Loftus v. Romsa Const., Inc.

• Decision Date: 25 March 1996
• Docket Number: No. 95-111,95-111
• Citation: 913 P.2d 856
• Parties: John R. LOFTUS, Jr., and Gwendolyn B. Loftus, Appellants (Plaintiffs), v. ROMSA CONSTRUCTION, INC., a Wyoming corporation, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 856

913 P.2d 856

John R. LOFTUS, Jr., and Gwendolyn B. Loftus, Appellants (Plaintiffs), v. ROMSA CONSTRUCTION, INC., a Wyoming corporation, Appellee (Defendant).

No. 95-111.

Supreme Court of Wyoming.

March 25, 1996.

Bert T. Ahlstrom, Jr. and Jennifer A. Cudworth, Cheyenne, for Appellants.

James N. Wolfe and David D. Uchner, Cheyenne, for Appellee.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

THOMAS, Justice.

In this case, John R. Loftus, Jr. and his wife, Gwendolyn B. Loftus (collectively Loftus), question whether an affirmative defense, specifically the statute of repose found in WYO.STAT. § 1-3-111 (1988), must be deemed waived by the failure to plead it or by admitting an inconsistent factual allegation. Romsa Construction, Inc. (Romsa), not only failed to plead the statute of repose in its answer, but it admitted a factual allegation that the home, which allegedly was the product of defective construction, was completed within the ten-year period specified in the statute. In a motion for summary judgment, however, Romsa contended the action was foreclosed by substantial completion of the home more than ten years before the action was filed. The trial court granted that motion after ruling there was no genuine issue of material fact as to when the home was substantially completed. We are in accord with the conclusion of the trial court that there is no genuine issue of fact as to when the home was substantially completed, and we hold the defense of the statute was not waived by either the admission of fact in the answer or the failure to plead the defense. The Order Granting Summary Judgment entered in the trial court is affirmed.

In the Brief of the Appellants filed on behalf of Loftus, the issues are stated to be:

I. At what point in time was the house "substantially completed" so as to call into play the statute of repose, known as W.S. § 1-3-111; and, can Appellants be held to any such determination in any event?

II. If W.S. § 1-3-111 is applicable to Appellants, at what point in time can they be held to said statute?

III. Whether the very nature of the statute of repose mitigates against summary judgment in this case?

IV. Has the Appellee waived the right to interpose the defense of limitation; and otherwise as set forth hereinafter?

V. Whether summary judgment is proper herein pursuant to Rule 56, Wyoming Rules of Civil Procedure, and pursuant to the doctrine of equitable estoppel?

In the Brief of Appellee, this statement appears under the subtitle "Statement of the Issues":

For purposes of this Brief, the Appellee will accept the issues as presented by the Appellants and address each of them in the order presented.

On January 6, 1984, an agreement to purchase a home in Cheyenne was entered into between Loftus and Romsa. Romsa had constructed the home, and Loftus moved in sometime in February of 1984. Some eight years later, Loftus decided to sell the home, and it was listed with a local realtor in April of 1992. Some potential purchasers had the home inspected and, at that time, a problem with the brick veneer was identified. The inspector concluded the veneer was separating from the walls of the house and, in order to consummate a sale of the home, Loftus paid $7,980 to another contractor to correct the defect. Loftus then agreed to the sale of the home on August 31, 1992.

On December 22, 1993, Loftus filed a Complaint for Monetary Damages, seeking to recover from Romsa the $7,980 expended to have the veneer repaired, pre-judgment and post-judgment interest, and attorney fees and expenses. The allegation material to the resolution of this case is found in paragraph four of the Complaint for Monetary Damages, which reads:

The home was constructed by Defendant upon the described premises, and was completed the first part of 1984; and Defendant provided Plaintiffs with a "Warranty" on or about February 2, 1994 [sic], relating to the subject house and premises.

In its Answer, Romsa stated in paragraph one:

Plaintiff admits paragraphs 1, 2, 3, 4, except that the warranty provided was dated February 2, 1984, not 1994, paragraphs 6, 16, and 22.

Romsa did not specifically plead the statute of repose as an affirmative defense, but asserted in its fifth affirmative defense:

That Plaintiff is barred from recovery by virtue of the doctrine of laches and estoppel.

