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CONSOLIDATED SERVICE GROUP, LLC, ) ) Plaintiff-Respondent, ) ) MARC BENZ, ) ) Plaintiff-by-assignee-Respondent, ) ) vs. ) No. SD33061 ) JACK MAXEY and RUTH MAXEY, ) Filed: January 21, 2015 ) Defendants/Third-Party Plaintiffs-Appell ants,) ) vs. ) ) MARC BENZ, and TAMKO BUILDING ) PROJECTS, INC., ) ) Third-Party Defendants. )

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY

Honorable David G. Warren, Circuit Judge

AFFIRMED Jack and Ruth Maxey (the “Maxeys”), through their d aughter, Jackie Cernetich, hired Consolidated Service Group, LLC (“Consolidate d”), through its agent representative Marc Benz, (collectively, “Plaintiff s”), to put a new roof on their home.2

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 s ummary judgment to Consolidated under the contract. The Maxeys claim that the court erre d in entering summary judgment on Consolidated’s claim for a breach of a roofing cont ract because Consolidated “failed to plead any facts to support their contention that [C onsolidated] had performed their obligations under the terms of the contract” but on ly pled that the Maxeys had failed to allow Consolidated an opportunity to cure the defec tive 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 al low 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 l aw; therefore, this Court need not defer to the trial court’s determina tion 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 summ ary 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 genui ne issue as to the material facts and that the movant is entitled to j udgment 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 contrad icted by the nonmoving party’s response to the summary judgment mot ion.” Id. Only genuine disputes as to material facts preclude summ ary judgment. Id. at 378

. A material fact in the context of summary judgment is one from which the right to judgment flows. Id.3 A defending party . . . may establish a right to summ ary judgment by demonstrating: (1) facts negating any one of th e 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 t o produce sufficient evidence to allow the trier of fact to find the exi stence of any one” of the elements of the non-movant’s claim; or (3) “that th ere 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 judg ment as a matter of law.” Id. Further, [t]he record below is reviewed in the light most fa vorable to the party against whom summary judgment was entered, and that party is entitled to the benefit of all reasonable inferences from the r ecord. However, facts contained in affidavits or otherwise in support of the party’s motion are accepted as true unless contradicted by the non-mov ing 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 perso nal knowledge and set forth facts that would be admissi ble in evidence. Additionally, the affidavit “shall show affirmative ly that the affiant is competent to testify to the matters stated therein. ” Rule 74.04(e). In addition, the non-movant must support denials with specific references to discovery, exhibits, or affidavits demonstrating a genuine factual issue for trial. Rule 74.04(c)(2), (c)(4). Central Trust and Inv. Co. v. Signalpoint Asset Man agement, LLC , 422 S.W.3d 312, 320 (Mo. banc 2014) (internal citations and quotati ons omitted). Because the Maxeys’ second point claims there are material disputed fac ts, we will commence our discussion with the second point. “[I]f a contractor is prevented from completing th e work on a construction project by the actions of the owners, the owners have breac hed the contract.” Erney v. Freeman , 84 S.W.3d 529, 534 (Mo.App. S.D. 2002). Further, “ [i]f the work has been partially completed at the time of the owners’ actions, the c ontractor is excused from his

1 All rule references are to Missouri Court Rules (2 014), unless otherwise specified.4

contractual obligations and may cease work on the p roject.” Id. It is necessary to determine which, if any, party breached by consider ing whether the contractor’s failure to complete the project, or his ceasing of the work, w as due to actions of the owners that prevented him from completing the work or due to th e actions of the contractor of walking away from the project. Id. The Maxeys admit before this Court “that the Contr act contained a right to cure provision giving [Consolidated] and Benz the right to cure any defects in their performance of the Contract.” 2 They contend that there are three material questi ons of fact for the trier of fact that prevent summary jud gment: (1) whether Consolidated and Benz were afforded an opportunity to cure when the defective shingles were discovered on the first day but other defective shingles were installed on the second day, (2) whether

