Judy v. Arkansas Log Homes, Inc.

• Decision Date: 26 March 1996
• Docket Number: Nos. WD,s. WD
• Parties: Dan and Bonnie JUDY, Respondent, v. ARKANSAS LOG HOMES, INC., Respondent-Appellant, Norton Company, Respondent. 50082, WD 50083.
• Court: Missouri Court of Appeals

Page 409

923 S.W.2d 409

Dan and Bonnie JUDY, Respondent, v. ARKANSAS LOG HOMES, INC., Respondent-Appellant, Norton Company, Respondent.

Nos. WD 50082, WD 50083.

Missouri Court of Appeals,

Western District.

March 26, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 30, 1996.

Application to Transfer Denied June 25, 1996.

Scott W. Mach, The Popham Law Firm, Kansas City, Karl Zobrist, M. Courtney Koger, Blackwell Sanders Matheny Weary & Lombardi, Kansas City, for appellant.

William R. Merryman, Kansas City, for respondent.

Before ELLIS, P.J., and HANNA and SPINDEN, JJ.

ELLIS, Presiding Judge.

This is an appeal and cross-appeal from the Circuit Court of Clay County. On February 19, 1988, Plaintiffs Judys, Haggards, Elders, Weisgerbers, Minders, and Harshmans filed their lawsuit against Arkansas Log Homes, Inc. ("ALH") seeking damages arising from the plaintiffs' purchase of and ALH's manufacture, design, and supply of log home kits used to construct the plaintiffs' log homes. The plaintiffs alleged their homes rotted because the joints between the logs of the home were improperly designed.

Specifically, the ALH log home joints allowed water to penetrate the seal where it was absorbed by the masonite spline which held the joint together, and accumulated and remained in the groove cut in the logs which caused the logs to decay from the interior out. The plaintiffs' Petition for Damages presented five counts: Count I alleged a breach of express warranty; Count II alleged a breach of implied warranty; Count III alleged fraudulent representation; Count IV alleged negligence; and Count V alleged strict products liability.

On January 31, 1990, the plaintiffs filed their First Amended Petition for Damages to join Plaintiffs Langs. The substantive allegations of the amended petition remained unchanged. Thereafter, on April 29, 1991, by means of a Second Amended Petition for Damages, the plaintiffs joined Defendant Norton Company ("Norton") which provided the polyurethane foam gaskets used to seal the joints between the logs of the homes. The original five counts against ALH remained the same, but the plaintiffs added Counts VI through X directed solely against Norton. The counts alleged breach of express warranty, breach of implied warranty, fraud, negligence, and strict products liability, respectively.

Both defendants filed motions for summary judgment asserting the plaintiffs' claims were time-barred. On January 6, 1992, after review of all motions, suggestions, and affidavits and upon hearing oral argument and considering admissions by plaintiffs and information in depositions, the trial court concluded the applicable statute of limitations was five years and sustained Norton's motion on Counts VI through X. However, ALH's motion was denied. ¹

On June 13, 1994, trial commenced wherein the plaintiffs pursued Counts I through V against ALH. At the close of plaintiffs' evidence, ALH moved for a directed verdict. The motion was sustained as to Count I (express warranty) and the plaintiffs voluntarily abandoned and withdrew their claim under Count V (strict products liability). At the close of all evidence, ALH again moved for a directed verdict. The trial court sustained the motion as to Plaintiffs Langs on the ground their claims were time-barred by the five-year statute of limitations and to Plaintiffs Elders on the ground they failed to prove they purchased an ALH log home. The remaining plaintiffs abandoned and withdrew their claim under Count II (implied warranty). Therefore, only Count III (fraudulent representation) and Count IV (negligence) were submitted to the jury. The jury returned a verdict in favor of Plaintiffs Judys, Harshmans, Haggards, and Weisgerbers on Count III and in favor of Plaintiffs Minders on Count IV, and the trial court entered judgments accordingly. ALH and Plaintiffs Langs and Elders each filed post-trial motions; both were denied. ALH and Plaintiffs now appeal, each asserting several points of error.

On appeal, Plaintiffs Langs and Elders contend the trial court erred in directing a verdict against them. All plaintiffs challenge the trial court's grant of summary judgment in favor of Norton. ALH asserts the trial court erred in denying its motion for summary judgment and its two motions for directed verdict. ALH further alleges the trial court erred in submitting the fraud verdict directing instruction and the Minders' negligence claim.

