garden hose along the two sides from the corner. If blockage is found, the choice then becomes whether to continue to try to induce drainage through the existing system or to create a dry well and a sump pump to be installed as described. However, I find it hard to believe that your exposing the T and flooding will not cause a satisfactory drainage of the outside of your foundation....

Apparently, the remedy prescribed by Norton worked, and cost only a minimal amount of money--much less than Sharp's $11,500 estimate. Baldwin hired another professional engineer, Carl Martin, to inspect the property again in May, 1995. Martin concluded that there was no leakage problem and that the basement had been dry for at least a year.

Baldwin ended up selling the home in February, 1994, to another couple for an amount roughly $15,000 less than the amount last offered by the Kesslers. In May, 1995, Baldwin filed a petition with a claim against the Kesslers for breach of contract, and a claim against Sharp for tortious interference with a business relationship. Later, Baldwin conceded that no contract with the Kesslers ever existed, and dismissed them out of the lawsuit. The suit against Sharp continued. After several months of...