Anderson v. Bauer

• Decision Date: 19 April 1984
• Docket Number: 83-130 and 83-137,Nos. 83-129,s. 83-129
• Citation: 681 P.2d 1316
• Parties: Jimmy L. ANDERSON, Carol A. Anderson, and Heritage Village Development, Inc., a Wyoming Corporation, Appellants (Defendants and Third-Party Plaintiffs), v. Raymond BAUER and Diana Bauer, husband and wife; Russell I. Bell and Marilee Bell, husband and wife; Robert E. Jauch and Kathy L. Jauch, husband and wife; Raymond M. Ricci and Bernadette Ricci, husband and wife; Phillip W. Patrick and Diana Patrick, husband and wife; Donnie R. Haney and Sandra Haney, husband and wife; Nona Gail Anderson and Beula Hawley; Leo R. Hendricks and Betty L. Hendricks, husband and wife, Appellees (Plaintiffs), and PLAINS ENGINEERING, INC., Appellee (Third-Party Defendant). Steve Beilgard and Heritage Homes, Inc., Appellants (Third-Party Plaintiffs), v. Donnie R. HANEY and Sandra Haney, husband and wife; Nona Gail Anderson and Beula Hawley; Leo R. Hendricks and Betty L. Hendricks, husband and wife; Raymond M. Ricci and Bernadette Ricci, husband and wife; and Phillip W. Patrick and Diana Patrick, husband and wife, Appellees (Plaintiffs), and PLAINS ENGINEERING, INC., Appellee (Third-Party Defendant). Beula Hawley and Nona Gail Anderson, Donnie R. Haney and Sandra Haney, husband and wife, Leo R. Hendricks and Betty L. Hendricks, husband and wife; Russell I. Bell and Marilee Bell, husband and wife, Robert E. Jauch and Kathy Jauch, husband and wife, Phillip W. Patrick and Diana Patrick, husband and wife, Raymond Bauer and Diana Bauer, husband and wife, Raymond M. Ricci and Bernadette Ricci, husband and wife, Appellants (Plaintiffs), v. Jimmy L. ANDERSON, Carol A. Anderson, Heritage Village Development Company, Inc., The Campbell County Board of Commissioners, Campbell County, Wyoming, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1316

681 P.2d 1316

Jimmy L. ANDERSON, Carol A. Anderson, and Heritage Village Development, Inc., a Wyoming Corporation, Appellants (Defendants and Third-Party Plaintiffs), v. Raymond BAUER and Diana Bauer, husband and wife; Russell I. Bell and Marilee Bell, husband and wife; Robert E. Jauch and Kathy L. Jauch, husband and wife; Raymond M. Ricci and Bernadette Ricci, husband and wife; Phillip W. Patrick and Diana Patrick, husband and wife; Donnie R. Haney and Sandra Haney, husband and wife; Nona Gail Anderson and Beula Hawley; Leo R. Hendricks and Betty L. Hendricks, husband and wife, Appellees (Plaintiffs) and PLAINS ENGINEERING, INC., Appellee (Third-Party Defendant) Steve Beilgard and Heritage Homes, Inc., Appellants (Third-Party Plaintiffs), v. Donnie R. HANEY and Sandra Haney, husband and wife; Nona Gail Anderson and Beula Hawley; Leo R. Hendricks and Betty L. Hendricks, husband and wife; Raymond M. Ricci and Bernadette Ricci, husband and wife; and Phillip W. Patrick and Diana Patrick, husband and wife, Appellees (Plaintiffs) and PLAINS ENGINEERING, INC., Appellee (Third-Party Defendant) Beula Hawley and Nona Gail Anderson, Donnie R. Haney and Sandra Haney, husband and wife, Leo R. Hendricks and Betty L. Hendricks, husband and wife; Russell I. Bell and Marilee Bell, husband and wife, Robert E. Jauch and Kathy Jauch, husband and wife, Phillip W. Patrick and Diana Patrick, husband and wife, Raymond Bauer and Diana Bauer, husband and wife, Raymond M. Ricci and Bernadette Ricci, husband and wife, Appellants (Plaintiffs), v. Jimmy L. ANDERSON, Carol A. Anderson, Heritage Village Development Company, Inc., The Campbell County Board of Commissioners, Campbell County, Wyoming, Appellees (Defendants).

Nos. 83-129, 83-130 and 83-137.

Supreme Court of Wyoming.

April 19, 1984.

Franklin J. Wallahan (argued), Rapid City, S.D., and Leslie W. Hawkey, Jr., Gillette, for Developer Andersons and Heritage Village Development Company, Inc.

Dwight F. Hurich, Gillette, for builder Beilgard and Heritage Homes, Inc. submitting on brief.

Rex O. Arney, Sheridan, for Campbell County Board of Commissioners.

H.W. Rasmussen and Fred R. Dollison (argued), Badley & Rasmussen, P.C., Sheridan, for homeowners.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN, and CARDINE, JJ.

CARDINE, Justice.

Eight homeowners brought separate actions in negligence and breach of warranty against the land developer, builders, and Campbell County to recover damages to their houses from seepage of water. These appeals are from a judgment in favor of the county and against the developer and builders.

We will affirm in part and reverse in part.

The issues for our determination, as stated by the parties are as follows:

1. Were plaintiff homeowners' claims barred by a statute of limitations?

2. Were the builders and developer liable for damages to the plaintiffs' homes on the theories of negligence and breach of implied warranty?

