McCaulley v. C L Enters., Inc.
| Decision Date | 07 May 2021 |
| Docket Number | No. S-20-075.,S-20-075. |
| Citation | 309 Neb. 141,959 N.W.2d 225 |
| Parties | Richard MCCAULLEY, individually and as Personal Representative of the Estate of Michelle McCaulley, appellant, v. C L ENTERPRISES, INC., a Nebraska corporation, et al., appellees. |
| Court | Nebraska Supreme Court |
Andrew M. Hollingsead and Michael J. Matukewicz, of Liakos & Matukewicz, L.L.C., Omaha, for appellant.
Robert D. Mullin, Jr., of McGrath, North, Mullin & Kratz, P.C., L.L.O., Omaha, for appellee Able Plumbing, Inc.
Robert M. Schartz, Omaha, and Julie M. Ryan, of Abrahams, Kaslow & Cassman, L.L.P., for appellee Timberland Hardwood Floors, Inc.
Danny C. Leavitt, of Salerno & Leavitt, Omaha, for appellee Dan Becker.
Daniel J. Welch, Damien J. Wright, Omaha, and Daniel McDowell, Senior Certified Law Student, of Welch Law Firm, P.C., for appellee Hardscape Contractors, LLC.
In this construction defect case brought by homeowners against several contractors, the district court found the homeowners’ claims were time barred under Neb. Rev. Stat. § 25-223 (Reissue 2016). The primary question on appeal is whether the 4-year limitations period under § 25-223 began to run on the date each contractor substantially completed its project or on the date the entire home was completed. Because we agree with the district court that the limitations period against each contractor began to run upon the substantial completion of each contractor's project, we affirm.
In approximately November 2006, Richard McCaulley and Michelle McCaulley began construction on a home in Omaha, Nebraska. The McCaulleys acted as their own general contractor, and in that capacity, they hired a number of different contractors to perform specific work. As relevant to the issues on appeal, the McCaulleys hired Able Plumbing, Inc., to install sewer lines servicing the property; Affordable Exteriors, Inc., to install exterior masonry and brickwork; Stile Construction Services, LLC (Stile), to install the roof; Timberland Hardwood Floors to install hardwood floors; Dan Becker Construction to install the doors and windows; Senegal Specialty Contracting, LLC, to perform waterproofing and to install drain tile and sump pumps; and Hardscape Contractors, LLC, to construct a retaining wall.
The McCaulleys moved into the home sometime in late February or early March 2008. Approximately 4 years later, on February 7, 2012, they filed this construction defect action in the district court for Douglas County, naming as defendants 12 of the contractors involved in the construction of the home, including the 7 contractors referenced above.
The McCaulleys alleged a separate negligence claim against each of the seven contractors. Specifically, they alleged that each such contractor owed a legal duty to install its "respective improvements" to the property "in a good and workmanlike manner" and failed to do so. They also alleged a breach of warranty claim against four of the contractors: Able Plumbing, Affordable Exteriors, Stile, and Dan Becker Construction. Specifically, they alleged that each such contractor's work carried with it a warranty the work "would be performed in a good and workmanlike manner, without latent defects, and reasonably fit for the ordinary purposes" for which the specific work was intended. It was alleged that each such contractor breached the warranty, because the McCaulleys discovered "numerous and substantial defects and deficiencies in the installation" work of each. There were no allegations that any of the contractors expressly warrantied their work.
While the case was pending, Michelle died. Her claims have been revived by Richard in his capacity as personal representative of her estate. For ease of reference, this opinion will continue to refer to the plaintiffs/appellants as "the McCaulleys."
At different times during the litigation, each of the seven contractors referenced above filed a motion for summary judgment, arguing the claim against it was barred by the 4-year limitations period under § 25-223. Each of the seven contractors generally argued that the McCaulleys’ claim accrued, and the limitations period under § 25-223 began to run, on the date that each contractor substantially completed its work. The McCaulleys did not dispute the dates on which each contractor claimed to have completed its work, but instead argued that the 4-year limitations period did not start to run for any of the seven contractors until the entire home construction project was substantially completed.
In March 2014, the district court granted summary judgment in favor of Timberland Hardwood Floors, Senegal Specialty Contracting, and Hardscape Contractors, generally agreeing that the limitations period for the McCaulleys’ claims against these contractors began to run on the dates that each contractor substantially completed its work. After determining the substantial completion date for each contractor, the district court found the McCaulleys’ suit had not been filed within 4 years of such date. The district court also found the discovery rule did not extend the time to file against any of these contractors, and thus, it dismissed the claims against those contractors as time barred. In June 2015, the district court utilized identical reasoning to grant summary judgment in favor of Able Plumbing and Dan Becker Construction.
Similar summary judgment motions were filed by Affordable Exteriors and Stile, and those motions were pending when this court decided Adams v. Manchester Park .1 At the summary judgment hearing in November 2015, the McCaulleys made an oral motion for leave to file a fourth amended complaint, relying on language in the concurring opinion in Adams to argue they should be allowed to amend their complaint to allege the breach of an express warranty to repair. Both Affordable Exteriors and Stile objected to the requested amendment, arguing that the McCaulleys had already filed three complaints and that none had alleged the existence, or breach, of an express warranty to repair material defects. The court took the oral motion to amend under advisement.
In an order entered February 11, 2016, the district court granted summary judgment in favor of Affordable Exteriors and Stile, again reasoning that the 4-year limitations period under § 25-223 began to run on the dates each contractor substantially completed its respective work and that the completion dates were more than 4 years before the date on which the McCaulleys filed their lawsuit. The court also denied the McCaulleys’ request for leave to file a fourth amended complaint.
After all remaining claims were resolved, the district court entered final judgment, and the McCaulleys timely appealed. We moved the case to our docket on our own motion.
The McCaulleys assign, restated, that the district court erred in (1) finding their claims against the seven contractors were time barred by § 25-223 and (2) denying their oral motion seeking leave to amend their complaint to add a new claim against Affordable Exteriors and Stile.
An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.2 An appellate court reviews the district court's grant of summary judgment de novo, viewing the record in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor.3
A district court's denial of a motion for leave to amend a complaint is reviewed for an abuse of discretion.4 A judicial abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.5
The primary issue on appeal is whether the contractors were entitled to summary judgment on statute of limitations grounds. Given the nature of the McCaulleys’ claims against the contractors, all parties agree the applicable statute of limitations is found in § 25-223. That statute provides:
Any action to recover damages based on any alleged breach of warranty on improvements to real property or based on any alleged deficiency in the design, planning, supervision, or observation of construction, or construction of an improvement to real property shall be commenced within four years after any alleged act or omission constituting such breach of warranty or deficiency. If such cause of action is not discovered and could not be reasonably discovered within such four-year period, or within one year preceding the expiration of such four-year period, then the cause of action may be commenced within two years from the date of such discovery or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. In no event may any action be commenced to recover damages for an alleged breach of warranty on improvements to real property or deficiency in the design, planning, supervision, or observation of construction, or construction of an improvement to real property more than ten years beyond the time of the act giving rise to the cause of action.6
We have long held that the limitations period in § 25-223 applies to defective construction claims brought against contractors and builders, whether such claims are based on negligence or breach of warranty.7 The dispute in this appeal centers on when the 4-year limitations period under § 25-223 began to run as against the contractors.
As a general rule, when the basis of a claim against a builder or contractor "is improper workmanship resulting in defective construction, the § 25-223 statute of limitations runs from the date of substantial completion of the...
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