Captiva Lake Invs., LLC v. Ameristructure, Inc.

• Citation: 436 S.W.3d 619
• Decision Date: 19 August 2014
• Docket Number: No. ED 100569.,ED 100569.
• Court: Court of Appeal of Missouri (US)
• Parties: CAPTIVA LAKE INVESTMENTS, LLC, a Missouri Limited Liability Company, and Cypress Condominium at the Lake of the Ozarks Association, Plaintiffs/Appellants, v. AMERISTRUCTURE, INC., a Missouri Corporation, and Stephen J. Sacco, Defendants/Respondents.

436 S.W.3d 619

CAPTIVA LAKE INVESTMENTS, LLC, a Missouri Limited Liability Company,
and
Cypress Condominium at the Lake of the Ozarks Association, Plaintiffs/Appellants,
v.
AMERISTRUCTURE, INC., a Missouri Corporation,
and
Stephen J. Sacco, Defendants/Respondents.

No. ED 100569.

Missouri Court of Appeals,
Eastern District,
Division Two.

April 22, 2014.
Motion for Rehearing and/or Transfer to Supreme Court Denied June 5, 2014.
Application for Transfer Denied Aug. 19, 2014.

[436 S.W.3d 621]

Donald K. Anderson, Jr., Donald H. Sanders, III, St. Louis, MO, for Plaintiffs/Appellants.

Gary E. Snodgrass, William S. Thomas, Robyn G. Fox, St. Louis, MO, for Defendants/Respondents.

SHERRI B. SULLIVAN, Judge.
Introduction

Captiva Lake Investments, LLC, a Missouri Limited Liability Company (Captiva), and Cypress Condominium At The Lake Of The Ozarks Association (Cypress) (collectively Appellants) appeal from the trial court's judgment granting the Amended Motion for Summary Judgment of Ameristructure, Inc. (Ameristructure) and Ameristructure's president and professional engineer Stephen J. Sacco (Mr. Sacco) (collectively Respondents) and entering judgment in favor of Respondents and dismissing with prejudice Counts I, IV, V and VII of Appellants' Second Amended Petition. We affirm.

[436 S.W.3d 622]

Factual and Procedural Background

In 2005, Majestic Pointe Development Company, LLC (MPDC) was endeavoring to construct the Majestic Pointe Condominiums (Project) on some land MPDC owned in the Lake of the Ozarks. On August 8, 2005,¹ MPDC, as owner of the Project, contracted with Kidwell Construction, Inc. (Kidwell) as general contractor for the construction of two condominium complexes known as Building No. 4 and Building No. 5 in furtherance of the Project (General Contract). Building No. 5 was completed; Building No. 4 was not.

On September 9, 2005, and then as amended on October 27, 2005, to convert an hourly pay structure to a fixed fee of $129,000.00, Kidwell and Ameristructure contracted (Subcontract) for Ameristructure to provide architectural and engineering services with regard to Building No. 4, with a clause specifically limiting Ameristructure's liability on the Project to the agreed-upon fixed fee. The Subcontract provided for eight site visits during construction, but contained no provision regarding construction supervision.

On December 2, 2005, Ameristructure signed an Architect's Consent Agreement at the request of National City Bank (Bank) that either purported to consent to MPDC's collateral assignment of the General Contract it had with Kidwell to Bank or consent to MPDC's collateral assignment of the Subcontract between Ameristructure and Kidwell to Bank.²

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On March 13, 2006, MPDC, in order to obtain additional funding for the Project, in particular the completion of Building No. 4, signed two promissory notes in favor of Bank in the amounts of $20,080,000.00 and $1,200,000.00 and agreed as security for said notes (collectively “Note” or “Loan”) to an “Assignment of Plans, Specifications, Construction and Service Contracts, Licenses, and Permits” (Construction Deed of Trust or Collateral Assignment) whereby MPDC collaterally assigned to Bank any and all of its right, title, and interest in certain contracts for construction and other services issued for Building No. 4. On this same date, Kidwell executed a Contractor's Consent Agreement and acknowledged or consented to the Construction Deed of Trust or Collateral Assignment between MPDC and Bank for the purpose of procuring additional funds in furtherance of the Project.

In June 2008, Bank commissioned an engineering firm, EDM, Inc. (EDM), to review certain construction documents and building elements to prepare a Building Analysis Report of Building No. 4 (EDM Report). On June 25, 2008, the EDM Report was created outlining certain deficiencies in Building No. 4.

MPDC defaulted on its obligations to Bank.

