Nichols v. Peterson NW, Inc.

• Decision Date: 25 October 2016
• Docket Number: No. 47685-1-II,47685-1-II
• Citation: 197 Wash.App. 491,389 P.3d 617
• Court: Washington Court of Appeals
• Parties: David NICHOLS and Sylvia Nichols, husband and wife; Shyanne Nichols/Willis; Zachariah Nichols/Williams; and Benjamin Nichols, Appellants, v. PETERSON NW, INC., a Washington Corporation and Registered Contractor, Respondent, and THD At-Home Services, Inc., a foreign corporation, d/b/a The Home Depot At-Home Services, a Washington State Registered Contractor; Travelers Casualty & Surety Company, Bond No. 104010723; Sloan Construction, LLC, a Washington Limited Liability Company and Registered Contractor, Jacob Rios, d/b/a Modern Home Improvements, a Washington State sole proprietor; and Doe Defendants 1 through 10, Defendants.

197 Wash.App. 491

389 P.3d 617

David NICHOLS and Sylvia Nichols, husband and wife; Shyanne Nichols/Willis; Zachariah Nichols/Williams; and Benjamin Nichols, Appellants,

v. PETERSON NW, INC., a Washington Corporation and Registered Contractor, Respondent,andTHD At-Home Services, Inc., a foreign corporation, d/b/a The Home Depot At-Home Services, a Washington State Registered Contractor; Travelers Casualty & Surety Company, Bond No. 104010723; Sloan Construction, LLC, a Washington Limited Liability Company and Registered Contractor, Jacob Rios, d/b/a Modern Home Improvements, a Washington State sole proprietor; and Doe Defendants 1 through 10, Defendants.

No. 47685-1-II

Court of Appeals of Washington, Division 2.

October 25, 2016

Publication Ordered January 24, 2017

Daniel Abraham Berner, Kevin Hochhalter, Cushman Law Offices, P.S., 924 Capitol Way S., Olympia, WA, 98501-1210, for Appellants.

Richard Scott Fallon, Fallon McKinley & Wakefield, 1111 3rd Ave., Ste. 2400, Seattle, WA, 98101-3238, Kevin Ford Smith, Attorney at Law, 1191 2nd Ave., Ste. 500, Seattle, WA, 98101-2990, for Respondent.

Bjorgen, C.J.¶1 David and Sylvia Nichols appeal the trial court's ruling granting summary judgment in favor of Peterson Northwest Inc. and dismissing their negligence claim against Peterson. The parties dispute the following issues: (1) whether the Nichols timely appealed the dismissal of their negligence claim against Peterson; (2) whether the statute of limitations bars the Nichols' negligence claim; (3) whether the trial court erred in concluding that Peterson did not owe an independent tort duty to the Nichols for its participation in constructing a new roof on their home; and (4) whether the Nichols provided evidence to create a genuine issue of material fact as to each element of their negligence claim.

¶2 We hold that (1) the Nichols timely appealed the trial court's ruling because it was not a final appealable judgment until after the trial court's decision on the motion for reconsideration; (2) the Nichols have raised genuine issues of material fact as to whether the discovery rule would toll the statute of limitations and permit their negligence claim; (3) the trial court erred in concluding that Peterson did not owe an independent tort duty to the Nichols related to its work on the Nichols' roof; and (4) the Nichols have raised genuine issues of material fact on their negligence claim as to breach, proximate cause, and damages.

¶3 Accordingly, we reverse and remand.

FACTS¹

¶4 In 2001, the Nichols purchased a residence in Shelton and lived there with their four children. In 2006, the Nichols noticed a leak in their roof and decided to replace it, contracting with Home Depot to install the new roof. Home Depot hired various subcontractors to perform the work, including Peterson.

¶5 On October 9, 2006, Peterson went to the Nichols' home and removed the existing roof and shingles. Peterson also installed flashing, made cuts into the roof peak for ridge vents, and installed felt underneath the shingles. After completing their work, Peterson employees left the roof exposed to the wind and rain. The Nichols called Home Depot and complained, and the company sent an employee to tarp the roof. Home Depot also removed Peterson from the job. Working with other subcontractors, Home Depot completed the roof's construction.

¶6 On December 7, 2011, David² went up to the attic and found white patches of mold and wet wood. The mold posed a health hazard and required the Nichols to move out of their home. The Nichols sued Home Depot, Peterson, and other subcontractors that had worked on their roof. The specific claim against Peterson was for negligent performance of work that caused personal injuries, property damage, and loss of use. Vince McClure, the Nichols' construction defect expert, opined that the improper installation of the roof and water exposure caused the extensive damage and mold growth in their home. Physician statements and medical records suggested that some of the Nichols' children had suffered various skin infections related to being exposed to the mold as well as mental trauma from disruption in their living situation.

