Linn Reorganized School Dist. No. 2 of Osage County v. Butler Mfg. Co.
| Decision Date | 19 June 1984 |
| Docket Number | No. 65408,65408 |
| Citation | 672 S.W.2d 340 |
| Parties | 18 Ed. Law Rep. 783 LINN REORGANIZED SCHOOL DISTRICT NO. 2 OF OSAGE COUNTY, Missouri, Appellant, v. BUTLER MANUFACTURING COMPANY, Western Waterproofing, Inc., Frangkiser & Hutchens, Inc., and Vincent Roofing Company, Respondents. |
| Court | Missouri Supreme Court |
Robert L. Hyder, Jefferson City, for appellant.
Thomas J. Wheatley, Timothy K. McNamara, Kansas City, William A. Atkinson, Columbia, Ronald R. McMillin, Jefferson City, for respondents.
Suit to recover damages to a public school building because of faulty design and improper installation of the roof thereof. The Circuit Court of Gasconade County granted summary judgment for all defendants, concluding the claims against them were barred by the statutes of limitation [§§ 516.100, 516.120, RSMo 1978]. The Missouri Court of Appeals, Eastern District, reversed and remanded. We granted transfer to consider whether or not § 516.097, RSMo 1978, was applicable. We conclude we need not decide that question in this case and adopt, with minor modifications, the opinion of Manford, J., sitting as Special Judge, as follows:
Numerous points are presented by the parties on this appeal, but due to the disposition herein, only one point is considered. It is contended by plaintiff-appellant that its claims were not barred by §§ 516.100 and 516.120, the five-year statute of limitations, when suit was filed on October 3, 1977.
Since the ruling by the trial court was summary judgment, the record on appeal is comprised of the pleadings, depositions, affidavits, and other documentation as opposed to a trial transcript. From those various documents, the following pertinent facts have been developed.
Plaintiff-appellant is the duly reorganized school district (No. 2) of Osage County, Missouri. It desired to construct a vocational school and fieldhouse. On April 8, 1971, respondent Frangkiser & Hutchens, Inc. was selected as the architect for the project, and a contract between plaintiff-appellant and respondent Frangkiser & Hutchens, Inc. was entered into the same day. The contract empowered Frangkiser & Hutchens, Inc. to design the facility and to supervise the work involved in the construction. The contract also provided that the architect (Frangkiser & Hutchens, Inc.) could reject nonconforming work, determine dates of substantial and final completion, and issue the final certificate for payment upon final completion.
The fieldhouse portion of the project was to have a dome type roof. Due to the type of construction, the dome roof was to be erected prior to the construction or addition of any side walls.
The architect submitted the construction plan for the dome roof to respondent Butler Manufacturing Company. Butler made substantial design changes, and there followed a contract for the construction of the dome between plaintiff-appellant and Butler, under date of January 19, 1972.
Respondent Vincent was engaged to install the roof on the dome. From the record, it appears that the supporting portion (excluding side walls) for the dome was in place and completed in July, 1972. The record includes a letter to Vincent from the architect stating that the sum of $10,000 from total payment due Vincent by July 25, 1972 was being withheld, because of the appearance of the dome (i.e., discoloration) and the leaking of the roof. Some roof leaks were stopped by Vincent. Vincent never finished its work on the roof, and the roofing was never finally accepted by the architect. As late as June 13, 1973, the architect informed Vincent, by letter, that unless Vincent returned to the project and finished its work, someone else would be hired to fulfill Vincent's obligation under the contract.
On November 9, 1972, the floor of the gymnasium was being installed, and Vincent was told that the stoppage of the roof leak was urgent. At the same time, Vincent was told by the architect of its (the architect's) dissatisfaction with the dome color.
