Ehrenhaft v. Malcolm Price, Inc.

• Decision Date: 14 November 1984
• Docket Number: No. 83-1261.,83-1261.
• Citation: 483 A.2d 1192
• Parties: Peter D. EHRENHAFT, Appellant, v. MALCOLM PRICE, INC., et al., Appellees.
• Court: D.C. Court of Appeals

483 A.2d 1192

Peter D. EHRENHAFT, Appellant, v. MALCOLM PRICE, INC., et al., Appellees.

No. 83-1261.

District of Columbia Court of Appeals.

Argued June 28, 1984.

Decided November 14, 1984.

COPYRIGHT MATERIAL OMITTED

Geoffrey F. Aronow, Washington, D.C., with whom Philip A. Lacovara, Washington, D.C., was on the brief, for appellant. Peter D. Ehrenhaft, Washington, D.C., also entered an appearance pro se.

Robert A. Rich, Washington, D.C., with whom Norman H. Singer, Washington, D.C., was on the brief, for appellee Malcolm Price, Inc.

Courts Oulahan, Washington, D.C., for appellee Charles H. Atherton.

Before MACK, NEWMAN and ROGERS, Associate Judges.

MACK, Associate Judge:

The instant appeal reaches this court upon review of separate motions for summary judgment granted in favor of defendants-appellees. We hold that the motions were improperly granted, for two reasons. First, the trial court that granted the motions did so in contravention of the "law of the case" as it had been established by a prior coordinate court on the issue of whether language in a contractual clause was ambiguous. Second, we hold that the "discovery rule"¹ should be extended under the facts of this case to determine the commencement of the statute of limitations in the context of the contract, warranty, and negligence claims herein alleged. In so holding, we conclude that negligence claims are cognizable for alleged breach of contractual duties, and that the discovery rule is appropriately applied to an action based on breach of contract and warranty. Application of the discovery rule leads us to conclude further that there exists a genuine issue of material fact as to when the statute of limitations began to run. Accordingly, we reverse and remand for resolution of factual matters.

We point out that, as appellant's counsel acknowledged during oral argument, this suit may be resolved on remand based solely upon the law of the case doctrine. We are of the view, however, that to reach only that issue is inexpedient and impractical given that appellant will undoubtedly seek to pursue before the trial court the same alternative theories to make his suit timely that he raises in depth before this court. Therefore, we consider the issue of the applicability of the discovery rule indeed to be properly before us. Given this disposition, appellant's alternative theories to preserve the timeliness of his claim, based upon estoppel or repair, need not be addressed.

I. Facts

Appellant filed this lawsuit in the civil division of the Superior Court on September 3, 1982, seeking compensation for various defects which arose in connection with a new room, referred to as the patio room, built onto appellant's house by appellee Malcolm Price, Inc., a general contractor, and designed by appellee Charles A. Atherton, an architect.

In appellant's complaint, titled by him as one "on a contract and for negligence," he set forth the following facts: On April 5, 1977, appellant entered into a written agreement² with Price to build an additional room onto appellant's house. Atherton was identified as the architect in the agreement. The agreement provided that all work "will be of good quality, free from defects and in conformity with the Contract Documents."³ Construction was completed in the autumn of 1977.

Appellant's complaint specified three claims for relief as follows:

(1) Plumbing in the south wall

During the winter following the completion of the patio room (1977-78), the plumbing lines in the south wall froze and burst. Price repaired the pipes without charge. During the next winter (1978-79), the same pipes froze and burst again. Price again returned to repair the damage and informed appellant that there was insufficient insulation in the wall to protect the pipes from freezing. Price allegedly represented that insulation would be added. On this occasion, Price's plumber installed shut-off valves because the plumber believed that sufficient insulation could not be installed in the wall. The architect, Atherton, was consulted but allegedly did nothing to resolve the problem. Appellant further claimed that on or about December 15, 1981, he used the shut-off valves that had been installed in 1979; but that during the winter of 1981-82⁴ the pipes froze and burst for the third time, resulting in damage that was not evident until appellant turned on the water supply in the patio room in March, 1982. On this occasion, the contractor, Price, refused to make the necessary repairs without charge. As a result, appellant engaged another contractor who informed him that there was still virtually no insulation in the south wall.

