Jungers v. Webster Elec. Coop., Inc.

• Court: Missouri Court of Appeals
• Writing for the Court: JEFFREY W. BATES, J.
• Citation: Jungers v. Webster Elec. Coop., Inc., 577 S.W.3d 498 (Mo. App. 2019)
• Decision Date: 12 June 2019
• Docket Number: No. SD 35582,SD 35582
• Parties: David A. JUNGERS and Leisa Jungers, husband and wife, Individually and as Trustees of the David A. Jungers Trust, Dated May 15, 2001, Plaintiffs-Appellants, v. WEBSTER ELECTRIC COOPERATIVE, INC., a Missouri Corporation, Defendant-Respondent.

577 S.W.3d 498

David A. JUNGERS and Leisa Jungers, husband and wife, Individually and as Trustees of the David A. Jungers Trust, Dated May 15, 2001, Plaintiffs-Appellants,

v.WEBSTER ELECTRIC COOPERATIVE, INC., a Missouri Corporation, Defendant-Respondent.

No. SD 35582

Missouri Court of Appeals, Southern District, Division Two.

Filed: June 12, 2019

Attorneys for Appellants: Andrew H. McCue and Clayton E. Gillette of Kansas City, MO.

Attorney for Respondent: Steven J. Blair of Springfield, MO.

JEFFREY W. BATES, J.

Plaintiffs David and Leisa Jungers, individually and as trustees of the David A. Jungers Trust (collectively referred to as the Jungers), filed suit against Defendant Webster Electric Cooperative, Inc. (Webster) for damages allegedly caused by the negligent installation of a transformer in the Jungers' home. Webster paid to repair the damage. At the time the alleged damage occurred, the Jungers were in the process of selling their home under a contract for deed, and the buyers later backed out of the sale. The Jungers sought damages from Webster resulting from the lost sale. Webster moved for summary judgment. The legal basis for the motion was that the Jungers' damages were limited to cost of repair. The trial court agreed. The court decided that the Jungers were barred from recovering the additional damages they sought, either in the form of diminution of fair market value or for the loss of the benefit of the bargain from the contract for deed. Because the Jungers were not entitled to these additional damages and Webster had already paid the cost of repair, the trial court entered summary judgment in Webster’s favor.

Presenting two points on appeal, the Jungers contend the trial court misapplied the law in limiting damages to the cost of repair because: (1) they were also entitled to recover consequential damages, which include loss of the benefit of the bargain under the contract for deed; and (2) alternatively, they were not precluded from recovering damages for diminution of value where the repair costs were insufficient to restore the property to its pre-injury value. Finding no merit to either point, we affirm.

Standard of Review

A summary judgment shall be granted "[i]f the motion, the response, the reply and the sur-reply show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law[.]" Rule 74.04(c)(6); Schnurbusch v. W. Plains Reg'l Animal Shelter , 507 S.W.3d 675, 679 (Mo. App. 2017).¹ "Facts come into a summary judgment record only via Rule 74.04(c)’s numbered-paragraphs-and-responses framework." Jones v. Union Pac. R.R. Co. , 508 S.W.3d 159, 161 (Mo. App. 2016) (italics in original). Thus, when reviewing a summary judgment, we review the undisputed material facts established by the process set forth in Rule 74.04(c). Alvis v. Morris , 520 S.W.3d 509, 511-12 (Mo. App. 2017). "We view the record in the light most favorable to the non-moving party, drawing all inferences in that party’s favor." Progressive Max Ins. Co. v. Hopkins , 531 S.W.3d 649, 651 (Mo. App. 2017) ; see also Lindsay v. Mazzio's Corp. , 136 S.W.3d 915, 920 (Mo. App. 2004).

As a defending party, Webster can establish a right to summary judgment by showing: (1) facts negating any one of the claimant’s elements facts; (2) the claimant, after an adequate period of discovery, has been unable, 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) the undisputed facts support each of the necessary elements of the defending party’s properly pleaded affirmative defense. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 381 (Mo. banc 1993). "Each of these three means establishes a right to judgment as a matter of law." Lindsay , 136 S.W.3d at 920. Because the propriety of summary judgment is purely an issue of law, we review the grant of a summary judgment de novo. Id . at 919.

Factual and Procedural Background

The material facts are not in dispute. Prior to or during construction of the Jungers' residence at issue in this case, Webster installed a pad-mounted electrical transformer on the property. Webster ran an 800-amp electrical service from the transformer through underground conduits to the electrical panel in the basement of the house.