Benz’s offers were conditional and constituted an a bandonment of the project, and (3) whether the Maxeys could have any faith in Benz’s o ffer to cure. The following undisputed facts that are relevant to the Maxeys’ appeal were

submitted to the trial court: 3 37. Jackie Cernetich e-mailed Mr. Benz on Monday, N ovember 16, 2009[,] at 9:36 AM and stated, “Marc, with regard t o our conversation earlier this morning. I want to confirm that we ar e not agreeing to anything you have verbally presented to us. Also, as I stated, no work is to be done on our home at 412 North Commercial Stre et in Crocker,

2 In their suggestions to the trial court, the Maxey s did not argue that the contract provision did not provide that Consolidated had a “right-to-cure”; instead, t hey argued that they did allow Benz to cure the def ects on the second day of the installation after defective tiles were discovered. The Maxeys contended that “ the uncontroverted facts demonstrate that Plaintiff was given the opportunity to cure the defects found in the Maxey[s’] roof on November 4, 2009 and failed to pr operly do so.”

3 Respondents set forth no facts in the brief nor di d they give any page cites to the summary judgment motion or responses to the summary judgment. Being mindful that though Respondents are not obligated to file a brief, we review an appeal from summary j udgment in the light most favorable to the party ag ainst whom judgment was entered. It would be a far bette r practice to put page cites to the summary judgmen t motion in support of their argument rather than rel ying upon this Court to scour the summary judgment motion for the necessary cites.5 Missouri, unless approved by us. We need Tamko’s p roposal in writing to properly assess their suggested remedy. Jacki [sic ] Cernetich.” See Exhibit 4 , Deposition of Jackie Cernetich, p. 63-67, and see Exhibit 14 , E-mail from Jackie. RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 37 of Plaintiff’s Statement of Uncontroverted Facts. 38. At no point was Jackie acceptable to any terms provided by CSG as to how they were going to fix the roof. See Exhibit 4 , Deposition of Jackie Cernetich, p. 67. RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 38 of Plaintiff’s Statement of Uncontroverted Facts[, and specifically states that Plaintiff know ingly installed a defective roof on Defendants’/Third Party Plaintiff s’ home (see Exhibit 5, Deposition of Marc Benz, Page 60, Line 8 through Page 62, Line 15) and the roof on Defendants’/Third Party Pl aintiffs’ home needs to be replaced in its entirety (see Exhibit 5 , Deposition of Marc Benz, Page 69, Line 21 through Page 71, Line 3)].[ 4 ] 39. At no point did Jackie Cernetich authorize CSG to come back and do work at the house at 412 North Commercial Street in Crocker, Missouri. See Exhibit 4 , Deposition of Jackie Cernetich, p. 67-68. RESPONSE: Defendants/Third Party Plaintiffs admit the allegat ions contained in Paragraph 39 of Plaintiff’s Statement of Uncontroverted Facts[, and specifically states that Plaintiff know ingly installed a defective roof on Defendants’/Third Party Plaintiff s’ home (see Exhibit 5, Deposition of Marc Benz, Page 60, Line 8 through Page 62, Line 15) and the roof on Defendants’/Third Party Pl aintiffs’ home needs to be replaced in its entirety (see Exhibit 5 , Deposition of Marc Benz, Page 69, Line 21 through Page 71, Line 3)]. 40. Jackie Cernetich never asked Mr. Benz to repair the roof. See Exhibit 4 , Deposition of Jackie Cernetich, p. 106. RESPONSE: Defendants/Third Party Plaintiffs admit the allegat ions contained in Paragraph 40 of Plaintiff’s Statement of Uncontroverted Facts[, and specifically states that Plaintiff know ingly installed a defective roof on Defendants’/Third Party Plaintiff s’ home (see Exhibit 5, Deposition of Marc Benz, Page 60, Line 8 through Page 62, Line 15) and the roof on Defendants’/Third Party Pl aintiffs’ home needs to be replaced in its entirety (see Exhibit 5 , Deposition of Marc Benz, Page 69, Line 21 through Page 71, Line 3)].