Based upon the above purported defects in the design and construction of the patio's south wall and the related plumbing, appellant set forth three theories of liability against Price and Atherton: (a) that appellees "breached their contract" to build the patio room according to the terms of the agreement, (b) that they "breached their implied and express warranties" that their work would be free from faults and defects, and (c) that appellees acted with "negligence" in performing their contractual obligations in the design and construction of the south wall and in their efforts to rectify the defects.

(2) Window panes in the west wall

During the winter of 1981-82, appellant noticed that panes of insulated glass in the patio room's west all had become fogged. The panes required replacement, at which time appellant was informed by another contractor that the problem had resulted from the initial faulty installation of the glass.

In connection with the design and construction of the west wall, appellant reasserted his three claims that appellees (a) breached their contract under the agreement, (b) breached their implied and express warranties, and (c) acted with negligence in the performance of their contractual obligations.

(3) Heater under the bench

Appellant complained to Price prior to the repairs undertaken in 1978 that excessive heat built up under the bench along the west wall in the patio room. Although Price added insulation to the bench, appellant alleged that the build-up of heat persisted and that he was informed by the new contractor, who effected the repairs in the spring of 1982, that the heater had been installed in a manner that would cause a dangerous build-up of heat under the bench.

Thus, in his third claim for relief, relating to the design and installation of the heater in the patio room, appellant renewed his contentions that appellees (a) breached their contract, (b) breached their implied and express warranties, and (c) acted with negligence in the performance of their contractual duties.

The complaint stated, finally, that appellant had unsuccessfully sought reimbursement from appellees for the cost of damages sustained as a result of the alleged defects, and that he had unsuccessfully attempted to arbitrate the matter.

A. Proceedings before the first trial court

Prior to filing an answer, appellees jointly filed a motion to dismiss, alleging that the statute of limitations for contract actions applied and that the three-year period had run on each claim.⁵ They further argued that the negligence claim in essence constituted a contractual, not a tortious, allegation of liability, and therefore was not cognizable as an independent claim. In his opposition to the motion to dismiss, appellant set forth alternative theories in support of his contention that the claims were timely,⁶ and argued that an action in negligence did indeed properly lie. Appellant in addition submitted an affidavit in support of his opposition. The trial court, Judge Morrison presiding, denied appellees' motion to dismiss without prejudice on July 14, 1983.

B. Proceedings before the second trial court

On February 16, 1983, Atherton filed an answer with exhibits attached, and Price filed a separate answer. That same day Price filed a motion for summary judgment based upon expiration of the statute of limitations. Appellant filed his opposition to Price's motion on March 8, 1983, attaching his affidavit and various letters to him from appellees as exhibits. The second trial court, Judge Doyle presiding, granted Price's motion for summary judgment on August 16, 1983. Shortly thereafter, on September 22, 1983, Judge Doyle issued a written order stating that the same ruling on the motion for summary judgment was applicable to Atherton.

II. Law of the Case

Appellant contends that Judge Morrison's ruling on the motion to dismiss established the "law of the case" based upon which Judge Doyle was required to deny Price's motion for summary judgment.⁷ While we do not agree that Judge Morrison's initial ruling in and of itself required denial of the motion for summary judgment, we do agree that it provided the groundwork on a definitive matter of law that Judge Doyle could not properly deviate from or reconsider.

Our analysis begins with a statement of applicable law. The doctrine known as the "law of the case" operates to preclude one trial court from ruling on a question of law already decided in the same case by a different court of coordinate jurisdiction. P.P.P. Productions, Inc. v. W & L, Inc., 418 A.2d 151, 152 (D.C.1980). This serves to discourage "judge-shopping" by ensuring that only a higher court can reverse or modify a settled point of law. Kritsidimas v. Sheskin, 411 A.2d 370, 371 (D.C.1980). As we stated in P.P.P. Productions, supra,

This doctrine is applicable when (1) the motion under consideration is substantially similar to the one already raised before, and considered by, the first court; (2) the first court's ruling is "sufficiently `final'"; and (3) the prior ruling is not "clearly erroneous in light of newly presented facts or a change in substantive law."

418 A.2d at 152 (citing Kritsidimas, supra, 411 A.2d at 372). Review of these three factors persuades us that, as we concluded in P.P.P. Productions...