The main contractor, Wardway Construction Company (who at the time of trial was no longer in business), asked Vincent, by letter of June 25, 1973, to meet with its representatives, because Wardway did not want to repair roof leaks guaranteed by Vincent. By letter of July 11, 1973, the architect advised Vincent that since Vincent had not completed its contract, it would be terminated seven days later (July 18, 1973) as per the terms in the specifications. Vincent's contract was terminated on July 23, 1973. The record reveals that Vincent never completed the work as per the contract terms, and never received full payment.
The deposition testimony of various school board members included their claim that "the roof leaked from the first day of construction" and various other but equally comparable, statements. Plaintiff-appellant's amended petition makes the same claim. It is upon this documentation that respondents premise their claim (and apparently the trial court did also) that plaintiff-appellant's claims were barred by § 516.120. It is respondents' position that since the roof was installed in July, 1972, and there is evidence to show that the roof leaked as of that time, that plaintiff-appellant's damages were ascertainable as of that date and the statute of limitations commenced to run, thus barring any action filed on October 3, 1977.
Section 516.100 reads as follows, and the specific portion of that section in dispute herein is emphasized:
Respondents then argue that § 516.120 prescribes an applicable limit of five years. Plaintiff-appellant contends that § 516.120 is not applicable, but rather, that § 516.110 (10-year statute) and/or § 516.097, RSMo 1978 control. We do not address the question of whether the five or ten year statute of limitations is controlling because we conclude that regardless the instant action was properly commenced within the shorter five year period. 1
The entire dispute on this appeal lies in the question (and the answer to that question) of whether plaintiff-appellant's alleged damages were capable of ascertainment (if more than one item of damage, then the last item) as of July, 1972, so that all resulting damage could be recovered, and full and complete recovery, if warranted, could be obtained.
From the record before this court, the following facts can be summarized to support the conclusion reached herein. In the first instance, plaintiff-appellant's petition makes claim for damages to the roof and the gymnasium floor. Second, the gymnasium floor was not installed, at the earliest, until November, 1972. Even if the date urged by respondents (July, 1972) is accepted regarding the roof damage, the damage relative to the gymnasium floor could not have been ascertained anytime prior to November, 1972, and the statute of limitations could not have run against that claim.
In addition, the fact that there is deposition testimony that the roof leaked from the first day of construction is not, as respondents would have that evidence interpreted, an ascertainment of damages, but rather, is evidence of an alleged faulty condition. From the record, it appears that in July, 1972, there existed a dome roof structure independent of supporting walls, flooring, and other integrated parts of the structure added later by continued construction. The record shows that the roof was leaking at the time, and thus suffering damage in its own capacity, but simultaneously, the roof was a source of damage to subsequently added portions of the facility. From the record herein, the mere evidence that the roof leaked from the first day of construction is not supportive of a conclusion that damages as of that time were ascertainable.
To follow respondents' theory would place upon an aggrieved party the task of piecemeal litigation. For example, if respondents' theory was followed, a claimant would have to sue a roofer within five years of the first leakage, although the remainder of a project might well extend beyond a five-year period; but upon the given facts, it could be clearly ascertained that the roof leakage directly attributed to losses within or to the remainder of the project, along with continual roof damage. Neither § 516.100 nor § 516.120 contemplate or even permit such a suggestion.
In the instant case, it is obvious that the damages allegedly caused by the roof, either by way of design or construction, were continual during the remaining period of construction of the facility. It cannot be concluded from the documentation upon this record that §§ 516.100 and 516.120, as a matter of law, barred plaintiff-appellant from a trial upon its claim for damages.
What § 516.100 and § 516.120 require for the commencement of the running of the statute is that the resulting damage "is capable of ascertainment." Respondents direct our attention to Dixon v. Shafton, 649 S.W.2d 435 (Mo. banc 1983). There the court addressed the applicability of § 516.120 to a contract and obligations due under that contract, according to predetermined and agreed-to dates within the contract. The facts and circumstances of Dixon distinguish that case from the instant case. In Dixon, the court noted that when a party to the contract notified others to the contract that a mistake had been made and...
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