3. Was the proper measure of damages applied in determining the plaintiffs' loss under the circumstances?

Eight plaintiff homeowners brought eight separate lawsuits to recover damage from water seeping into their basements. The defendants were: the developer of the subdivision in which the homes were built, Jimmy L. Anderson, Carol A. Anderson, and Heritage Village Development Company, Inc.; the builders of the homes: D.W. Birks, Kenneth Hoffner, Steve Beilgard and Heritage Homes, Inc.; and Campbell County, Wyoming. The eight separate actions were consolidated for trial. During trial, builder D.W. Birks settled with plaintiff Bauer, and Kenneth Hoffner settled with plaintiffs Bell and Jauch. At the conclusion of plaintiffs' cases, an order of dismissal as to Campbell County was entered in all cases. After trial, the court entered judgments in favor of the plaintiffs and against both the developer and builders. The developer has appealed. The builders, Beilgard and Heritage Homes, Inc. have appealed. The plaintiffs have appealed and are both appellants and appellees. For the sake of clarity, we will refer to appellants Andersons and Heritage Village Development Company, Inc. as developer, appellants Beilgard and Heritage Homes, Inc. as builder, appellees-appellants-plaintiffs as homeowners, except where reference to a specific homeowner is necessary, and appellee Campbell County as County.

At the outset, when considering the facts and evidence upon appeal, we reiterate that

"[w]e assume that evidence in favor of the successful party is true, disregarding entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may be reasonably and fairly drawn from it. 'So long as there exists substantial evidence supporting the trier of fact's determination, we will not second guess it on appeal.' * * * " Richardson v. Green, Wyo., 644 P.2d 778, 779 (1982).

In 1974, Anderson purchased eighty acres of land near Gillette, Wyoming for the purpose of subdivision and development. A corporation, Heritage Village Development Company, Inc., was formed with the Andersons being the sole stockholders, officers and employees for the corporation. Andersons employed an engineering firm to study, lay out and subdivide the land, prepare and file required plats, comply with applicable rules and regulations for subdivisions and obtain final approval of the County for the subdivision. The plat and subdivision was approved July 1975; there was later an amendment to the plat and it was reapproved August 1976. Andersons began selling lots. The engineering firm then advised that a soils test was needed to secure FHA approval, and a soils test and report were done by Northern Testing Laboratories. The soils test report described a potential water table problem.

In 1977 and early 1978, each of the builders began purchasing lots for building homes, taking title by warranty deed. The eight houses, all with basements, involved in this litigation were constructed by the builders upon these lots and then sold and conveyed by warranty deed to the respective plaintiffs. Generally, within a few months after purchase, each of the plaintiffs experienced water seepage into their basements causing damage to property. They complained to the building contractor. A sump pump was installed, but that proved inadequate as a solution to the water problems. The seepage worsened, and this litigation ensued.

Upon completion of the consolidated trials, the court entered judgment in favor of each homeowner against the developer and builder finding each equally at fault. The homeowners were held to be without fault. Campbell County had previously been dismissed from the litigation at the close of plaintiffs' case.

I BAR OF THE STATUTE OF LIMITATIONS

The time within which the homeowners can bring suit to recover this kind of damage for negligence is four years after their cause of action accrues. ¹ The following table summarizes the critical dates relating to timeliness of commencing suit against the developer, builder, and Campbell County:

The trial court in ruling on motions late in the day at the end of the fourth day of trial, stated:

"THE COURT: The Court will deny all the motions with the exceptions of the one based on the Statute of Limitation as to the three plaintiffs. Grant that on the basis of the Statute of Limitations."

and, after additional argument:

"MR. SCOTT: It's my--getting awfully late.

"THE COURT: Well, gentlemen, I'm going to reverse myself, I'm going to deny all motions."

When court resumed the next morning, the court stated:

"The Court first wishes to make an announcement and clarification of its ruling last evening in regards to the dismissal of the county * * *. The Court feels that the county * * * was acting in either a quasi legislative or judicial manner and [in] giving its approval to the subdivision and * * * [t]he [court] has not reversed itself on the statute of limitations and that was the sole grounds for the removal of the county."

The statute of limitations begins to run when the injured party knows or reasonably ought to know that some damage has resulted from the wrongful act. That is true although the damage is slight, continues to occur, or additional damage caused by the same wrongful act may result in the future. Duke v. Housen, Wyo., 589 P.2d 334 (1979); ABC Builders, Inc. v. Phillips, Wyo., 632 P.2d 925 (1981). In the instant case, the water seepage first noted generally caused damage either immediately or within a few days to the basement foundations, walls, sheetrock, carpets, furniture, items stored, or personal property. Each homeowner's cause of action accrued on or about the date water seepage was first noticed and damage occurred, and unless suit was filed within the ensuing four years, it was barred.

The summary of critical dates indicates that the first water seepage and resulting damage to the various homeowners occurred from April 1978 through July 1978. All of the homeowners first asserted claims against Campbell County October 18, 1982, which was more than four years after their action had accrued. Their respective actions, therefore, were barred by the running of the period of limitation; and the court correctly entered its order of dismissal as to Campbell County.

The trial court stated that its basis for granting the County's motion to dismiss was that the statute of limitations had run, governmental immunity was a bar to these suits, the actions of the County in approving the plat and subdivision were quasi-judicial in nature and therefore did not give rise to liability upon the County, and it was not the intent of the legislative enactments pertaining to subdivisions to create liability upon the County in acting pursuant to those statutes. Having concluded that the homeowners' cases against the County were barred because not filed within the limitation period for such cases, we need not consider the propriety of...