865 N.W.2d 155 (S.D. 2015), 27209, Gades v. Meyer Modernizing Co., Inc.

Docket Nº:27209
Citation:865 N.W.2d 155, 2015 SD 42
Opinion Judge:GILBERTSON, Chief Justice
Party Name:BLAIR GADES and LYNN GADES, Plaintiffs and Appellants, v. MEYER MODERNIZING CO., INC., Defendant and Appellee
Attorney:JAMES D. TAYLOR of James D. Taylor, PC, Mitchell, South Dakota, Attorneys for plaintiffs and appellants. MATTHEW D. MURPHY, ROGER A. SUDBECK of Boyce, Greenfield, Pashby & Welk, LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
Judge Panel:GILBERTSON, Chief Justice. ZINTER, SEVERSON, WILBUR and KERN, Justices, concur. ZINTER, SEVERSON, WILBUR and KERN, Justices, concur.
Case Date:June 03, 2015
Court:Supreme Court of South Dakota
 
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Page 155

865 N.W.2d 155 (S.D. 2015)

2015 SD 42

BLAIR GADES and LYNN GADES, Plaintiffs and Appellants,

v.

MEYER MODERNIZING CO., INC., Defendant and Appellee

27209

Supreme Court of South Dakota

June 3, 2015

Considered on Briefs, March 23, 2015

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT DAVISON COUNTY, SOUTH DAKOTA. THE HONORABLE TIMOTHY W. BJORKMAN, Judge.

JAMES D. TAYLOR of James D. Taylor, PC, Mitchell, South Dakota, Attorneys for plaintiffs and appellants.

MATTHEW D. MURPHY, ROGER A. SUDBECK of Boyce, Greenfield, Pashby & Welk, LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellee.

GILBERTSON, Chief Justice. ZINTER, SEVERSON, WILBUR and KERN, Justices, concur.

OPINION

Page 156

GILBERTSON, Chief Justice

[¶1] Blair and Lynn Gades appeal the circuit court's determination that their cause of action was time barred, as well as the court's order granting summary judgment in favor of Meyer Modernizing Co., Inc. (Meyer). The Gadeses assert there are genuine disputes of material fact as to the date of accrual of their cause of action. They also assert Meyer concealed the existence of their cause of action. We affirm.

Facts and Procedural History

[¶2] The facts of this case are largely undisputed.1 In 2000, the Gadeses engaged Enercept, Inc.--a manufacturing company located in Watertown, South Dakota--to design and manufacture the structural insulated panels2 used to construct

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their home in Mitchell, South Dakota. The Gadeses did not hire a general contractor to oversee the actual construction of their home; instead, Blair Gades assumed that role himself. In early 2000, the Gadeses hired Master Builders of Avon--a Minnesota entity--to install the footings, erect the Enercept panels, finish and shingle the roof, install the windows and doors, and apply the house wrap.

[¶3] On April 3, 2000, the Gadeses hired Meyer to install the siding, soffits, and gutters on the home. The estimate offered by Meyer and accepted by the Gadeses did not mention, or include charges for, the installation of flashing around the windows and doors.3 By the time Meyer installed the siding, Master Builders had already installed all of the windows, doors, and house wrap. The home was substantially completed, and the Gadeses moved into the home, by late 2000.

[¶4] As early as spring 2001, but no later than 2002, the Gadeses first noticed water infiltration around window and door openings during rain and wind events.4 This water infiltration resulted in standing water on the window sills and seepage into the door trim and floors. Similar instances of water infiltration have occurred every year since the Gadeses moved into their home, with some years seeing as many as 10 to 12 such incidents. The totality of the Gadeses' asserted injury in this case stems from these water infiltrations, the natures of which have not changed since first manifesting. Since first becoming aware of the problem, the Gadeses have not performed any corrective work on the home.5

[¶5] The Gadeses retained counsel in this matter by April 11, 2005. However, they did not bring suit regarding their water infiltration claim until April 2010. They amended their complaint in 2013 to include the assertion that Meyer concealed the absence of installed flashing. Meyer moved for summary judgment, which the circuit court granted.

[¶6] The Gadeses raise one issue on appeal: Whether there is a genuine dispute of material fact as to the date of accrual of their cause of action.

Standard of Review

[¶7] " In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact

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and showed entitlement to judgment on the merits as a matter of law." Peters v. Great W. Bank, Inc., 2015 S.D. 4, ¶ 5, 859 N.W.2d 618, 621 (quoting Saathoff v. Kuhlman, 2009 S.D. 17, ¶ 11, 763 N.W.2d 800, 804). If the moving party properly supports the motion, the nonmoving party may only avoid summary judgment by " set[ting] forth specific facts showing that there is a genuine issue for trial." SDCL 15-6-56(e). Any material fact asserted by the moving party in support of the motion for summary judgment is deemed admitted by the nonmoving party unless controverted. SDCL 15-6-56(c)(3). We view the evidence " most favorably to the nonmoving party and [resolve] reasonable doubts . . . against the moving party." Peters, 2015 S.D. 4, ¶ 5, 859 N.W.2d at 621 (quoting Saathoff, 2009 S.D. 17, ¶ 11, 763 N.W.2d at 804). " If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper." Id. (quoting Saathoff, 2009 S.D. 17, ¶ 11, 763 N.W.2d at 804).

Analysis and Decision

[¶8] There does not appear to be a genuine dispute as to the applicable period of limitation in this case.6 SDCL 15-2-13(1) provides that " [a]n action upon a contract, obligation, or liability, express or...

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