Ferrell v. River City Roofing, Inc.

• Decision Date: 18 August 2005
• Docket Number: No. 2003-CA-02102-SCT.,2003-CA-02102-SCT.
• Citation: 912 So.2d 448
• Parties: Wayne E. FERRELL, Jr. d/b/a Ferrell-Hubbard Investments v. RIVER CITY ROOFING, INC., and Larry Montpelier, Jr.
• Court: Mississippi Supreme Court

912 So.2d 448

Wayne E. FERRELL, Jr. d/b/a Ferrell-Hubbard Investments v. RIVER CITY ROOFING, INC., and Larry Montpelier, Jr.

No. 2003-CA-02102-SCT.

Supreme Court of Mississippi.

August 18, 2005.

Rehearing Denied October 27, 2005.

Wayne Ferrell, Jr., Adrienne Page Parker, Jackson, attorneys for appellant.

J. Wade Sweat, Charles G. Copeland, Ridgeland, attorneys for appellees.

Before WALLER, P.J., DICKINSON and RANDOLPH, JJ.

RANDOLPH, Justice, for the Court.

¶ 1. Wayne E. Ferrell, Jr., individually and d/b/a Ferrell-Hubbard Investments ("Ferrell") filed suit against River City Roofing, Inc. ("River City"); Carlisle Syntec Systems, a division of Carlisle Corporation ("Carlisle"); and putative defendants, A through M, on December 28, 2001, in the Circuit Court of the First Judicial District of Hinds County, Mississippi. Ferrell amended his complaint naming as additional defendants Henry D. Melsheimer and Larry Montpelier, Jr. ("Montpelier") in order to more definitely provide the names of the defendants. In both the original and amended complaint, Ferrell asserted claims of faulty workmanship and defective product under a plethora of theories, including but not limited to: (1) negligence; (2) fraud; (3) defective materials; (4) strict liability in tort; (5) breach of express and implied warranties; (6) breach of contract; (7) products liability; and (8) false representation. Specifically, Ferrell asserts that he was entitled to damages for the manufacture, installation and use of defective materials utilized to the roof of a structure located at 405 Tombigbee Street in Jackson, Mississippi.

¶ 2. River City and Montpelier filed a motion for summary judgment asserting that Ferrell's claims were time barred by the statute of repose, Miss.Code Ann. § 15-1-41 (1995). Ferrell filed a response and/or objection to River City and Montpelier's motion for summary judgment asserting that his claims were not time barred because the actions of replacing or repairing the roof were not within the meaning of § 15-1-41:

The re-roofing of the ... building ... was not a damage to property or personal injury that arose out of any deficiency in the design, planning, supervision, observation or construction of AN IMPROVEMENT TO REAL PROPERTY since the roof was not actually an improvement. It was simply a repair of the roof that had previously been on the building and it still exists on the building.

(Emphasis in original). Additionally, Ferrell asserted that the products liability statute, Miss.Code Ann. § 11-1-63, applied because the roof is defective, and thus, § 11-1-63 invoked the "discovery rule," which set the beginning of the limitation period from the time the defect was first discovered. Following oral arguments by the parties, the trial judge granted summary judgment in favor of River City and Montpelier and entered the judgment as final pursuant to Miss. R. Civ. P. 54(b).

¶ 3. Ferrell appeals and raises the following issues, which have been restated for clarity:

I. Whether the trial court erred in granting summary judgment in favor of River City and Montpelier based upon the believed applicability of Miss.Code Ann. § 15-1-41.

II. Whether the products liability statute, Miss.Code Ann. § 11-1-63, applies, and renders the "discovery rule," as stated in Miss.Code Ann. § 15-1-49, applicable for the purpose of computing the correct statute of limitations period.

FACTS

¶ 4. On and prior to August 11, 1993, River City installed a commercial roof on Ferrell's building located in Jackson, Mississippi, at 405 Tombigbee Street. In his complaint, Ferrell asserts that River City negligently manufactured and installed the roofing membrane, which subsequently resulted in the roof leaking water and causing property damage. Ferrell asserts that River City "promised, warranted, represented, and assured" Ferrell that the problems would be corrected.