In February 2009, the Jungers agreed to sell the property for $4.45 million under a contract for deed to the Edwards (hereinafter referred to as the Edwards' contract). In partial performance of this contract, the Edwards paid $1.2 million to the Jungers at that time, with the balance to be paid in installments through November 2009. The Edwards took possession of the property in March 2009.

By early May 2009, water accumulated in the transformer and drained through the conduits into the electrical panel. Webster paid $4,780.84 to repair the damage to the property caused by the May water intrusion. In mid-June 2009, Webster lengthened the conduits within the transformer and filled them with silicone caulking to prevent water from entering.

In September 2009, the Edwards filed suit against the Jungers to rescind the Edwards' contract.² The suit was later settled, with the Edwards returning the property to the Jungers, and the Jungers refunding $1 million of the Edwards' initial payment to them. The Jungers retained $200,000 of that payment.

Thereafter, the Jungers sold a portion of the property for $670,000. They later separately sold the house and the remaining property for $2.5 million to the Groves (Groves' contract).

In April 2014, the Jungers filed a single-count petition alleging that Webster negligently installed the transformer, which permitted water to invade the property. The petition further alleged that Webster’s negligence caused: (1) the value of the property to diminish by more than $1 million; and (2) the Jungers to lose the benefit of the bargain they had made under the Edwards' contract and incur other incidental damages.

In February 2018, Webster moved for summary judgment. Webster argued that its payment of the costs to repair the damage precluded the Jungers from recovering any additional damages, including damages for diminution of value or the loss of the Edwards' contract.

In April 2018, the trial court entered an order partially granting and partially denying summary judgment. With respect to real property damages, the court granted a partial summary judgment that limited such damages to the previously paid cost of repair:

Court finds no genuine issue of material fact that the repairs to the property were successful, and the cost thereof constituted a tiny, insignificant fraction of the alleged diminution of value of the property. The Court also finds, and [the Jungers] candidly conceded at oral argument, that they cannot recover both the diminution and the benefit of the bargain of the Edwards contract. Court finds, based upon the undisputed facts, that as it pertains only to the damage to the property itself, the proper measure of damages is the cost of repair, which [Webster] has already paid.

(Italics in original.) However, with respect to the "alleged personal, consequential damages stemming from the loss of the (rescinded) Edwards' contract[,]" the court denied summary judgment. The court found that genuine issues of fact exist as to whether such damages were "caused by [Webster’s] alleged negligence, and, whether such damages go beyond and are sufficiently separate from the alleged damage to the property itself."

In May 2018, the Jungers modified their calculation of damages to total $1,230,329.69. The new total consisted of the difference between the Edwards' contract of $4.45 million and Groves' contract of $2.5 million, less credit for proceeds retained at rescission ($200,000) and from the sale of a portion of the property ($670,000), plus interest paid on a line of credit to repay the Edwards in the amount of $150,329.69. With respect to repairs to the property, the Jungers also stated that "[a]ll repairs known or believed to be related to the water intrusion" were paid by Webster.

In June 2018, Webster filed a motion to clarify the ruling on the damages issue. After hearing argument on the motion, the court clarified that, "to the extent [the Jungers] seek to recover damages for the difference between the total amount of the Edwards' contract and the (combined) amounts for which they later sold the separate parcel of land and house, said difference is merely a manifestation or alternative form of diminution of value, and given the Court’s prior findings, is not submissible here." The court further decided that "other, personal consequences of the rescinded Edwards contract allegedly caused by [Webster’s] negligence, and not measured by diminution of value, may be sought. Such items might include interest charges, closing costs, real estate commissions, moving expenses and the like. It appears MAI 4.01 will apply."³

Thereafter, the Jungers amended their answer to Webster’s damage interrogatory to withdraw all claims for damages except those arising from the difference between the Edwards' and Groves' contracts, less applicable credits. In response, Webster moved the court to reconsider its ruling on Webster’s previously filed summary judgment motion in light of this amended interrogatory answer.⁴

In mid-June 2018, the trial court entered a complete summary judgment in Webster’s favor for the following reasons: (1) there were no compensable property damages potentially recoverable by the Jungers because the cost-of-repair rule governed the Jungers' damage claims and precluded any additional damages for diminution of value; (2) Webster had paid all such repair costs; and (3) the difference between the Edwards' and Groves' contracts for the purchase of the property was "merely a manifestation or alternative form of diminution in value" damages. This appeal followed.

Discussion and Decision

"The...