4 We have set forth Defendants/Third Party Plaintiff s’ responses in their entirety; however, we note th at Rule 74.04(c)(2) does not provide for the material we have enclosed in brackets to be presented in thi s manner.6 41. Mr. Benz called Jackie Cernetich multiple times and Jackie Cernetich was annoyed by the amount of phone calls Mr. Benz made. See Exhibit 4 , Deposition of Jackie Cernetich, p. 108. RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 41 of Plaintiff’s Statement of Uncontroverted Facts. 42. Jackie Cernetich did not respond to some of Mr. Benz’[s] emails to her after the roofing project and it is “probably a ccurate” that she did not respond to most of his emails. Exhibit 4 , Deposition of Jackie Cernetich, p. 107. RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 42 of Plaintiff’s Statement of Uncontroverted Facts. 43. Mr. Benz emailed Jackie on January 14, 2010 att empting to attach a document and stated, “Attached is the document st ating that no additional expense will be charged back to your mot her. Although the roof will be installed on her residence, payment fo r materials and labor will be covered by the vouchers provided by Tamko. There will be no shortcuts taken nor will any compromise be made on material quality in an effort to control costs. I want the same thing for you now that lasts for projected life span. Nothing has changed on my end , I will still work just as hard for you to make sure that the new roof gets installed as I did to get the exposed sections covered immediately after cons truction was complete. Please contact me when you receive this, I need to resolve this immediately. Review the attachment thoroughly and print for your records. I will keep a copy in your file as well. You took a leap of faith when you decided to go with us as your contractor, “No Additional Costs” means no additional costs. I have never went back on my word with any customer, and you are no exception. You trusted us with the original installation, and I have protected your mother[’]s interests completely. At this point I ask that you continue to trust me to p rotect her interests regarding the installation and finances. I know it is not common anymore, but believe it or not, there are still some individ uals in this world who do the right thing and honor the agreements they made, and you were fortunate enough to stumble across one of them. (A nd on a side note, I would appreciate it if I could use you as a referen ce after the new roof is installed) Please call me soon. Thank you, Marc” See Exhibit 15 , E-mail to Jackie, and See Exhibit 4 , Deposition of Jackie Cernetich, p. 89-90, and 104, 106. RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 43 of Plaintiff’s Statement of Uncontroverted Facts. 44. Jackie Cernetich eventually received the attach ed proposal, proposing to complete Tamko Warranty services upon request for the7 property known as: 412 N. Commercial Crocker Mo 63 452, and said “All work to be completed will be covered by manufacture s [sic] warranty. The new roof will be installed on the date requeste d by the homeowners. Vouchers issued from Tamko will be used to provide materials and labor. If for any reason the cost exceeds the voucher amou nts, Consolidated Service Group LLC will cover any additional amounts due. [The homeowners at 412 N. Commercial, Crocker MO will ha ve absolutely no out of pocket expenses for the new roof, labor, mat erials, or any costs related to the roofing project.] The current balan ce due after credits and adjustments is 7871.00 (Seven Thousand Eight Hundre d Seventy One Dollars and 00/100). For your additional security we would request a check in the amount of 4400.00 (Four Thousand Four Hundred Dollars and 00/100) to be made out to [Arrowhead Building S upply]. A check for the remaining balance of 3471.00 (Three Thousand Fo ur Hundred Dollars and 00/100) to be made out to Consolidated Service Group. Lien Waivers for the materials and labor will be issued immediat ely upon receiving payment.” See Exhibit 4 , Deposition of Jackie Cernetich, p. 89-90, and See Exhibit 16 , the proposed attachment. RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 44 of Plaintiff’s Statement of Uncontroverted Facts; however, Defendants/Third Party Plaintiffs s pecifically deny that said provision of the Contract obliges Defenda nts/Third Party Plaintiffs to allow Plaintiff to correct defects in the roof. 45. Jackie Cernetich did not provide written or ver bal notice to remedy any defects. See Exhibit 4, Deposition of Jackie C ernetich, page 44. RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 45 of Plaintiff’s Statement of Uncontroverted Facts. Keeping in mind that the Maxeys claim in their seco nd point that there was a material question of fact whether Consolidated aban doned their obligations under the terms of the contract or whether they were prevente d from fully performing their obligations under the contract, it is clear there w as no issue of fact contended in the summary judgment motions that Consolidated ever aba ndoned its obligations under the

