DAVID A. JUNGERS and LEISA JUNGERS, husband and wife, Individually and as Trustees of the DAVID A. JUNGERS TRUST, Dated May 15, 2001, Plaintiffs-Appellants,
WEBSTER ELECTRIC COOPERATIVE, INC., a Missouri Corporation, Defendant-Respondent.
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Jason
Brown, Circuit Judge
JEFFREY W. BATES, J.
David and Leisa Jungers, individually and as trustees of the
David A. Jungers Trust (collectively referred to as the
Jungers), filed suit against Defendant Webster Electric
Cooperative, Inc. (Webster) for damages allegedly caused by
the negligent installation of a transformer in the
Jungers' home. Webster paid to repair the damage. At the
time the alleged damage occurred, the Jungers were in the
process of selling their home under a contract for deed, and
the buyers later backed out of the sale. The Jungers sought
damages from Webster resulting from the lost sale. Webster
moved for summary judgment. The legal basis for the motion
was that the Jungers' damages were limited to cost of
repair. The trial court agreed. The court decided that the
Jungers were barred from recovering the additional damages
they sought, either in the form of diminution of fair market
value or for the loss of the benefit of the bargain from the
contract for deed. Because the Jungers were not entitled to
these additional damages and Webster had already paid the
cost of repair, the trial court entered summary judgment in
two points on appeal, the Jungers contend the trial court
misapplied the law in limiting damages to the cost of repair
because: (1) they were also entitled to recover consequential
damages, which include loss of the benefit of the bargain
under the contract for deed; and (2) alternatively, they were
not precluded from recovering damages for diminution of value
where the repair costs were insufficient to restore the
property to its pre-injury value. Finding no merit to either
point, we affirm.
summary judgment shall be granted "[i]f the motion, the
response, the reply and the sur-reply show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law[.]"
Rule 74.04(c)(6); Schnurbusch v. W. Plains Reg'l
Animal Shelter, 507 S.W.3d 675, 679 (Mo. App.
2017). "Facts come into a summary judgment
record only via Rule 74.04(c)'s
numbered-paragraphs-and-responses framework." Jones
v. Union Pac. R.R. Co., 508 S.W.3d 159, 161 (Mo. App.
2016) (italics in original). Thus, when reviewing a summary
judgment, we review the undisputed material facts established
by the process set forth in Rule 74.04(c). Alvis v.
Morris, 520 S.W.3d 509, 511-12 (Mo. App. 2017). "We
view the record in the light most favorable to the non-moving
party, drawing all inferences in that party's
favor." Progressive Max Ins. Co. v. Hopkins,
531 S.W.3d 649, 651 (Mo. App. 2017); see also Lindsay v.
Mazzio's Corp., 136 S.W.3d 915, 920 (Mo. App. 2004).
defending party, Webster can establish a right to summary
judgment by showing: (1) facts negating any one of the
claimant's elements facts; (2) the claimant, after an
adequate period of discovery, has been unable, and will not
be able, to produce evidence sufficient to allow the trier of
fact to find the existence of any one of the claimant's
elements; or (3) the undisputed facts support each of the
necessary elements of the defending party's properly
pleaded affirmative defense. ITT Commercial Fin. Corp. v.
Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 381 (Mo.
banc 1993). "Each of these three means establishes a
right to judgment as a matter of law." Lindsay,
136 S.W.3d at 920. Because the propriety of summary judgment
is purely an issue of law, we review the grant of a summary
judgment de novo. Id. at 919.
and Procedural Background
material facts are not in dispute. Prior to or during
construction of the Jungers' residence at issue in this
case, Webster installed a pad-mounted electrical transformer
on the property. Webster ran an 800-amp electrical service
from the transformer through underground conduits to the
electrical panel in the basement of the house.
February 2009, the Jungers agreed to sell the property for
$4.45 million under a contract for deed to the Edwards
(hereinafter referred to as the Edwards' contract). In
partial performance of this contract, the Edwards paid $1.2
million to the Jungers at that time, with the balance to be
paid in installments through November 2009. The Edwards took
possession of the property in March 2009.
early May 2009, water accumulated in the transformer and
drained through the conduits into the electrical panel.
Webster paid $4, 780.84 to repair the damage to the property
caused by the May water intrusion. In mid-June 2009, Webster
lengthened the conduits within the transformer and filled
them with silicone caulking to prevent water from entering.
September 2009, the Edwards filed suit against the Jungers to
rescind the Edwards' contract. The suit was later settled,
with the Edwards returning the property to the Jungers, and
the Jungers refunding $1 million of the Edwards' initial
payment to them. The Jungers retained $200, 000 of that
the Jungers sold a portion of the property for $670, 000.
They later separately sold the house and the remaining
property for $2.5 million to the Groves (Groves'
April 2014, the Jungers filed a single-count petition
alleging that Webster negligently installed the transformer,
which permitted water to invade the property. The petition
further alleged that Webster's negligence caused: (1) the
value of the property to diminish by more than $1 million;
and (2) the Jungers to lose the benefit of the bargain they
had made under the Edwards' contract and incur other
February 2018, Webster moved for summary judgment. Webster
argued that its payment of the costs to repair the damage
precluded the Jungers from recovering any additional damages,
including damages for diminution of value or the loss of the
April 2018, the trial court entered an order partially
granting and partially denying summary judgment. With respect
to real property damages, the court granted a partial summary
judgment that ...