SUMMARY JUDGMENT

The trial court sustained Norton's motion for summary judgment on the grounds the plaintiffs' claims against Norton were time-barred by the applicable five-year statute of limitations (§ 516.120). ² ALH's motion for summary judgment was denied. The plaintiffs and ALH both appeal, alleging error by the trial court.

We first address ALH's purported appeal from the trial court's denial of its motion for summary judgment. In its Point I, ALH asserts dual error by the trial court in denying its motion for summary judgment In Parker v. Wallace, 431 S.W.2d 136 (Mo.1968), the plaintiff moved for summary judgment and the trial court overruled the motion. After trial, and on appeal, he assigned the denial of his motion for summary judgment as error. Our Supreme Court refused to review the issue, stating:

and the subsequent failure to sustain its motions for directed verdict. We will discuss the latter argument, infra, but we decline to review the denial of ALH's motion for summary judgment.

The matter of the propriety of the court's action in overruling a motion for summary judgment is not an appealable order. Upon that ruling, the issues raised by the pleadings are still in the case, and it is upon those issues, when decided and if timely and properly presented, that an appeal lies. (Citations omitted).

Id. at 137. Following Parker, this court has frequently held that "[d]enial of a motion for summary judgment is not subject to appellate review, even when an appeal is taken from a final judgment and not from the denial of a motion for summary judgment." State ex rel. Missouri Div. of Transp. v. Sure-Way Transp., Inc., 884 S.W.2d 349, 351 (Mo.App.1994). See also Kabir v. Missouri Dep't of Social Servs., 845 S.W.2d 102, 103 (Mo.App.1993); Chism v. Steffens, 797 S.W.2d 553, 557 (Mo.App.1990). We are mindful of the Eastern District's opinion in Sharpton v. Lofton, 721 S.W.2d 770 (Mo.App.1986), where that District reached a contrary result. However, we also note that in later cases the Eastern District has continued to follow Parker v. Wallace, without mention of Sharpton. See Cape Retirement Community Inc. v. Kuehle, 798 S.W.2d 201, 202 (Mo.App.1990); Erickson v. Pulitzer Publishing Co., 797 S.W.2d 853, 857 (Mo.App.1990). Moreover, this court has recognized that the Sharpton court cited no authority for its contrary position, State ex rel. Missouri Div. of Transp., 884 S.W.2d at 352, and has further pointed out that we are required to follow the most recent controlling decision of our Supreme Court. Id.; Mo. Const. art. V, § 2 (1945). Therefore, we conclude that we should not review ALH's Point I to the extent that it is contending that the trial court erred in denying its motion for summary judgment. ³

We come now to the plaintiffs' appeal of the summary judgment entered in favor of Norton against all plaintiffs. All plaintiffs assert the trial court erred in doing so.

"Summary judgment is designed to permit the trial court to enter judgment, without delay, where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law." ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The propriety of summary judgment is purely an issue of law which we review de novo on the record submitted and the law. Id.

When reviewing the entry of summary judgment, we view the evidentiary record in the light most favorable to the party against whom summary judgment was granted, determine if any genuine issue of fact exists which would require a trial, and determine if the judgment is correct as a matter of law. We will affirm if the judgment is sustainable as a matter of law under any theory.

State ex rel. Conway v. Villa, 847 S.W.2d 881, 886 (Mo.App.1993) (citations omitted). A genuine issue of fact exists where the record contains competent evidence that two plausible but contradictory accounts of essential facts exist. ITT Commercial Fin. Corp., 854 S.W.2d at 382.

For purposes of summary judgment, "[a] 'defending party' is one against whom recovery is sought." Id. at 380. Thus, in the case at bar, Norton is a defending party.

Where a "defending party" will not bear the burden of persuasion at trial, that party need not controvert each element of the non-movant's claim in order to establish a Id. at 381.

right to summary judgment. Rather, a "defending party" may establish a right to judgment by showing (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. Regardless of which of these three means is employed by the "defending party," each establishes a right to judgment as a matter of law.

Norton sought summary judgment on the basis that all the plaintiffs' claims against it were barred by the applicable five year statute of limitations, § 516.120. Norton had pleaded the statute of limitations as an affirmative defense in its answer to plaintiffs' second amended petition. The trial court entered judgment for Norton on this ground. The record before us reveals that Norton supported its motion with extensive...