Consolidated Service Group, LLC v. Maxey

452 S.W.3d 768, 2015 Mo. App. LEXIS 58, 2015 WL 268866
CourtMissouri Court of Appeals
DecidedJanuary 21, 2015
DocketNo. SD 33061
StatusPublished
Cited by1 cases

This text of 452 S.W.3d 768 (Consolidated Service Group, LLC v. Maxey) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Consolidated Service Group, LLC v. Maxey, 452 S.W.3d 768, 2015 Mo. App. LEXIS 58, 2015 WL 268866 (Mo. Ct. App. 2015).

Opinion

Nancy Steffen Rahmeyer, J.

Jack and Ruth Maxey (the “Maxeys”), through their daughter, Jackie Cernetich, hired Consolidated Service Group, LLC (“Consolidated”), through its agent representative Marc Benz, (collectively, “Plaintiffs”), to put a new roof on their home. Prior to the completion of the job, a dispute arose over defective tiles and the looks of the roof. The Maxeys refused to allow Consolidated to make repairs to the roof and brought suit under the contract. The trial court granted summary judgment to Consolidated under the contract. The Maxeys claim that the court erred in entering summary judgment on Consolidated’s claim for a breach of a roofing contract because Consolidated “failed to plead any facts to support their contention that [Consolidated] had performed their obligations under the terms of the contract” but only pled that the Maxeys had failed to allow Consolidated an opportunity to cure the defective roof as was provided in the contract. The Maxeys also claim trial court error because there is a material question of fact whether Consolidated and Benz abandoned their obligations under the terms of the contract or whether they were prevented from fully performing their obligations under the contract and whether the Maxeys were required to allow Benz an attempt to cure any default. We find no error and affirm the judgment.

Our standard of review was set forth in Goerlitz v. City of Maryville, 333 S.W.3d 450, 452-53 (Mo. banc 2011):

The trial court makes its decision to grant summary judgment based on the pleadings, record submitted, and the law; therefore, this Court need not defer to the trial court’s determination and reviews the grant of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993); Rule 74.04. In reviewing the decision to grant summary judgment, this Court applies the same criteria as the trial court in determining whether summary judgment was proper. Id. Summary judgment is only proper if the moving party establishes that there is no genuine issue as to the material facts and that the movant is entitled to judgment as a matter of law. Id. The facts contained in affidavits or otherwise in support of a party’s motion are accepted “as true unless contradicted by the non-moving party’s response to the summary judgment motion.” Id. Only genuine disputes as to material facts preclude summary judgment. Id. at 378. A material fact in the context of summary judgment is [770]*770one from which the right to judgment flows. Id.
A defending party ... may establish a right to summary judgment by demonstrating: (1) facts negating any one of the elements of the non-movant’s claim; (2) “that the non-movant, after an adequate period for discovery, has not been able and will not be able to produce sufficient evidence to’allow the trier of fact to find the existence of any one” of the elements of the non-movant’s claim; or (3) “that there is no genuine dispute as to the existence of the facts necessary to support movant’s properly pleaded affirmative defense.” Id. at 381. Each of these three methods individually “establishes the right to judgment as a matter of law.” Id.

Further,

[t]he record below is reviewed in the light most favorable to the party against whom summary judgment was entered, and that party is entitled to the benefit of all reasonable inferences from the record. However, facts contained in affidavits or otherwise in support of the party’s motion are accepted as true unless contradicted by the non-moving party’s response to the summary judgment motion. However, an appellate court reviewing the ruling of a circuit court is bound to consider the forms of the affidavits supporting and opposing summary judgment in accord with Rule 74.04(e),[1] which requires the affidavits to be made on personal knowledge and set forth facts that would be admissible in evidence. Additionally, the affidavit “shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Rule 74.04(e). In addition, the non-movant must support denials with specific references to discovery, exhibits, or affidavits demonstrating a genuine factual issue for trial. Rule 74.04(c)(2), (c)(4).

Central Trust and Inv. Co. v. Signalpoint Asset Management, LLC, 422 S.W.3d 312, 320 (Mo. banc 2014) (internal citations and quotations omitted). Because the Maxeys’ second point claims there are material disputed facts, we will commence our discussion with the second point.

“[I]f a contractor is prevented from completing the work on a construction project by the actions of the owners, the owners have breached the contract.” Erney v. Freeman, 84 S.W.3d 529, 534 (Mo.App.S.D.2002). Further, “[i]f the work has been partially completed at the time of the owners’ actions, the contractor is excused from his contractual obligations and may cease work on the project.” Id. It is necessary to determine which, if any, party breached by considering whether the contractor’s failure to complete the project, or his ceasing of the work, was due to actions of the owners that prevented him from completing the work or due to the actions of the contractor of walking away from the project. Id.

The Maxeys admit before this Court “that the Contract contained a right to cure provision giving [Consolidated] and Benz the right to cure any defects in their performance of the Contract.”2 They contend that there are three material ques[771]*771tions of fact for the trier of fact that prevent summary judgment: (1) whether Consolidated and Benz were afforded an' opportunity to cure when the defective shingles were discovered on the first day but other defective shingles were installed on the second day, (2) whether Benz’s offers were conditional and constituted an abandonment of the project, and (3) whether the Maxeys could have any faith in Benz’s offer to cure.

The following undisputed facts that are relevant to the Maxeys’ appeal were submitted to the trial court:3

37. Jackie Cernetich e-mailed Mr. Benz on Monday, November 16, 2009[,] at 9:36 AM and stated, “Marc, with regard to our conversation earlier this morning. I want to confirm that we are not agreeing to anything you have verbally presented to us. Also, as I stated, no work is to be done on our home at 412 North Commercial Street in Crock-er, Missouri, unless approved by us. We need Tamko’s proposal in writing to properly assess their suggested remedy. Jacki [sic] Cernetich.” See Exhibit 4, Deposition of Jackie Cernetich, p. 63-67, and see Exhibit 14, E-mail from Jackie.
RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 37 of Plaintiffs Statement of Uncontroverted Facts.
38. At no point was Jackie acceptable to any terms provided by GSG as to how they were going to fix the roof. See Exhibit 4, Deposition of Jackie Cerne-tich, p. 67.

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Cite This Page — Counsel Stack

Bluebook (online)
452 S.W.3d 768, 2015 Mo. App. LEXIS 58, 2015 WL 268866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/consolidated-service-group-llc-v-maxey-moctapp-2015.