Cleveland v. BDL Enterprises, Inc., No. 22409
| Decision Date | 14 May 2003 |
| Docket Number | No. 22409, No. 22467. |
| Citation | 663 N.W.2d 212,2003 SD 54 |
| Parties | Richard H. CLEVELAND and Carolyn Cleveland, Larry Anderson and Carol Anderson, Bob Tridle and John Tridle, Jim Mattson, Roberta Raines, Dan Regan and Trudy Regan, Michael Donner and Darlene Donner, William Boyer and Roxanne Boyer, Ed Odson and Ellen Odson, Don Sanders and Patricia Sanders, Debra Bieber, Roberta Olson, Brian Nelson and Melody Nelson, Ramona Hickens, Suntina Marta, and Lorraine Wiswell, Dale Larson and Renee Larson, Brian Meade, Norman Hertel and Mary Lou Hertel, Thomas Morey and Donna Morey, Gina Crain, Glen Bauernfeind, Ronald Manseau, O.A. Henderson, Jr., and Sara Jane Henderson, individually and on behalf of Mile High Apartments, a partnership, Plaintiffs, v. City of Lead, a municipal corporation, Defendant, BDL ENTERPRISES, INC., Defendant and Appellant, FMG, Inc., Defendant and Appellee. Richard H. Cleveland and Carolyn Cleveland, Larry Anderson and Carol Anderson, Bob Tridle and John Tridle, Jim Mattson, Roberta Raines, Dan Regan and Trudy Regan, Michael Donner and Darlene Donner, William Boyer and Roxanne Boyer, Ed Odson and Ellen Odson, Don Sanders and Patricia Sanders, Debra Bieber, Roberta Olson, Brian Nelson and Melody Nelson, Ramona Hickens, Suntina Marta, and Lorraine Wiswell, Dale Larson and Renee Larson, Brian Meade, Norman Hertel and Mary Lou Hertel, Thomas Morey and Donna Morey, Gina Crain, Glen Bauernfeind, Ronald Manseau, O.A. Henderson, Jr., and Sara Jane Henderson, individually and on behalf of Mile High Apartments, a partnership, Plaintiffs and Appellants, v. City of Lead, a municipal corporation, Defendant, BDL Enterprises, Inc., Defendant, and FMG, Inc., Defendant and Appellee. |
| Court | South Dakota Supreme Court |
Kenneth E. Barker, Michael P. Reynolds, John W. Burke of Barker, Wilson, Reynolds & Burke, Belle Fourche, for plaintiffs and appellants.
Jerry D. Johnson of Banks, Johnson, Colbath & Kerr, Rapid City, for defendant and appellant BDL.
Gary D. Jensen of Beardsley, Jensen and Von Wald, Prof. LLC, Rapid City, for defendant and appellee FMG.
[¶ 1.] This dispute arises over the construction of the Twin City Mall in Lead, South Dakota. In constructing the Mall, BDL, the owner of the Mall, removed part of a slope of a hill, which provided lateral support to the Homeowners' property. The Homeowners brought suit against BDL and FMG, the soil engineers, alleging that removal of the slope caused ground movement, which in turn caused damage to their property. BDL filed a cross-claim against FMG for indemnity or contribution. The trial court granted summary judgment to FMG on both the Homeowners' claims and BDL's cross-claim. We affirm.
[¶ 2.] In 1985, BDL began making plans for the construction of the Twin City Mall in Lead, South Dakota. The chosen site of the mall was located at the bottom of a steep slope. Behind the mall, resting on the hillside, is the Bender Park Neighborhood, which consists of First, Second and Third Streets. The construction of the mall entailed cutting into the slope. Therefore, BDL hired FMG to perform a geotechnical exploration of the proposed site to determine whether it was safe to proceed.
[¶ 3.] In a report to BDL, FMG opined that "the configuration's stability is marginal, although theoretically safe from mass failure." Soon after, construction of the Mall began and was substantially completed by May 1, 1987. As early as the fall of 1986, a Bender Park resident noticed a crack on the ground of Third Street. Thereafter, many other problems were reported in the Bender Park Neighborhood, such as large cracks in foundation walls and movement of homes. There were also sewer and water main breaks in the area.
