Saunders-Thalden and Associates, Inc. v. Thomas Berkeley Consulting Engineer, Inc., SAUNDERS-THALDEN

Decision Date03 March 1992
Citation825 S.W.2d 385
CourtMissouri Court of Appeals

Kevin E. Glynn, Kansas City, for appellant.

Michael Andrew Childs, Kansas City, for respondent.

Before FENNER, P.J., and ULRICH and SPINDEN, JJ.

FENNER, Presiding Judge.

Appellant, Saunders-Thalden and Associates, Inc. (Saunders-Thalden), appeals the order of the trial court granting summary judgment to respondent, Thomas Berkeley Consulting Engineer, Inc. (Berkeley Consulting).

In April of 1985, the City of Richmond, Missouri, filed a lawsuit against Saunders-Thalden and others not parties herein. The City alleged in its lawsuit that Saunders-Thalden, an architectural firm, breached its contract with the City to design and supervise construction of a pool and park facility for the City. Among other allegations, the City of Richmond alleged that the design and construction of the swimming pool in question was defective because of the use of PVC piping around the perimeter of the pool as the mode by which to recirculate pool water. The City alleged that the selection of PVC piping was improper because it was placed in fill material and not supported so as to withstand stress from temperature shrinkage and expansion or stress from settlement of the surrounding soil. The City alleged damages from the breaking of the PVC piping and resulting breakage and settlement of the concrete pool deck.

In March of 1990, Saunders-Thalden was granted leave by the trial court to file a Third-Party Petition to bring Berkeley Consulting and Kansas City Testing Laboratories into the City's cause of action as third-party defendants. Saunders-Thalden alleged in its Third-Party Petition against Berkeley Consulting that Berkeley Consulting was negligent and had breached its agreement with Saunders-Thalden to provide mechanical design services for the pool in question. Saunders-Thalden alleged that Berkeley Consulting improperly designed the piping system for the pool using PVC piping without any support for the piping other than the surrounding soil. Saunders-Thalden's action against Kansas City Testing Laboratories was settled.

On July 26, 1990, the third-party action, which is the subject of this appeal, was severed from the underlying cause. Thereafter on March 12, 1991, Berkeley Consulting filed a Motion for Summary Judgment in the third-party action. On March 27, 1991, the trial court granted Berkeley Consulting summary judgment against Saunders-Thalden. Saunders-Thalden appeals the court's order of summary judgment.

In its sole point on appeal, Saunders-Thalden argues that the trial court erred in granting summary judgment on behalf of Berkeley Consulting because the record reflects genuine issues of material fact regarding Berkeley Consulting's negligence and breach of contract. Saunders-Thalden argues in its point relied on that evidence presented through the testimony of Wallace Beasley and Thomas Berkeley presented material issues of fact. Saunders-Thalden argues further in its point relied on that the trial court erred by not reconsidering the order granting summary judgment in light of the testimony of David Crawford and Willis Saylers, as well as the affidavit of counsel for Saunders-Thalden, in regard to an expert opinion that Saunders-Thalden represented that it would obtain from Sam Wolfinbarger.

In addressing a summary judgment, an appellate court must review the record in the light most favorable to the party against whom the trial court entered judgment. Wood & Huston Bank v. Malan, 815 S.W.2d 454, 457 (Mo.App.1991) (citations omitted). The trial court may enter summary judgment where the pleadings, depositions and admissions on file, together with the affidavits, if any, show that no genuine issue of material fact exists and that the law entitles the moving party to a favorable judgment. Id. To overcome a motion for summary judgment, the opposing party may not rest upon mere allegations or denials, but must set forth specific facts that demonstrate the existence of an outstanding genuine issue of material fact. Id. If the opposing party does not so respond, summary judgment, if appropriate, shall be entered against him. Rule 74.04(e).

Saunders-Thalden's first argument in its point relied on is that the deposition testimony of Wallace Beasley and Thomas Berkeley, which Saunders-Thalden presented in opposition to Berkeley Consulting's Motion for Summary Judgment, raised material issues of fact which preclude summary judgment.

In regard to the deposition testimony of Thomas Berkeley, Saunders-Thalden develops nothing in the argument section of its brief to show how this testimony raised material issues of fact as to the negligence or breach of contract of Berkeley Consulting.

When matters referenced as alleged error in a point relied on are not developed in the argument portion of a brief, they are deemed abandoned. Amos v. Altenthal, 645 S.W.2d 220, 228 (Mo.App.1983). Saunders-Thalden's...

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15 cases
  • Glidewell v. S.C. Management, Inc.
    • United States
    • Missouri Court of Appeals
    • June 4, 1996
    ...argument part of Hospital's brief, hence they are deemed abandoned and preserve nothing for appellate review. Saunders-Thalden v. Thomas Berkeley, 825 S.W.2d 385, 387 (Mo.App.1992). In the argument part of its brief, Hospital does carry forward its argument that Plaintiff's attempt to plead......
  • Cox v. Kan. City Chiefs Football Club, Inc.
    • United States
    • Missouri Court of Appeals
    • August 5, 2014
    ...are not developed in the argument portion of a brief, they are deemed abandoned." Saunders-Thalden and Associates, Inc. v. Thomas Berkeley Consulting Engineer, Inc., 825 S.W.2d 385, 387 (Mo. App. W.D. 1992). See also Papineau v. Baier, 901 S.W.2d 190, 192 (Mo. App. W.D. 1995) ("Claims of er......
  • Reese v. Reese, 19204
    • United States
    • Missouri Court of Appeals
    • October 13, 1994
    ...S.W.2d 244, 246 (Mo.App.E.D.1992). See also In re Marriage of Kempf, 825 S.W.2d 667, 668 (Mo.App.S.D.1992); Saunders-Thalden v. Thomas Berkeley, 825 S.W.2d 385, 387 (Mo.App.W.D.1992). Our gratuitous review of the record, however, reveals no abuse of discretion with regard to the matter of r......
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    • May 30, 1995 secret, omission of discussion of this claim in its argument abandons this claim. Saunders-Thalden & Assoc., Inc. v. Thomas Berkeley Consulting Engineer, Inc., 825 S.W.2d 385, 387 (Mo.App.1992). (c) The next issue asserted by the appellants is whether the limitations imposed by the tr......
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