Kirby v. Jean's Plumbing Heat & Air

• Decision Date: 22 September 2009
• Docket Number: No. 105,884.,105,884.
• Citation: 222 P.3d 21,2009 OK 65
• Parties: Dale KIRBY, Plaintiff/Appellant v. JEAN'S PLUMBING HEAT & AIR, Defendant/Appellee.
• Court: Oklahoma Supreme Court

222 P.3d 21

2009 OK 65

Dale KIRBY, Plaintiff/Appellant v. JEAN'S PLUMBING HEAT & AIR, Defendant/Appellee.

No. 105,884.

Supreme Court of Oklahoma.

September 22, 2009.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. 1

¶ 0 Plaintiff engaged the defendant plumber to install a sewer pipeline on his property in 1996. In 2007 a backup caused raw sewage to seep into plaintiff's home and damage his property. Appellant brought suit against appellee for negligence and breach of contract in the installation of the sewer pipeline. Upon motion by defendant's counsel, the District Court, Oklahoma County, Barbara G. Swinton, Judge, dismissed the action relying on the statute of repose and statute of limitations. The Court of Civil Appeals, Division I, affirmed that disposition. On certiorari granted upon plaintiff's petition,

THE COURT OF CIVIL APPEALS' OPINION IS VACATED; THE TRIAL COURT'S ORDER GRANTING DEFENDANT'S MOTION TO DISMISS IS AFFIRMED.

Jim Buxton, Jacob L. Rowe, Buxton Carson, P.L.L.C, Oklahoma City, OK, for Plaintiff/Appellant.

Maurice G. Woods, II, Ryan V. Coventon, McAtee & Woods, P.C., Oklahoma City, OK, for Defendant/Appellee.

OPALA, J.

¶ 1 Two issues are presented on certiorari. The first of these is whether the replacement of a sewer pipeline constitutes an "improvement to real property" within the meaning of the statute of repose in 12 O.S.2001 § 109.¹ We answer that question in the affirmative. The second issue is whether the invoked statute of limitations in 12 O.S.2001 § 95² may be enlarged by the discovery rule.³ To that question our answer is in the negative.

I THE ANATOMY OF LITIGATION

¶ 2 In July 1996 Dale Kirby (Kirby or appellant) entered into a contract with Jean's Plumbing Heat & Air (Jean or appellee) for the installation of a sewer line to connect Kirby's home to the city's sewage system. In June 2007 a backup resulted in raw sewage and other hazardous material seeping into Kirby's home, causing damage to his property. Kirby claims the backup's cause was appellee's failure properly to cap the line and remove the sewer pipe then still in place after installing a new line. Also alleged was Jean's failure properly to connect the new sewer line to the city's system.

¶ 3 Kirby sought damages from negligence and breach of contract. Jean responded by a motion to dismiss for failure to state a claim. This prompted Kirby's amended petition that asserts the same claims against Jean. Jean responded to the amended petition by another motion to dismiss in which Jean argued that Kirby's claim of negligence was barred by the statute of repose in 12 O.S.2001 § 109. On appeal Jean also urged that Kirby's breach-of-contract claim was barred by the statute of limitations in 12 O.S.2001 § 95.

¶ 4 In his response Kirby takes the position that § 109 does not apply to the claim because the installation of the sewer line was actually a repair or replacement and not an improvement. He also claims there is a question of fact as to whether the installation of a sewer pipe is an improvement to real property or a normal repair or replacement. Kirby additionally argued that § 95's limitation period should be enlarged by the discovery rule to prevent his claim's defeat. The trial judge granted Jean's motion to dismiss in an order of April 25, 2008. The Court of Civil Appeals (COCA) affirmed the trial court's dismissal on February 13, 2009. COCA held appellant's claims were barred by the statute of repose in 12 O.S.2001 § 109 and by the statute of limitations in 12 O.S. 2001 § 95. This court granted certiorari on April 20, 2009.

II STANDARD OF REVIEW

¶ 5 When reviewing a trial court's dismissal of an action an appellate court examines the issues de novo.⁴ Motions to dismiss are generally viewed with disfavor.⁵ The purpose of a motion to dismiss is to test the law that governs the claim in litigation rather than to examine the underlying facts of that claim.⁶ A motion to dismiss for failure to state a claim upon which relief may be granted will not be sustained unless it should appear without doubt that the plaintiff can prove no set of facts in support of the claim for relief.⁷ When considering a defendant's quest for dismissal the court must take as true all of the challenged pleading's allegations together with all reasonable inferences that may be drawn from them.⁸ A plaintiff is required neither to identify a specific theory of recovery nor to set out the correct remedy or relief to which he (or she) may be entitled.⁹ A motion to dismiss should be denied if relief is possible under any set of facts which can be established and is consistent with the allegations.¹⁰ A petition can generally be dismissed only for lack of any cognizable legal theory to support the claim or for insufficient facts under a cognizable legal theory.¹¹ Our recapitulation of the standards that govern when a court is called upon to rule on a motion to dismiss will guide today's review of this case.¹²

