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08/02/83 DAVID P. ARST AND MAXINE E. ARST v. MAX

August 2, 1983

DAVID P. ARST AND MAXINE E. ARST, HIS WIFE, PLAINTIFF-APPELLANTS,
v.
MAX BARKEN, INC., DEFENDANT-RESPONDENT, THIRD-PARTY PLAINTIFF,
v.
REITZ & JENS, INC., AND THE FREEMAN CONTRACTING COMPANY, INC., THIRD-PARTY DEFENDANTS



From the Circuit Court of St. Louis County; Civil Appeal; Judge Richard T. Enright.

Before Dowd, C.j., Simon, Gaertner, JJ.

The opinion of the court was delivered by: Dowd

On March 5, 1981, plaintiff-appellants David and Maxine Arst brought suit against respondent Max Barken, Inc. for breach of express and implied warranties in the construction of their residence, and for breach of a subsequent agreement to repair. Respondent filed a third party petition against Reitz & Jens, Inc. and Freeman Contracting Company. On May 13, 1982, the trial court sustained respondent's motion for summary judgment and this appeal followed. We affirm.

Before this court, respondent filed a motion to dismiss appellants' appeal on the grounds that appellants' statement of the facts is not a fair and concise statement as required by Rule 84.04(c). Although appellants' statement of facts did omit certain facts, the dismissal of an appeal is a drastic remedy and we find that it would be inappropriate here. Motion denied.

Appellants entered into a contract with respondent on June 20, 1969, for the purchase of a residence which was constructed by respondent. Within one month after occupying their residence, appellants discovered cracks and shifting of the foundation and on August 29, 1969, appellants gave respondent notice of this condition. After such notification, respondent's agents made numerous verbal assurances that the cracks would be repaired. On October 28, 1971, and again on January 21, 1974, appellants notified respondent that despite its repair of the cracks, leaks continued and additional cracks appeared.

Respondent's employees inspected the residence in 1974 and again in 1975. In 1976, respondent notified appellants that based upon examinations by Reitz & Jens, respondent's soil engineers, the cracking was a result of underlying soil conditions which caused the vertical settling of the residence. Respondent then contracted with Freeman Contracting Company to underpin the foundation and patch the cracks in appellants' residence. Nevertheless, more cracks appeared after the foundation was underpinned.

Respondent continued to monitor the problem but did nothing further to remedy the condition. In a letter dated August 7, 1979, respondent's president stated to appellants, "I do not feel that Max Barken, Inc. has any further responsibility to you in connection with the construction of your home."

Appellants thereafter retained two soil engineering firms which inspected the premises and concluded that the residence was not settling vertically, but rather was sliding horizontally down the slope because respondent had rechanneled an adjacent creek without stabilizing the slope prior to construction.

In their brief, appellants relied on four points. All four of these points, however, deal with the question of whether the trial court erred in sustaining respondent's motion for summary judgment on the grounds that the action was barred by the statute of limitations.

On review of a grant of a motion for summary judgment, parties against whom summary judgment was entered must be accorded every favorable intendment of the record. Thompson v. Parker, 608 S.W.2d 415, 416 (Mo. banc 1980).

In their petition, appellants alleged that respondent expressly and impliedly warranted that the residence it sold to appellants was constructed in a good and workmanlike manner and that respondent breached these warranties when it constructed the residence on a slope which was unstable. Such actions are governed by a five year statute of limitations. § 516.120 RSMo 1978; Ruhling v. Robert Dawes Construction Company, 610 S.W.2d 403, 405 (Mo.App. 1980).

Under § 516.100 RSMo 1978, the five year statute of limitations does not begin to run until the cause of action accrues, which is defined as follows:

§ 516.100 RSMo 1978.

Appellants contend that their damages were not ascertainable until after April, 1976, when "additional movement occurred," and "only then could appellants have maintained an action for the full ...


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