Miller v. Big River Concrete

• Decision Date: 11 January 2000
• Citation: 14 S.W.3d 129
• Parties: (Mo.App. E.D. 2000) Darrin Miller and Mary J. Miller, Plaintiffs/Appellants, v. Big River Concrete, LLC, Jefferson County Ready-Mix, Inc., and Big River Concrete Company, Defendants, and John Wolf and W.R. Grace and Company, Defendants/Respondents. Case Number: ED75917 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

14 S.W.3d 129 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court

Darrin Miller and Mary J. Miller, Plaintiffs/Appellants, v. Big River Concrete, LLC, Jefferson County Ready-Mix, Inc., and Big River Concrete Company, Defendants, and John Wolf and W.R. Grace and Company, Defendants/Respondents.

Case Number: ED75917

Missouri Court of Appeals Eastern District

Handdown Date: 01/11/2000

Appeal From: Circuit Court of Jefferson County, Hon. Gary P. Kramer

Counsel for Appellant: Steven W. Koslovsky and S. Diane Turpin

Counsel for Respondent: James B. James and Stephen D. Palley

Opinion Summary: Plaintiffs Darrin and Mary Jo Miller, husband and wife, appeal the summary judgment granted in favor of defendants, John Wolf and W.R. Grace & Company.

JUDGMENT REVERSED AND REMANDED.

Division One Holds: The trial court erred in granting summary judgment because: (1) genuine issues of material fact exist concerning whether John Wolf knew or should have known that results of the "Swiss Hammer Test" would be provided to the Millers and whether they were entitled to rely on the representations made by John Wolf and W.R. Grace & Company; (2) privity is not a necessary element to establish defendants' liability to plaintiffs.

Opinion Author: Paul J. Simon, Judge

Opinion Vote: JUDGMENT REVERSED AND REMANDED. Gaertner, P.J., and Dowd, J., concur.

Opinion:

Plaintiffs Darrin and Mary Jo Miller, husband and wife, appeal the summary judgment granted in favor of defendants John Wolf (Wolf) and W.R. Grace & Company (Grace).

Plaintiffs contend that the trial court erred in granting summary judgment because: (1) genuine issues of material fact existed concerning whether Wolf knew or should have known that results of the "Swiss Hammer Test" would be provided to the Millers and whether they were entitled to rely on the representations made by Wolf and Grace ; and (2) the lack of contractual privity between the Millers and Wolf and Grace is not dispositive of whether Wolf and Grace were negligent. We reverse and remand.

It is well-settled that when considering an appeal from summary judgment, we review the record in the light most favorable to the non-movant. ITT Commercial Finance v. Mid-America Marine, 854 S.W.2d 371, 376 (Mo.banc 1993). Our review is essentially de novo. Id. at 376. The criteria on appeal for testing the propriety of summary judgment are no different from those which are employed by the trial court to determine the propriety of sustaining the motion initially. Id. The burden on a summary judgment movant is to show a right to judgment flowing from facts about which there is no genuine dispute. Id. at 387.

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 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 the facts necessary to support the movant's properly pleaded affirmative defense. Id. at 381.

The non-movant must show by affidavit, depositions, answer to interrogatories, or admissions on file, that one or more of the material facts shown by the movant to be above any genuine dispute is, in fact, genuinely disputed. Id. at 381. A "genuine issue" exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts. Id. at 382. A "genuine issue" is a dispute that is real, not merely argumentative, imaginary or frivolous. Id.

The record, viewed in the light most favorable to the plaintiffs, reveals that they purchased a lot to construct a home. Darrin Miller has experience in the construction field and acted as general contractor on the construction of the home. Plaintiffs hired ET Concrete to pour the foundation, which ordered concrete from Big River Concrete LLC (Big River) and Jefferson County Ready Mix, Inc (Ready Mix). In the course of pouring the foundation, ET Concrete noticed that the concrete was not of the proper consistency and contained significant amounts of debris. After receiving assurances from Big River and Ready Mix, ET Concrete proceeded with completion of the foundation. Subsequently, plaintiffs noticed that portions of the foundation had begun to crumble and disintegrate.