¶ 5. Ferrell additionally asserted problems arose, and River City failed to honor the warranty and representation that all defects/problems would be corrected. According to Ferrell's affidavit, in December 2001, he first learned that River City, instead of replacing the roof, installed a roofing membrane structure over two previously existing roofing structures. This installation was in violation of the City of Jackson's building standards and Fire Code.

DISCUSSION

¶ 6. The standard for reviewing the grant or the denial of summary judgment is the same standard employed by the trial court under Mississippi Rule of Civil Procedure 56(c). This Court conducts a de novo review when reviewing a lower court's grant or denial of summary judgment. Saucier ex rel. Saucier v. Biloxi Reg'l Med. Ctr., 708 So.2d 1351, 1354 (Miss.1998). "`This entails reviewing all evidentiary matters in the record: affidavits, depositions, admissions, interrogatories, etc.'" Id. (quoting Townsend v. Estate of Gilbert, 616 So.2d 333, 335 (Miss.1993)) (citations omitted). The trial court may grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56(c). A fact is material if it "tends to resolve any of the issues properly raised by the parties." Palmer v. Anderson Infirmary Benevolent Ass'n, 656 So.2d 790, 794 (Miss.1995).

¶ 7. Furthermore, "[a] motion for summary judgment should be overruled unless the trial court finds, beyond a reasonable doubt, that the plaintiff would be unable to prove any facts to support his claim." Id. at 796. The trial court is prohibited from trying the issues; "it may only determine whether there are issues to be tried." Id. (citations omitted) (emphasis in original). The evidence must be viewed in the light most favorable to the nonmoving party. Id. at 794. If, in this view, the moving party is entitled to judgment as a matter of law, then summary judgment should be granted; otherwise, the motion for summary judgment should be denied. Id.

I. Miss.Code Ann. § 15-1-41.

¶ 8. Miss.Code Ann. § 15-1-41 (Rev.2003) states in pertinent part:

No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property, and no action may be brought for contribution or indemnity for damages sustained on account of such injury except by prior written agreement providing for such contribution or indemnity, against any person, firm or corporation performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than six (6) years after the written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof. This limitation shall apply to actions against persons, firms and corporations performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property for the State of Mississippi or any agency, department, institution or political subdivision thereof as well as for any private or nongovernmental entity.

This limitation shall not apply to any person, firm or corporation in actual possession and control as owner, tenant or otherwise of the improvement at the time the defective and unsafe condition of such improvement causes injury.

(Emphases added).

¶ 9. Ferrell asserts that the trial court erred in granting summary judgment as a matter of law because the trial court's categorization of River City's installation and subsequent repairs of the roof as an improvement to real property was a "far cry from an improvement—in fact, the property value of the building ... has been reduced as a result of the property damage that has resulted from the water leaks from the roof." Therefore, Ferrell asserts, that there is no "improvement to real property" or at best, material issues of genuine fact exist for a jury to decide regarding whether vel non the installation and subsequent repairs are "improvements to real property" and whether vel non § 15-1-41 is even applicable because (1) a twenty-year warranty was entered into for the roof and its installation; and (2) Ferrell, the owner of the building and the roof, was in possession of the premises when the defective and unsafe condition caused injury.

¶ 10. River City and Montpelier respond by asserting: (1) § 15-1-41 is applicable in that their actions were an "improvement to real property;" (2) the warranty agreement was not between Ferrell and River City, but rather between Ferrell and Carlisle, and further that § 15-1-41 refers to a prior written agreement providing for contribution and indemnity, none of which are present here; and (3) § 15-1-41 regarding when the limitation shall not apply does not apply to an individual in Ferrell's position.

A. Warranty Agreement.

¶ 11. The relevant statute states in pertinent part that, "no action may be brought for contribution or indemnity for damages sustained on account of such injury except by prior written agreement providing for such contribution or indemnity. ..." Miss.Code Ann. § 15-1-41 (emphases added). Here, even assuming arguendo that River City was a party to the warranty, Ferrell's complaint does not sound in contribution or indemnity. Therefore, Ferrell's argument is without merit.

B. Section 15-1-41 Limitation.

¶ 12. Under these circumstances, Ferrell's assignment of error regarding the statute not applying to him, as he was in possession, is without merit.

¶ 13. This Court, adopting the legislative intent as to the class of persons covered by the repose statute, has reiterated and quoted the Louisiana Supreme Court's reasoning:

We consider that there is a valid distinction between persons performing or...