Birdsong v. Christians

• Decision Date: 10 December 1999
• Citation: 6 S.W.3d 218
• Parties: (Mo.App. S.D. 1999) Kenneth A. Birdsong, and Delta R. Birdsong, Appellants, v. Raymond Christians, and Darrell Kidd, d/b/a Darrell Kidd Extermination and Pest Control, Respondents. 22870
• Court: Missouri Court of Appeals

6 S.W.3d 218 (Mo.App. S.D. 1999)

Kenneth A. Birdsong, and Delta R. Birdsong, Appellants, v. Raymond Christians, and Darrell Kidd, d/b/a Darrell Kidd Extermination and Pest Control, Respondents.

22870

Missouri Court of Appeals Southern District

12/10/99

Appeal From: Circuit Court of Jasper County, Hon. George C. Baldridge

Counsel for Appellant: David J. Riesenmy

Counsel for Respondent: Joe Crosthwait and Tuck & Lukachick

Opinion Summary: None

Montgomery, P.J., and Prewitt, J., concur.

Robert S. Barney, Judge

Kenneth A. Birdsong and Delta R. Birdsong (collectively "Appellants") filed a "First Amended Petition for Damages" against Raymond Christians ("Christians") and Darrell Kidd ("Kidd"), d/b/a "Darrell Kidd Extermination and Pest Control," (collectively "Respondents"). In the first count of their amended petition, Appellants alleged that Christians fraudulently misrepresented the condition of a house that Appellants purchased from Christians. In the second count of their amended petition, Appellants claimed negligence on the part of Kidd regarding an improperly performed termite inspection on the house in question.

On August 28, 1998, Kidd filed motions for summary judgment as to the count against him in Appellant's first amended petition and as to Christians' cross-claim against him. The trial court sustained Kidd's summary judgment motions in a final judgment filed January 25, 1999, finding, inter alia, that "the pleadings, depositions, answers to interrogatories and affidavits on file show that there is no issue as to any material fact" as to both motions, and that Kidd was entitled to summary judgment as a matter of law.

The docket reflects that subsequently, on October 20, 1998, Christians filed a motion for summary judgment as to the count against him in Appellant's first amended petition. The trial court sustained Christians' motion for summary judgment, again finding that "the pleadings, depositions, answers to interrogatories and affidavits on file show that there is no issue as to any material fact" and that Christians was entitled to summary judgment as a matter of law.¹ Appellants appeal the trial court's awards of summary judgment as to the respective Respondents.

STANDARD OF REVIEW.

"When considering appeals from summary judgments, the Court will review the record in the light most favorable to the party against whom judgment was entered." ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). "We accord the non-movant the benefit of all reasonable inferences from the record." Id. Since the criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially, our review is essentially de novo. Id. A genuine issue exists, as to one of the material facts underlying the moving party's right to summary judgment, where the record contains competent evidence that demonstrates two plausible, but contradictory, accounts of the essential fact. See ITT Commercial Fin. Corp., 854 S.W.2d at 382. Evidence in the record presenting a genuine issue of material fact defeats a movant's right to summary judgment. Id. A genuine issue "implies that the issue, or dispute, must be a real and substantial one--one consisting not merely of conjecture, theory and possibilities." Id. at 378. The dispute must not be simply argumentative, frivolous or imaginary. Id. at 382. The requirements of Rule 74.04 govern motions for summary judgment in Missouri.² Rule 74.04(c)(1) provides the following:

Motions for summary judgment shall state with particularity in separately numbered paragraphs each material fact as to which the movant claims there is no genuine issue, with specific references to the pleadings, discovery or affidavits that demonstrate the lack of a genuine issue as to such facts. Each motion for summary judgment shall have attached thereto a separate legal memorandum explaining why summary judgment should be granted and affidavits not previously filed that are relied on in the motion.