On June 16, 2009, Captiva was created. On July 22, 2009, Bank and Captiva entered into an agreement whereby Bank transferred its interest in the Loan and Construction Deed of Trust to Captiva (Loan Assignment). The Loan Assignment provides “this Assignment is given without recourse, warranty or representation, express or implied.” Captiva then foreclosed on the property. On August 11, 2009, Captiva delivered to Ameristructure a notice titled “Notification of Disposition of Collateral and Notification of Foreclosure of Real Property.” On September 1, 2009, Captiva purchased the Project condominium property, including Building No. 4, from itself as the holder of the Note, in “as is where is” condition.

On September 29, 2010, Captiva filed the initial petition in this case. On June 8, 2011, Captiva filed its first amended petition. On March 7, 2012, Ameristructure and Mr. Sacco filed their motion for summary judgment.

On April 2, 2012, Cypress was created as a non-profit corporation homeowner's association with regard to the common areas of the condominium property. On that same day, Captiva filed a motion to “further amend its petition by adding parties and counts,” seeking to add Cypress as a party-plaintiff. On April 4, 2012, Captiva filed another motion to amend its petition, which the trial court granted on April 9, 2012.

On April 9, 2012, Captiva filed a second amended petition (petition), adding Cypress as a plaintiff. Cypress maintains it owns all common areas within and appurtenant to Building No. 4 of the Project, and alleges it represents the rights and interests of the condominium owners with respect to said common elements.

The petition with Captiva and Cypress as plaintiffs asserts a claim of negligence against Ameristructure in Count I; breach of contract against Ameristructure in Count IV; negligence against Mr. Sacco in Count V, and breach of implied warranties against both Ameristructure and Mr. Sacco in Count VII. All of these claims are based on monetary damages Appellants maintain they have incurred or will incur

[436 S.W.3d 624]

based on rectifying alleged deficiencies in Building No. 4 as noted in the EDM Report. Appellants assert the costs of completion and remediation of Building No. 4 amount to $2,950,000.00.

On May 22, 2013, Ameristructure and Mr. Sacco filed their amended motion for summary judgment, or in the alternative for partial summary judgment (motion). On June 27, 2013, Appellants filed their response to the motion. On July 11, 2013, Respondents filed their reply. On July 26, 2013, Appellants filed their sur-reply with memorandum in support filed August 5, 2013. On August 6, 2013, the trial court called, heard and took the motion as submitted. On August 26, 2013, the trial court entered its judgment granting the motion and entering judgment in favor of Respondents thereon and dismissing with prejudice Counts I, IV, V and VII of Appellants' petition. The trial court also denied the alternative motion as moot. This appeal, timely filed on October 1, 2013, follows.

Points Relied On

In their first point, Appellants maintain the trial court erred in entering summary judgment with regard to Count I, negligence against Ameristructure; Count IV, breach of contract against Ameristructure, and Count VII, breach of implied warranties against both Respondents, of their petition because Ameristructure consented to Kidwell's assignment of its subcontract with Ameristructure to Bank and/or Appellants; there exists privity of contract between Appellants and Respondents, and Ameristructure expressly agreed to supervise the Project during construction in consideration of and payment for services by Bank.

In their second point, Appellants claim the trial court erred in entering summary judgment with respect to Count VII of their petition because Respondents did not and cannot demonstrate entitlement to summary judgment on Count VII.

In their third point, Appellants assert the trial court erred in entering summary judgment with respect to Count V, negligence against Mr. Sacco, of their petition because whether Mr. Sacco owed a duty of care to Appellants is a disputed issue of material fact.

In their fourth point, Appellants contend the trial court erred in entering summary judgment with regard to Counts I, IV, V and VII of their petition because in doing so it considered authority that was factually inaccurate and filed late by Respondents without providing Appellants notice or an opportunity to respond.

Standard of Review

Summary judgment is a proper remedy when the moving party demonstrates there are no genuine issues of material fact and the party is entitled to judgment as a matter of law. Comp & Soft, Inc. v. AT & T Corp., 252 S.W.3d 189, 194 (Mo.App. E.D.2008). Our review of the judgment is de novo. ITT Commercial Fin. Corp. v. Mid–America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). Genuine issues exist when the record contains material that raises plausible but contradictory views of the essential facts. Id. at 382. Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. Id. at 376.

A defending party moving for summary judgment may establish a right to judgment by showing facts that negate any one of the claimant's elements. Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322 S.W.3d 112, 120 (Mo.banc 2010). “If the moving party makes a prima facie

[436 S.W.3d 625]

showing that it is entitled to judgment as a matter of law, the non-moving party then has a specific burden.” Id. A denial may not rest upon the mere allegations of the party's pleading. Id. Rather, the response shall support each denial with specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial. Id. The court accords the non-moving party the benefit of all reasonable inferences in the record. ITT, 854 S.W.2d at 376. An order of summary judgment may...