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Consol. Serv. Group, LLC v. Maxey

Court of Appeals of Missouri, Southern District, Second Division

January 21, 2015

CONSOLIDATED SERVICE GROUP, LLC, Plaintiff-Respondent, MARC BENZ, Plaintiff-by-assignee-Respondent,
v.
JACK MAXEY and RUTH MAXEY, Defendants/Third-Party Plaintiffs-Appellants,
v.
MARC BENZ, and TAMKO BUILDING PROJECTS, INC., Third-Party Defendants

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY. Honorable David G. Warren, Circuit Judge.

For Appellants: Gerard " Jay" Harms, Jr., of Osage Beach, Missouri.

For Respondents: Matthew J. Gould of Hillsboro, MO.

Nancy Steffen Rahmeyer, P.J. -- Opinion Author, Gary W. Lynch, J. - Concurs, Don E. Burrell, J. -- Concurs.

OPINION

Nancy Steffen Rahmeyer, P.J.

Page 769

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 nonmoving 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

Page 770

one 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 nonmovant'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." ...

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