contract. It is clear from the statement of facts that the Maxeys were clear that Consolidated was not allowed to cure any defect and that Consolidated did not abandon the project. The Maxeys’ claim that defective tile s were discovered on the first day and8

on the second day does not constitute a refusal to cure by Consolidated. The third contested “material fact,” whether the Maxeys could have “faith” in Benz’s offer, alleged by the Maxeys, is not a “fact” that is relevant to this contract. Consolidated offered and attempted to offer to cure any defects on many occa sions. The subjective state of mind of the Maxeys is not at issue. The uncontroverted facts supplied by Consolidated a nd the responses by the Maxeys are clear that the Maxeys did not allow Cons olidated to cure any claims about

the defective tiles. It is clear from the record t hat Consolidated offered a complete new roof at no cost to the Maxeys. The Maxeys did not allow Consolidated to use the vouchers for new tiles that had been given to the M axeys by the tile company for the

defective tiles. The trial court did not err in fi nding that there were no issues of material fact that Consolidated was prevented from attemptin g to cure the defects in the roof by the Maxeys. Point II is denied. As for the Maxeys’ first point, that Consolidated d id not plead a claim for a breach of contract, we find no merit to the point. To prove its breach of contract case, Consolidated had to prove, first, that a contract e xisted between plaintiff and defendant. Consolidated did so by stating in its summary judgm ent motion that Jackie Cernetich had the authority to contract to replace the Maxeys’ ro of. Further, the Maxeys admit that a contract existed between Plaintiffs and the Maxeys. Second, Consolidated had to prove that Plaintiffs and the Maxeys had certain obligati ons or duties under the contract. Again, there is no dispute that both parties had obligatio ns and duties under the contract. The Maxeys agreed that they were to pay Consolidated th e sum of $8,626.00 under the contract. The Maxeys agree that Consolidated was t o provide a satisfactory roof for that9

price. In this appeal, the Maxeys do not contend t hat there was no proof of the first element, that a contract existed. Nor do the Maxey s contend that both parties had obligations or duties under the contract, thus the second element was satisfied. Third, Consolidated must have proved that there was a brea ch of the contract. As discussed in Point II, if the contractor was prevented from comp leting the work by the actions of the owners, the owners have breached the contract. The re is no dispute of material fact that the owners prevented the contractor from completing the work, thus, the third element was satisfied. Finally, Consolidated had to prove damages. Plaintiffs supplied proof in the summary judgment motion that the Maxeys had pai d nothing toward the contract and, thus, the contractor was damaged. Thus, each eleme nt for a breach of contract was addressed in the summary judgment motion. To the extent that the Maxeys are arguing that the roof is not yet completed and, therefore, Plaintiffs may not sue for a breach of c ontract, they are mistaken. When the owners prevent the contractor from performing work on the contract, the contractor may either sue on the express contract or on quantum me ruit for the value of the labor and

materials the contractor has furnished. Statler Mfg., Inc. v. Brown , 691 S.W.2d 445, 448-49 (Mo.App. S.D. 1985). The Maxeys admit that there is a right-to-cure provision in the contract, therefore, the refusal to give Plaint iffs an opportunity to cure the defect was an anticipatory breach and grounds for proceeding o n a breach of contract action even if Plaintiffs had not completed their work. It was no t necessary for Plaintiffs to plead or prove facts that they fully performed or that there was substantial performance. Point I is

denied. The judgment is affirmed.10

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