Rule 74.04(c)(1). Rule 74.04(c)(2), which outlines the procedure to be followed by an adverse party after a motion for summary judgment is filed, states as follows:

Within thirty days after a motion for summary judgment is served, the adverse party shall serve a response on all parties, and, if the adverse party is relying on affidavits, the response shall have attached thereto affidavits not previously filed. The response shall admit or deny each of movant's factual statements in numbered paragraphs that correspond to movant's numbered paragraphs, shall state the reason for each denial, shall set out each additional material fact that remains in dispute, and shall support each factual statement asserted in the response with specific references to where each such fact appears in the pleadings, discovery or affidavits. The response may also have attached thereto a legal memorandum explaining why summary judgment cannot be granted. If the party opposing a motion for summary judgment has not had sufficient time to conduct discovery on the issues to be decided in the motion for summary judgment, such party shall file an affidavit describing the additional discovery needed in order to respond to the motion for summary judgment and the efforts previously made to obtain such discovery. For good cause shown, the court may continue the motion for summary judgment for a reasonable time to allow the party to complete such discovery.

Rule 74.04(c)(2). Additionally, "[w]hen a moving party makes a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to a judgment as a matter of law, the adverse party is not permitted to rest upon the mere allegations or denials of his pleadings." McAninch v. Robinson, 942 S.W.2d 452, 456 (Mo.App. 1997)(citing ITT Commercial Fin. Corp., 854 S.W.2d at 381). Rule 74.04(e) provides, in part, that a party responding to a properly supported motion for summary judgment must respond in the manner set forth in the rule, and if the party fails to do so, "summary judgment, if appropriate, shall be entered against that party." Southard, 904 S.W.2d at 530 (Mo.App. 1995); see ITT Commercial Fin. Corp., 854 S.W.2d at 380. Further, "[f]ailure to respond to the factual allegations in [a] defendant's motion for summary judgment is an admission of those facts." Williams v. Thomas, 961 S.W.2d 869, 872 (Mo.App. 1998). However, "[t]he key to a summary judgment is the undisputed right to a judgment as a matter of law; not simply the absence of a fact question." Southard v. Buccaneer Homes Corp., 904 S.W.2d 525, 530 (Mo.App. 1995). Therefore, if, as a matter of law, the judgment is sustainable on any theory, even one entirely different than that posited at trial, it should be sustained. See ITT Commercial Fin. Corp., 854 S.W.2d at 387-88; McCready v. Southard, 671 S.W.2d 385, 387 (Mo.App. 1984); see also Cullom v. Crittenton, 959 S.W.2d 915, 917 (Mo.App. 1998).

DISCUSSION AND DECISION.

I.

As this Court understands Appellants' contentions, in May of 1993, Appellants had a complete inspection made of the house. At that point they found severe termite infestation, severe water rot to the exterior walls of the house, that the roof had leaked, that the roof had unsatisfactory repairs made to it, and that what Appellants thought was stucco was instead an inferior product consisting of pressed wood chips and vinyl. Further, Appellants have experienced flooding in their basement since moving into the house.

In their first point on appeal, Appellants claim the trial court erred in granting summary judgment in favor of Kidd as to their claim of negligence in that "termites were present in the home at the time of the inspection by . . . Kidd and that they were in fact visible to the naked eye at the time of the inspection . . . ."³

The record shows that on or about September 3, 1992, Darrel Kidd inspected the house in question and stated in his inspection report "[n]o active termites found in the structure at this time based on careful visual inspection" and that the house did "not appear to have structural damage with a visual inspection."

Kidd's motion for summary judgment alleged that there existed no disputed material facts in the lawsuit. In order for Kidd to be entitled to summary judgment, he had to establish one of the following:

(1) facts that negate any one of the claimant's elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense.

ITT Commercial Fin. Corp., 854 S.W.2d at 381. To support his motion for summary judgment, Kidd sought to show that there was no factual dispute concerning his actions and that those actions did not constitute a breach of his duty. To accomplish this, Kidd attached his affidavit which averred that he "made a complete visual inspection of the entire home, as well as sounding the wood structures on both the interior and exterior base of the home" and that "[a]t no time did [he] find any visible evidence of termite infestation, termite tubes or mud runs located anywhere on the subject property." Kidd also attached a copy of the inspection report for the house, noted supra. Additionally, Kidd attached the deposition testimony of Darryl Sanders, Ph.D., an expert in "urban entomology." Dr. Sanders testified, in essence, that if Kidd examined the house in the manner that Kidd claimed he did, Dr. Sanders could not testify "within a reasonable degree of certainty that [Kidd] carelessly and negligently performed this examination."

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