Plaintiffs and Cricket Whaley, the owner of Big River and Ready Mix, agreed that the concrete should be tested. Big River asked Wolf, a concrete salesman for Grace and a civil engineer with a degree from the University of Missouri at Rolla, to test the strength of the concrete by performing the "Swiss Hammer Test" on the foundation. Big River was a customer of Grace and the service was performed by Wolf gratuitously, as a customer service. Wolf was informed that he was to observe the concrete at the request of a third party, that the foundation was part of a residential construction belonging to plaintiffs and that plaintiffs wanted to be present at the testing.

Big River informed Wolf that the foundation he was testing was 10 days old, when it was in fact about 20 days old. Wolf informed Big River that the test was most accurate after 28 days, which is the curing time for concrete and that the test would not be a particularly accurate indication of the strength of the concrete. Big River insisted that Wolf perform the test anyway.

Wolf performed the "Swiss Hammer Test," without plaintiffs being present and submitted a letter to Cricket Whaley with the results. The letter, titled "Swiss Hammer strength tests at Miller [Plaintiffs] Residence," stated:

"Tests were conducted on 9-18-96 when concrete was approximately 10 days old. Tests were run at six locations. Indicated strengths were in a range of 2000 to 2200 PSI, which would project a 28 day strength in excess if 2500 PSI. Please call if you have any questions."

BOCA requirements, or building code requirements, in Jefferson County for plaintiffs' residence are 2500 PSI after curing of the concrete.

Big River telephoned plaintiffs and informed them that the "Swiss Hammer Test" had been performed on the foundation of their home and that the foundation was "okay." Big River faxed a letter to the plaintiffs which stated that the results of Wolf's test indicated that the strength of the concrete would endure without significant distress throughout the service of the residence. Big River attached a copy of the letter to Cricket Whaley reporting the test results prepared by Wolf.

Plaintiffs had ceased construction on the residence until the results of the "Swiss Hammer Test" were received. After receiving the report and talking with Big River, plaintiffs resumed construction of the residence, adding a sub-floor, exterior walls and some of the interior walls. Subsequently, plaintiffs again became concerned about the strength of the concrete and contacted Wolf directly.

Thereafter, plaintiffs hired SCI to retest the foundation. It conducted a "compressive strength test," which is generally considered by experts in the field to be more reliable than the "Swiss Hammer Test." As a result of the tests, the foundation was found to be inadequate and below the BOCA requirements. Plaintiffs again ceased construction, except to protect the sub-floor and walls from the elements and filed this action.

Plaintiffs filed their Second Amended Petition naming as defendants Big River, Ready Mix, Wolf and Grace. Counts I and II alleged a breach of the implied warranty of fitness and breach of the implied warranty of merchantability, respectively, by Big River and Ready Mix. Counts III and IV alleged negligent misrepresentation and negligence, respectively, by Wolf and Grace.

Wolf and Grace filed their motion for summary judgment alleging that there was no genuine dispute of material fact and that they were entitled to a judgment as a matter of law on the negligent misrepresentation and negligence counts because: (1) plaintiffs did not justifiably rely on the test in that Darrin Miller, who was experienced in construction, indicated that he did not consider the test accurate; (2) Wolf was not in privity with plaintiffs, nor was he aware that Big River intended to supply the information to plaintiff; and (3) plaintiffs' damages claim was for purely economic loss.

Plaintiffs filed a response, alleging genuine issues of material fact, including whether: (1) plaintiffs relied upon the results of the Swiss Hammer test in proceeding with construction; (2) Wolf and Grace were negligent in conducting the "Swiss Hammer Test;" (3) Wolf and Grace knew or should have known that plaintiffs would rely on their testing and conclusion in deciding whether to accept the concrete delivered by Big River and Ready Mix and continue construction or replace the foundation; (4) it was reasonable for plaintiffs to rely on representations made by Wolf and Grace; and (5) Darrin Miller's general knowledge of the "Swiss Hammer Test," while not being trained in how to conduct the test, and his concerns about the test are sufficient to prevent a finding that plaintiffs relied upon the results of the test conducted by an expert, Wolf, an engineer. In...