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Leavitt v. Kakadiaris

Court of Appeals of Missouri, Eastern District, Second Division

December 23, 2014

MICHELLE R. LEAVITT, and KEVIN T. WINKLER, Petitioners/Appellants,
GUS and FATMIRA KAKADIARIS, Defendants/Respondents

Appeal from the Circuit Court of Franklin County. 09AB-CC00368. Honorable David L. Hoven.

FOR APPELLANT: Matthew Scott McBride, Kevin T. Baer, Lashly & Baer, St. Louis, MO.

FOR RESPONDENT: Kevin Albert Richardson, Fatmira Kakadiaris, Zik, Voss, Politte & Richardson, P.C., Washington MO.

Mary K. Hoff, Judge. Sherri B. Sullivan, Presiding Judge and Philip M. Hess, Judge, concur.


Page 236

Mary K. Hoff, Judge

Michelle R. Leavitt (Leavitt) and Kevin T. Winkler (Winkler) (collectively referred to as Buyers) appeal from the trial court's entry of summary judgment in favor of Gus and Fatmira Kakadiaris (collectively referred to as Sellers) on Buyers' claims related to the purchase of a house (the House). We reverse and remand.

Page 237

Factual and Procedural Background

In November 2004, Buyers and Sellers entered into a contract (the Contract) for the sale of the newly-constructed House for the purchase price of $275,000. The Contract included a subsection entitled " INSPECTIONS, DISCLAIMERS, AND WARRANTIES" that stated, " Failure by Buyer to have an inspection within [the inspection period] shall constitute a waiver and acceptance of any conditions an inspection would have disclosed." Buyers did not have a home inspection performed. The Contract also included a subsection entitled " SPECIAL AGREEMENTS," which referred to an attached exhibit, Exhibit A. Exhibit A provided in part that Sellers would provide Buyers with $6,000 of credits toward the purchase of landscaping and appliances, would " initiate and follow through with the repair of a water leak located in the area of the basement below the garage," and would " provide a 1 year builders warranty beginning on the date of closing."

In December 2004, prior to closing on the sale of the House, Buyers conducted a " walk through" of the House. Buyers noticed a leak from the garage was causing water to puddle in the basement below the garage. The Buyers could see streak marks on the walls indicating that the water had run down the walls. Buyers and Sellers specifically addressed the leak in an amendment to the Contract:

Seller[s] will have leak repaired after closing. Work will be done no later than April 1, 2005. Attempt to repair leak from inside garage will be done first. If first attempt is unsuccessful[,] Seller will attempt a fix from outside replacing entire section(s) of concrete pad(s) closest to garage if damaged.

A second amendment to the Contract provided:

Seller[s] will no longer give a credit for landscaping $5,000 and appliances $1,000. Seller[s] to give credit at closing to Buyers of $6,000 for closing costs/pre paids, etc.

Buyers and Sellers agreed that the credit at closing would be used to address " some of the issues [Buyers] had pointed out from [their] walk through." Buyers and Sellers signed the amendments to the Contract and closed the sale of the House on December 30, 2004.

In February 2005, Buyers moved into the House. Leavitt came to the conclusion that the House was a " lemon" because it had a lot of " issues, including structural issues." Buyers had difficulty " trying to reach [Sellers] to get things taken care of," so Buyers made a video of the House to document the problems. Buyers noticed numerous defects to the House that were unrelated to the leak from the garage into the basement. The alleged defects included: water flooding from the street into the front and side yard of the House instead of flowing into the storm drain; an improperly constructed and sinking sidewalk to the House; cracks in the drywall corners of the interior of the House; improperly installed and leaking plumbing in the main floor half bath; an improperly installed countertop and backsplash that pulled away from the wall; an incorrectly anchored kitchen wall that moved in a " floating manner" ; improperly mounted and installed cabinets; an improperly installed electrical system with incorrect, lighter-gauge wiring and reversed polarity in some parts of the House; and an improperly constructed basement or foundation such that large cracks developed in the basement floor and caused mold to form. Buyers asked Sellers to correct the problems, but Sellers did not repair the leak from the garage into the basement or correct any of the other defects.

Page 238

On December 31, 2009, Buyers filed their eight-count petition against Sellers alleging that Sellers had breached the implied warranty of a new home to be fit for its intended purpose; had committed negligence per se; had breached the implied warranties of habitability and construction in a skillful and workmanlike manner; had breached their express agreement to repair the leak from the garage into the basement; had fraudulently misrepresented, negligently misrepresented, and failed to disclose the defects in the House with the intent to deceive, defraud, and induce Buyers to purchase the House; and had violated the Missouri Merchandising Practices Act. Buyers requested the court to award damages or rescind the sale of the House.

Sellers initially filed a motion to dismiss Buyers' petition on the ground that the petition failed to state a cause of action. Following argument, the trial court denied Sellers' motion to dismiss, finding that the petition, on its face, stated a cause of action. The trial court further found that it would consider whether Buyers' claims were barred by the ...

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