Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Roy v. MBW Constr., Inc.

Court of Appeals of Missouri, Western District, Third Division

February 23, 2016

H. DAVID ROY, Appellant,
v.
MBW CONSTRUCTION, INC., ET AL., Respondents

          Appeal from the Circuit Court of Platte County, Missouri. The Honorable Thomas Clark Fincham, Judge.

         Stephen Nichols, Kansas City, MO, Counsel for Appellant.

         Breahn Vokolek, Liberty, MO, Counsel for Respondents.

         Gary Patton, Liberty, MO, Co-Counsel for Respondents.

         Before Division Three: James Edward Welsh, P.J., Joseph M. Ellis, and Thomas H. Newton, JJ. All concur.

          OPINION

         James Edward Welsh, Presiding Judge

         H. David Roy appeals the circuit court's grant of summary judgment in favor of MBW Construction, Inc., and MBW's president, Keith McConnell,[1] on Roy's petition seeking damages for breach of implied warranty of habitability and fitness, fraudulent concealment, and unlawful merchandising practices and punitive damages for willful violation of a building code. Roy asserts the circuit court erred in granting summary judgment because (1) MBW failed to comply with the requirements of Rule 74.04 by submitting statements of fact that were defective in form and/or not supported by properly certified depositions and trial transcripts, (2) MBW failed to show entitlement to judgment as a matter of law on its affirmative defense of collateral estoppel, and (3) MBW failed to show entitlement to judgment as a matter of law on its affirmative defense of res judicata. We affirm.

          When considering appeals from summary judgments, we view the record in the light most favorable to the party against whom judgment was entered, and we afford that party the benefit of all reasonable inferences. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record established that, on October 3, 2008, Roy and MBW entered into a New Home Sale Contract wherein MBW agreed to build and sell to Roy a new home for the purchase price of $490,000 in the Embassy Park subdivision in Platte County, Missouri. The sale of the real property was closed on June 18, 2009.

         On January 8, 2010, Roy filed a petition for breach of contract and unjust enrichment against MBW[2] in the Circuit Court of Clay County, Missouri. Thereafter, Roy amended his petition twice to include additional claims for breach of express warranty, negligent misrepresentation, and unlawful merchandising practices. In the second amended petition, Roy claimed that MBW charged him excessively for extra items built in the home, failed to give him credits on the final price of the house for amounts he paid separately to subcontractors, failed to timely correct construction defects in a portion of the roof and front door amounting to a breach of the express warranty in the contract, and failed to complete construction of certain items in accordance with the specifications (in particular failed to comply with the specification for the garage).

         On December 9 through December 13, 2013, the Clay County Circuit Court held a trial on Roy's claims. At the close of plaintiff's evidence, the court sustained MBW's motion for directed verdict on the count (Count V) involving unlawful merchandising practices. On January 28, 2014, the circuit court entered its amended judgment finding in favor of MBW on Counts I (breach of contract), II (unjust enrichment), and IV (negligent misrepresentation) of Roy's petition and specifically found that the testimony of Roy was not credible. The court found in favor of Roy on the count for breach of warranty (Count III) and awarded Roy $200 for repair of the front door and $5,000 for repair of the roof. The court found the testimony of MBW's expert as to the necessity and cost of roof repair to be credible.

         After the amended judgment was entered, Roy contacted a contractor and an engineer to render opinions regarding repairs of his roof and garage and also asked the city inspector, who had testified at the trial, to offer additional opinions on the garage extension on his home. On February 26, 2014, Roy filed a motion to amend the judgment and a motion for new trial, alleging that MBW's president, Keith McConnell, gave false testimony regarding the roof and garage floor extension and requesting the court to " open the judgment and take additional testimony" regarding MBW's failure to construct the garage floor extension in accordance with law in that no required footing had been installed and regarding the cost of repair of correcting the nonconforming roof in that the roof rafters had been constructed on " 24 inch centers" rather than " 16 inch centers." MBW filed suggestions in opposition to the motion, denying Roy's allegations regarding McConnell's alleged false testimony and requesting that the court not allow any further evidence on these issues.

         On April 17, 2014, the circuit court heard argument on Roy's motion to amend the judgment and motion for new trial and took the motions under advisement. Pursuant to Rule 78.06, the circuit court denied Roy's motions. On June 6, 2014 Roy filed a notice of appeal of the Clay County case with this court alleging that the circuit court erroneously applied the law and that its judgment was against the weight of the evidence regarding the breach of contract and unjust enrichment claims. Roy also alleged that the circuit court erred in denying his motion for new trial based upon newly discovered evidence demonstrating that McConnell gave deliberately false testimony. This court affirmed the Clay County circuit court's judgment on November 3, 2015. Roy v. MBW Construction, Inc., 477 S.W.3d 678, 2015 WL 6689128, WD77615 (Mo. App. Nov. 3, 2015).

         In the meantime, on October 10, 2014, just a few months after filing his notice of appeal in the Clay County case, Roy filed his petition for damages at issue in this case against MBW and McConnell with the Circuit Court of Platte County seeking damages for breach of implied warranty of habitability and fitness, fraudulent concealment, and unlawful merchandising practices and punitive damages for willful violation of a building code. In the petition, Roy sought damages because the garage floor extension had been installed without a foundation wall and required footing and because the roof rafters had been constructed " 24 inch on center" rather than " 16 inch on center." MBW timely filed an answer and asserted the affirmative defenses of collateral estoppel and res judicata on the basis that the claims contained in Roy's petition in the Platte County case were identical to or arose out of the same transaction or occurrence as those raised in the petition in the Clay County case.

         On February 12, 2015, MBW filed a motion for summary judgment on the basis that there was no genuine dispute as to the existence of each fact necessary to establish its affirmative defenses of collateral estoppel and res judicata. MBW included these documents from the Clay County case as exhibits to its motion for summary judgment: the original, first amended, and second amended petitions for damages, the amended judgment, Roy's motion to amend the judgment and motion for new trial, and the notice of appeal. MBW also included with its motion portions of deposition and/or trial testimony of Roy, McConnell, expert witness Ken Sidorowicz, expert witness Kim Stevermer, expert witness Charles Blair, City Inspector Charles Spahn, and expert witness Dennis Wright, regarding the roof and garage extension on Roy's home. Roy filed suggestions in opposition to MBW's motion for summary judgment, admitting or objecting to each of MBW's statement of uncontroverted ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.