Subsequently, Romsa filed a Motion for Summary Judgment with supporting exhibits, which stated:

COMES NOW, the undersigned attorneys for the Defendant in the above-entitled matter and hereby moves the Complaint of the Defendant be dismissed on the grounds and for the reasons the Court lacks jurisdiction inasmuch as the claims of the Plaintiff are barred by W.S. § 1-3-111, 1977 [Wyoming's ten-year statute of repose] as amended. (Emphasis added.)

Loftus then filed a response, which denied "that this lawsuit is barred by the provisions of W.S. § 1-3-111, 1977, as amended" and requested the district court to "deny and dismiss the [Romsa's] Motion for Summary Judgment."

The district court granted Romsa's motion in an Order Granting Summary Judgment entered on February 23, 1995. The court considered the supporting materials furnished by the parties and concluded the Loftus home was "substantially completed" more than ten years prior to the filing of the action against Romsa. WYO.STAT. § 1-3-110 (1988) provides:

As used in this act [§§ 1-3-110 through 1-3-113] "substantial completion" means the degree of completion at which the owner can utilize the improvement for the purpose for which it was intended.

WYO.STAT. § 1-3-111 (1988) provides (emphasis added):

(a) Unless the parties to the contract agree otherwise, no action to recover damages, whether in tort, contract, indemnity or otherwise, shall be brought more than ten (10) years after substantial completion of an improvement to real property, against any person constructing, altering or repairing the improvement, manufacturing or furnishing materials incorporated in the improvement, or performing or furnishing services in the design, planning, surveying, supervision, observation or management of construction, or administration of construction contracts for:

(i) Any deficiency in the design, planning, supervision, construction, surveying, manufacturing or supplying of materials or observation or management of construction;

(ii) Injury to any property arising out of any deficiency listed in paragraph (i) of this subsection; or

(iii) Injury to the person or wrongful death arising out of any deficiency listed in paragraph (i) of this subsection.

(b) Notwithstanding the provisions of subsection (a) of this section, if an injury to property or person or an injury causing wrongful death occurs during the ninth year after substantial completion of the improvement to real property, an action to recover damages for the injury or wrongful death may be brought within one (1) year after the date on which the injury occurs.

(c) This section shall not be construed to extend the period for bringing an action allowed by the laws of this state.

In the materials produced to support its Motion for Summary Judgment, Romsa furnished an affidavit by its president in which it is stated:

2. That Romsa Construction, Inc., built the home which is the subject matter of the lawsuit of Loftus v. Romsa. That construction of the home was completed sometime prior to December 20, 1983.

3. That a review of the records of Romsa Construction by your undersigned Affiant, revealed that all of the bills of the construction of the home were paid in full prior to December 20, 1993. Those bills included the installation and completion of the water well and hook up to the house as well as the carpet costs including installation. Both of these matters are amongst the last items to be completed in home construction. The bills are not paid until the work has been completed. The bill for the installation and hook up of the water well was paid on November 8, 1983, and the bill for the carpeting was paid December 7, 1983.

4. The review by your Affiant also revealed that a compliance inspection report revealed that the property was inspected by the VA on or before December 20, 1983. Such inspection is not done until after the home construction is completed.

Copies of the paid bills and the inspection report were attached to the affidavit. It is clear Romsa supported its Motion for Summary Judgment by asserting facts demonstrating the home was "substantially completed" more than ten years prior to the filing of the Complaint for Monetary Damages. In response, the only facts furnished by Loftus were an admission by Mrs. Loftus in her deposition that she did not know when the house was completed. Loftus relied solely upon the transaction dates involved in the sale from Romsa to Loftus. We have no difficulty concluding, as the trial court did, that there was no genuine issue of material fact as to when the home was "substantially completed."

We turn to the substantive legal issues. Loftus contends Romsa waived the affirmative defense of the statute of repose in two ways. The first contention is that Romsa admitted the home was completed the first part of 1984. The second assertion of waiver arises out of the asserted failure to plead the affirmative defense. The first argument seems somewhat amorphous because, indeed, the home may have been completed by January of 1984. Therefore, it was appropriate for Romsa to admit the truth of that allegation. This admission does not foreclose Romsa from pointing out the home actually was completed at some earlier date, nor is it foreclosed from asserting it was "substantially completed" at some earlier date. The admission of a truthful allegation does not manifest any intention by Romsa to accomplish an "intentional relinquishment of a known right * * * in some unequivocal manner." See Ranger Ins. Co. v. Cates, 501 P.2d 1255, 1259 (Wyo.1972). When we couple ...