¶7 Home Depot moved for partial summary judgment on the Nichols' claims. Of relevance to this appeal, Home Depot argued that Washington does not recognize a cause of action for negligent construction and that the Nichols' negligence claim was barred under the independent duty doctrine. Home Depot also argued that there was no evidence to support special damages for medical expenses as to the Nichols' children. Peterson joined in Home Depot's motion for partial summary judgment to the extent it was applicable to it. In addition to Home Depot's arguments, Peterson argued that the Nichols' negligence claim was time barred and that there was no evidence to support the element of proximate cause.

¶8 The trial court granted summary judgment in favor of Home Depot on the Nichols' negligence claim on the basis that no independent duty existed apart from the contract. Although Peterson had joined in Home Depot's motion for summary judgment on the grounds that it owed no independent duty to the Nichols, the trial court never directly addressed the issue as it pertained to Peterson. The trial court denied Peterson's summary judgment motion on the issue of proximate cause, "except as otherwise set forth above with relation to defendant [The Home Depot]." Report of Proceedings (RP) at 56. At this point, it was unclear whether a negligence claim against Peterson still existed.³ After the summary judgment rulings, Home Depot and the Nichols settled, and Home Depot is not part of this appeal.

¶9 Peterson moved the trial court for reconsideration, arguing that the only claim left against it was a Consumer Protection Act (CPA)⁴ claim, which the Nichols had failed to establish. The Nichols contended that they never alleged any CPA claim. At the hearing on reconsideration, Peterson asked the court to dismiss it from the case, since there were no remaining claims against it. The Nichols objected to dismissing Peterson from the case, arguing that their negligence claim still remained. After hearing argument, the trial court stated that its earlier ruling on the parties' summary judgment motions had only dismissed the negligence claim as to Home Depot. However, the court reconsidered its position and granted the motion for summary judgment in Peterson's favor as it related to negligence.

¶10 The Nichols appeal.

ANALYSIS

I. STANDARD OF REVIEW

¶11 "We review de novo an order granting summary judgment, performing the same inquiry as the trial court." Peoples v. Puget Sound's Best Chicken!, Inc. , 185 Wash.App. 691, 695, 345 P.3d 811 (2015). "A party moving for summary judgment bears the initial burden of showing the absence of an issue of material fact." Kofmehl v. Baseline Lake, LLC , 177 Wash.2d 584, 594, 305 P.3d 230 (2013). "We view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences from the evidence in that party's favor." Puget Sound's Best Chicken! , 185 Wash.App. at 695, 345 P.3d 811. "Summary judgment is appropriate where the ‘pleadings, depositions, answers to interrogatories, and admissions on file,’ along with any affidavits, show that no material issues of fact exist and that the moving party is entitled to judgment as a matter of law." Id. (quoting CR 56(c) ).

¶12 "We review a trial court's denial of a motion for reconsideration for abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." River House Dev. Inc. v. Integrus Architecture, PS , 167 Wash.App. 221, 231, 272 P.3d 289 (2012). "A decision is manifestly unreasonable if the trial court takes a view that no reasonable person would take." Clipse v. Commercial Driver Servs., Inc. , 189 Wash.App. 776, 787, 358 P.3d 464 (2015), review denied , 185 Wash.2d 1017, 367 P.3d 1084 (2016). "[A] trial court's decision rests on untenable grounds or reasons if the trial court applies the wrong legal standard or relies on unsupported facts." Id . If the trial court's decision to grant or deny reconsideration is "contrary to law," the trial court has abused its discretion. Singleton v. Naegeli Reporting Corp. , 142 Wash.App. 598, 612, 175 P.3d 594 (2008) (citing CR 59(a)(7) ).

II. REVIEWABILITY

¶13 Peterson argues that the Nichols failed to timely appeal the trial court's initial summary judgment ruling, which precludes appellate review. We disagree.

¶14 Generally, a notice of appeal must be filed within 30 days of the entry of a final appealable judgment. RAP 5.2(a) ; Fox v. Sunmaster Prod., Inc. , 115 Wash.2d 498, 502, 798 P.2d 808 (1990). The trial court's summary judgment order was dated April 3, 2015, and its order granting reconsideration in favor of Peterson was dated May 11. The Nichols filed their notice of appeal on June 9. Peterson maintains that because the Nichols did not appeal the summary judgment order within the 30 day time limit, it is barred from raising any issues pertaining to the summary judgment rulings.

¶15 However, the trial court's summary judgment order was not a final appealable judgment. In cases involving multiple parties or multiple claims for relief,

an appeal may be taken from a final judgment that does not dispose of all the claims or counts as to all the parties, but only after an express direction by the trial court for entry of judgment and an express determination in the judgment, supported by written findings, that there is no just reason for delay.... In the absence of the required findings, determination and direction, a judgment that adjudicates less than all the claims or counts, or adjudicates the rights and liabilities of less than all the parties, is subject only to discretionary review until the entry of a final judgment adjudicating all the claims, counts, rights, and liabilities of all the parties.

RAP 2.2(d) ; see also CR 5...