III ARGUMENTS ON CERTIORARI

¶ 6 Kirby argues in his petition for certiorari and supplemental brief that the installation of the sewer pipeline does not constitute an "improvement to real property" within the meaning of 12 O.S.2001 § 109. The definition of an "improvement to real property" must be derived from the ad valorem tax code.¹³ That code defines an "improvement" as an addition to property which amounts to "more than normal repairs, replacement, maintenance or upkeep."¹⁴ Appellant argues that because the sewer pipe that Jean installed was replacing an existing pipeline it is to be included within the term "normal repairs, replacement, maintenance or upkeep."¹⁵ of the sewer line.

¶ 7 This court has defined maintenance as "the upkeep or preservation of condition of property, including cost of ordinary repairs necessary and proper from time to time for that purpose."¹⁶ Kirby relies on that definition to claim that replacement of his sewer line is merely normal maintenance and "upkeep or preservation ... of property"¹⁷, not an improvement to real property. Maintenance is not within the purview of § 109's statute of repose. Kirby argues that a claim for maintenance (rather than one for improvement) is not affected by § 109.

¶ 8 Jean argues the installation of the sewer pipeline is an improvement to real property and appellant's claims are defeated by lapse of time under both the statute of repose (§ 109) and the statute of limitations (§ 95). Moreover, Jean states that the new pipeline is an improvement to real property because (a) it increased the value of appellant's property and (b) is taxed as part of appellant's real property. In a prior decision this court held that a property's change by work performed upon it is not an improvement to real estate if it is not taxed as real property.¹⁸

¶ 9 Jean further argues that appellant's claim for breach of contract is barred by the statute of limitations found in 12 O.S.2001 § 95. If the discovery rule were applied to suits for the breach of a construction contract the statute of repose in 12 O.S.2001 § 109 would be rendered ineffectual and its protection meaningless. Jean points out that this court previously declined to apply the discovery rule to claims for breach of a construction contract where its application would operate to deprive a defendant of the full benefit of the statute of repose in § 109.¹⁹

IV

A. Statutes of Repose and Statutes of Limitations

¶ 10 Before allowing Jean to invoke here the provisions of 12 O.S.2001 §§ 95 and 109, we must first determine how a statute of limitations differs in its impact from one of repose. Early treatise writers and judges considered time bars created by statutes of limitations, escheat and adverse possession as creating periods of repose.²⁰ As the courts began to modify statutory limitations by superimposing the "discovery rule,"²¹ legislatures responded by enacting absolute (not tollable) time bars through statutes of repose. Modern statutes of limitations and statutes of repose are somewhat similar because they both provide repose for the defendant. They are nonetheless significantly different since a statute of limitation merely extinguishes the plaintiff's remedy while a statute of repose may defeat the accrual of a cause of action before one ever arises.²² In practical terms, a statute of repose marks the outer time boundary for judicial enforcement of a substantive right whereas a statute of limitation interposes itself only procedurally to bar solely the remedy after a substantive right has vested and a claim accrued.²³ Moreover, remedial time bars are tollable, whereas substantive-law time limits must be allowed to run and expire uninterrupted by any arrest or suspension.²⁴

¶ 11 The time prescribed by a statute of repose runs from a specific act or event regardless of when the harm or damage may occur. A statutory limitation period, on the other hand, runs from the time all the requisite elements of a cause of action occur. It may or may not allow for the plaintiff's discovery of the injurious event to extend the period of limitation.²⁵ Section 109 stands defined as a statute of repose. As we stated before: "[s]ection 109 is not a statute of limitations; it is a statute of repose. Rather than disturbing a vested substantive right, `a statute of repose marks [the right's] boundary.' It sets an outer boundary in time beyond which no cause of action may arise for conduct that would have otherwise been actionable" (citations omitted).²⁶

B.

Installing a Sewer Pipeline is an "Improvement to Real Property"

¶ 12 The ad valorem tax code's definition is to be used when determining whether the work in suit constitutes an "improvement to real property."²⁷ Kirby claims that the ad valorem tax code's definition of "improvement" does not include the replacement of a sewer line. Kirby also attempts to classify the installation of a new sewer line as the "normal repairs, replacement, maintenance or upkeep"²⁸ associated with sewer lines....