Schaffer v. Property Evaluations, Inc.

• Decision Date: 23 March 1993
• Docket Number: No. 62102
• Citation: Schaffer v. Property Evaluations, Inc., 854 S.W.2d 493 (Mo. App. 1993)
• Parties: Eric S. SCHAFFER and Connie R. Schaffer, Plaintiffs/Respondents, v. PROPERTY EVALUATIONS, INC., and Joseph W. Roberson, Defendants/Appellants.
• Court: Missouri Court of Appeals

Page 493

854 S.W.2d 493

Eric S. SCHAFFER and Connie R. Schaffer, Plaintiffs/Respondents, v. PROPERTY EVALUATIONS, INC., and Joseph W. Roberson Defendants/Appellants.

No. 62102.

Missouri Court of Appeals,

Eastern District,

Division One.

March 23, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 3, 1993.

Application to Transfer Denied June 29, 1993.

Robert J. Schaeffer, Schaeffer, Kruse & Piatcheck, Clayton, for defendants/appellants.

Mark M. Wenner, Clayton, for plaintiffs/respondents.

REINHARD, Judge.

Plaintiffs obtained a $15,000 judgment against defendants upon a jury verdict for breach of a home inspection contract. On appeal, defendants claim that pursuant to the written contract plaintiffs' damages were limited to the $153 inspection fee. We affirm.

The evidence reveals that on November 14, 1989, plaintiffs entered into a contract to purchase a house at 500 Willow in Kirkwood, Missouri. Their real estate agent recommended that the house be inspected and plaintiffs subsequently contacted defendant Property Evaluations, Inc. Property Evaluations sent plaintiffs a letter which included a "standard inspection order agreement". The letter instructed plaintiffs to review the agreement and stated that it was in the process of scheduling the inspection.

The "inspection order agreement" was a one page form printed in small type. It stated that the inspection would cost $153 and provided space at the bottom of the form for signatures of "client" and "company representative". The document further provided in relevant part:

4. The Client acknowledges that this inspection and the report reflect only those conditions which could be ascertained through limited inspection and observation at the time of the inspection. Consequently, due to the complexity and the number of elements inspected in a limited time period and the fact that all value judgments are made without the benefit of exhaustive evaluation, the Company cannot represent that all present or potential deficiencies will be identified or reported on or that the inspector will be infallible in his judgments. Furthermore, neither this home inspection nor report is intended to be or relied upon as an insurance policy or guarantee, expressed or implied, against undisclosed or future defects. The Company's liability for any Client post-inspection claims is limited to a maximum of the inspection fee paid, unless an inspection warranty is available and has been purchased by the Client. If additional or alternative protection is desired, companies providing this type of insurance should be contacted. Should a claim or dispute arise regarding any aspects of this inspection, client will promptly notify the Company in writing and prior to any corrective or remedial action, in order to provide the company the option to assess the reported condition. Failure by the Client to properly provide this notification and access will release the Company of any and all liability concerning this inspection. (Emphasis ours).

On November 21, 1989, defendant Joseph Roberson, an employee of Property Evaluations, inspected the house. Following the inspection, Mr. Roberson prepared a report which he sent to plaintiffs. The report stated that the "[c]oncrete foundation walls [are] in overall satisfactory structural condition."

Accompanying the report was an offer for plaintiffs to purchase a "Limited Warranty" which Property Evaluations indicated would provide protection "against unexpected repair or replacement expense for a 12 month period commencing with the transfer of title to [plaintiffs]." The cost of the warranty was $153 and its terms limited recovery for structural defects to "$1,000 per occurrence". Plaintiffs did not purchase it.

In April, 1990, plaintiffs, concerned about an inordinate amount of water leakage in the basement, hired Eugene Brucker, a geotechnical engineer, to perform an inspection of the basement foundation. At trial, Mr. Brucker testified that the north and east walls of the house were moving inward. He stated that the walls would continue to move inward until they eventually failed and that the cracks in the walls would lead to flooding of the basement. He further testified that these walls should be replaced and that the cost would be approximately $10,000 for the north wall and between $10,000 and $15,000 for the east wall.

In their sole point on appeal, defendants contend that the trial court erred in refusing Instruction B which would have limited plaintiffs' recovery to $153.

We find this case similar in many respects to our case of Weindel v. DeSoto Rural Fire Protection Assn., Inc., 765 S.W.2d 712 (Mo.App.1989). In Weindel, plaintiffs had purchased a fire tag from defendant for a $12.50 fee. Id. at 713. The receipt for the tag stated, in relevant part:

[Defendant] shall not be subject to suit by any individual acquiring any tag, nor by anyone seeking to recover pursuant to said tag holders claims or rights.

* * * * * * It is further agreed that neither second party, or any party claiming any rights under this document shall have the...