[¶ 4.] The Third Street Committee was then formed by the city. This Committee was organized to address concerns and monitor the situation. The City of Lead, BDL, and the homeowners had representatives on the Committee. At the meeting held on July 23, 1987, a representative from FMG, Rick Baker, was present to answer questions concerning the cause of the ground movement. Baker stated that "it was his opinion that the cut on the hillside below First Street was not the cause of the movement in the area."
[¶ 5.] The Committee publicly met four times and several homeowners remained convinced that the construction of the Mall caused the ground movement. However, after the city's monitoring of the movement through September of 1990 revealed nothing significant, the monitoring was discontinued.
[¶ 6.] The winter of 1993 and spring of 1994 brought with them a huge amount of rainfall and snow. Due to the extreme amount of melting and moisture, drainage increased and the hill began to move. The Mall also showed a significant amount of movement. BDL retained GME Consultants of Minneapolis to investigate the cause of the slope instability and the movement of the Mall.
[¶ 7.] GME advised that the Mall be evacuated and that remedial measures be put in place. The remedial measures included digging long and deep trenches along the Mall's parking lot, which was below First Street and up on Third Street. The trenches were completed in 1996 at a cost of nearly $4,000,000. It is disputed by the parties whether movement continues.
[¶ 8.] Thereafter, in 1998, thirty-three homeowners in the Bender Park Neighborhood filed suit against BDL and FMG. The Plaintiffs asserted six counts of wrongdoing by BDL and FMG for their part in the development, design, and construction of the Twin City Mall. Essentially, the Plaintiffs allege that BDL and FMG failed to design, engineer, and construct the Mall in such a way that would have prevented removal of the slope of the hill. They allege that this hill provided lateral support for their real property located on the hillside behind the Mall. Defendant BDL filed a cross-claim against Defendant FMG seeking indemnity or contribution. After four years of discovery, BDL and FMG moved for summary judgment.
[¶ 9.] After hearing oral arguments on the motion, the trial court denied summary judgment to BDL but granted summary judgment to FMG on Homeowners' claims and Defendant BDL's cross-claims. The trial court found that Homeowners' claims against FMG were barred under the ten-year limitation period prescribed in SDCL 15-2A-3. Likewise, BDL's cross-claim against FMG was found to be barred under the ten-year limitation period found in SDCL 15-2A-3. Since that time, the Plaintiff Homeowners and BDL have entered into a settlement. Further, BDL has assigned its claims against FMG to the Plaintiff Homeowners. FMG has filed an objection to this assignment. However, neither the assignment nor the objection to the assignment changes the substantive issues involved in this appeal.
[¶ 10.] On this appeal, we are asked to review the following:
[¶ 11.] According to Holzer v. Dakota Speedway, Inc., 2000 SD 65, ¶ 8, 610 N.W.2d 787, 791-792, the standard of review for summary judgment is as follows:
Summary judgment is authorized "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." SDCL 15-6-56(c). We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987). All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990). The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968). "Summary judgment will be affirmed if there exists any basis which would support the trial court's ruling." Wolff v. SD Game, Fish and Parks Dept., 1996 SD 23, ¶ 32, 544 N.W.2d 531, 537 (citing St. Paul Fire & Marine Ins. Co. v. Schilling, 520 N.W.2d 884, 886 (S.D.1994)) (emphasis added).
[¶ 12.] When reviewing the constitutionality of a statute, our review is de novo. Green v. Siegel, Barnett & Schutz, 1996 SD 146, ¶ 7, 557 N.W.2d 396, 398 (citing Kyllo v. Panzer, 535 N.W.2d 896, 897 (S.D. 1995)).
[¶ 13.] 1. Whether the trial court properly dismissed Homeowners' claim that fraudulent concealment on the part of FMG tolled the ten-year statute of limitation contained in SDCL 15-2A-3.
[¶ 14.] FMG contends that it is entitled to summary judgment because the limitation period in the applicable statute of limitation has run. Specifically, SDCL 15-2A-3 provides:
No action to recover damages for any injury to real or personal property, for personal injury or death arising out of any deficiency in the design, planning, supervision, inspection and observation of construction, or construction, of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury or death, may be brought against any person performing or furnishing the design, planning, supervision, inspection and observation of construction, or construction, of such an improvement more than ten years after substantial completion of such construction. The date of substantial completion shall be determined by the date when construction is sufficiently completed so that the owner or his representative can occupy or use the improvement for the use it was...
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