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Jungers v. Webster Electric Cooperative, Inc.

Court of Appeals of Missouri, Southern District

June 12, 2019

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.

          APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Jason Brown, Circuit Judge

          JEFFREY W. BATES, J.

         Plaintiffs 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 Webster's favor.

         Presenting 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.

         Standard of Review

         A 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).[1] "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).

         As a 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.

         Factual and Procedural Background

         The 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.

         In 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.

          By 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.

         In September 2009, the Edwards filed suit against the Jungers to rescind the Edwards' contract.[2] 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 payment.

         Thereafter, 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' contract).

         In 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 incidental damages.

         In 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 Edwards' contract.

          In 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 ...

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