Shirkey v. Mackey

• Citation: 399 S.E.2d 868,184 W.Va. 157
• Decision Date: 29 November 1990
• Docket Number: No. 19558,19558
• Court: Supreme Court of West Virginia
• Parties: Emogene Peaslee SHIRKEY and David Shirkey v. Harold MACKEY, d/b/a Mackey Contractors.

Page 868

399 S.E.2d 868

184 W.Va. 157

Emogene Peaslee SHIRKEY and David Shirkey v. Harold MACKEY, d/b/a Mackey Contractors.

No. 19558.

Supreme Court of Appeals of West Virginia.

Nov. 29, 1990.

Syllabus by the Court

West Virginia Code § 55-2-6a (1983) sets an arbitrary time period after which no actions, whether contract or tort, may be initiated against architects and builders. Pre-existing statutes of limitation for both contract and tort actions continue to operate within this outside limit.

C. Elton Byron, Jr., Abrams, Byron, Henderson & Richmond, Beckley, for Emogene Peaslee Shirkey and David Shirkey.

James M. Brown, File, Payne, Scherer & Brown, Beckley, for Harold Mackey.

BROTHERTON, Justice:

The appellants, Emogene Peaslee Shirkey and David Shirkey, appeal from the June 14, 1989, order of the Circuit Court of Raleigh County, West Virginia, which granted summary judgment in favor of the appellee, Harold Mackey, d/b/a Mackey Contractors, and dismissed the appellants' action on the ground that the ten-year statute of limitations contained in W.Va.Code § 55-2-6a (1983) had run.

On March 10, 1976, Harold Mackey purchased a lot in Morgan Hills Subdivision in Raleigh County from Blackburn-Patteson Realty. Mr. Mackey built a home on the property and sold it to Clyde and Delores Ingram on September 16, 1976. The Ingrams sold the property to Robert and Emogene Peaslee on December 19, 1978. The Peaslees subsequently divorced, however, and by deed dated October 12, 1979, Robert Peaslee conveyed his one-half undivided interest in the property to Emogene Peaslee, who later married David Shirkey.

On August 8, 1988, the Shirkeys filed suit against Harold Mackey, d/b/a Mackey Contractors, seeking damages for negligence and "breach of [an] implied warranty of habitability and fitness for the use of said premises as a family home." The appellants alleged that in March, 1988, they discovered a latent defect in the construction of the home. Specifically, the Shirkeys claimed to have determined that the home was built on organic fill material ¹ containing tree roots, stumps, and limbs which was not properly compacted and that as a result, the home "has settled, cracked and been damaged to such an extent" that future expenses to repair, rebuild, and replace would amount to $25,000. Citing depreciation in the value of the property of $25,000 and "loss of use and enjoyment," "great mental anguish," and "embarrassment and inconvenience" for which they sought "reasonable compensation," the Shirkeys demanded judgment against Mr. Mackey in the amount of $75,000, plus interest, costs, and reasonable attorney fees.

On February 14, 1989, the appellee filed a motion for summary judgment, arguing that the complaint failed to state a cause of action; that there was a lack of privity between the contractor and the subsequent owners; and that the entire cause of action was barred by the statute of limitations contained in W.Va.Code § 55-2-6a. Following the arguments of counsel and the filing of supporting memoranda by the parties, the Circuit Court of Raleigh County granted the appellee's motion for summary judgment, finding that the appellants filed suit outside of the time period provided by W.Va.Code § 55-2-6a and that the "discovery rule" had no application to the facts of this case or to W.Va.Code § 55-2-6a. For the reasons discussed below, we affirm the order of the Circuit Court of Raleigh County.

Commonly referred to as an "architects and builders statute," W.Va.Code § 55-2-6a limits the time within which actions can be brought against architects engineers, and others in the construction industry who are responsible for "the planning, design, surveying, observation or supervision of any construction or the actual construction of any improvement to real property." Basham v. General Shale, 180 W.Va. 526, 377 S.E.2d 830, 833 (1988). Specifically, the statute provides, in part, that "[n]o action, whether in contract or in tort, for indemnity or otherwise ... may be brought more than ten years after the performance or furnishing of such services or construction...."

The appellants contend that if the ten-year statute of limitations is applied in this case, they are "powerless to protect themselves" and thus, they urge that this Court do what the lower court would not and apply the "discovery rule" to the facts of this case. The discovery rule "is an exception to a statute of limitations which delays the running of the statute until such time as the plaintiff knew, or reasonably should have known, of the injury and its cause." Id. 180 W.Va. at 531, 377 S.E.2d at835.

Although we had previously applied the discovery rule to products liability tort actions in Hickman v. Grover, 178 W.Va. 249, 358 S.E.2d 810 (1987), we declined to extend its application to the type of case presented by the petitioners in Basham, stating that:

[W]here the only loss suffered is an economic loss, as in the case of losses which are associated with a "bad bargain," the injured party must pursue the remedies provided in the Uniform Commercial Code, subject to the statute of limitations contained therein. We will not circumvent the Uniform Commercial Code's remedial scheme by applying the discovery rule to a contract action in a manner not prescribed by the Code.

Basham, 180 W.Va. at 531, 377 S.E.2d at 835. Like the petitioners in Basham, the appellants in the case now before us have alleged both tort and contract causes of action. Once again, however, we cannot extend the discovery rule to apply to the facts of this case.

To apply the discovery rule under facts such as these would negate the entire purpose of the architects and builders statute. West Virginia Code § 55-2-6a explicitly states that "[n]o action, whether in contract or in tort ... may be brought more than ten years after the performance or furnishing of such services or construction.... The period of limitation ... shall not commence until the improvement to the real property in question has been occupied or accepted by the owner of the real property, whichever occurs first." (Emphasis added.)

In discussing the purpose of architects and builders statutes, other courts have noted that it is only through the straightforward application of a given limitation period, regardless of the date of injury, that the statutes acquire a "substantive quality." For example, in Lamb v. Wedgewood South Corp., 308 N.C. 419, 302 S.E.2d 868, 872 (1983), the court noted an opinion in which its ...