Sime v. Tvenge Associates Architects & Planners, P.C., 920009

• Decision Date: 25 June 1992
• Docket Number: No. 920009,920009
• Citation: 488 N.W.2d 606
• Parties: Florence SIME and Corbin L. Sime, Plaintiffs and Appellants, v. TVENGE ASSOCIATES ARCHITECTS & PLANNERS, P.C.; Schmit, Smith & Rush, Inc., Defendants and Appellees, Munro Contractors, Inc. and Custom Aire, Inc., Defendants. Civ.
• Court: North Dakota Supreme Court

Page 606

488 N.W.2d 606

Florence SIME and Corbin L. Sime, Plaintiffs and Appellants, v. TVENGE ASSOCIATES ARCHITECTS & PLANNERS, P.C.; Schmit Smith & Rush, Inc., Defendants and Appellees Munro Contractors, Inc. and Custom Aire, Inc., Defendants.

Civ. No. 920009.

Supreme Court of North Dakota.

June 25, 1992.

Butz & Kraft, P.C., Rugby, for plaintiffs and appellants, argued by Carlan J. Kraft, Rugby.

Tschider & Richau, Bismarck, for defendant and appellee Tvenge Associates Architects & Planners, P.C., argued by Gregory W. Tschider, Jr., Bismarck.

Pringle & Herigstad, P.C., Minot, for defendant and appellee Schmit, Smith & Rush, argued by Thomas A. Wentz, Jr., Minot, third year law student, appearance by Lee J. Balerud.

ERICKSTAD, Chief Justice.

Florence and Corbin L. Sime appeal from the order of the District Court for Rolette County, granting the defendants' motion for summary judgment of dismissal. We affirm.

Florence and Corbin Sime filed this action on January 29, 1990, alleging that the defendants Tvenge Associates Architects & Planners, P.C., and Schmit, Smith & Rush Inc. (SSR), had negligently designed a ventilation system and planned for its location in the San Haven State Institution, causing outside vehicle exhaust fumes from an unloading ramp to invade the building, resulting in injuries to Florence from carbon monoxide inhalation. The complaint also alleged that the defendants Munro Contractors, Inc., and Custom Aire, Inc., had negligently constructed and installed the ventilation system resulting in the above alleged problems. In an answer dated February 9, 1990, Tvenge generally denied any liability and additionally asserted as a crossclaim that, in the event Tvenge was held liable, SSR should have to indemnify Tvenge for any defect in the mechanical system as Tvenge had contracted with SSR to design the mechanical systems for the building. In an answer dated February 28, 1990, SSR generally denied liability, asserted various affirmative defenses including that the applicable statute of limitations had run, generally denied Tvenge's crossclaim, and asserted as a crossclaim that Tvenge should indemnify SSR for any design defect. On May 22, 1991, an amended complaint was filed asserting that Florence Simes had not only been exposed to the vehicle exhaust fumes in February or March of 1984, but was additionally exposed thereafter through May of 1985. On September 26, 1991, the trial court granted the defendant Tvenge's motion to amend Tvenge's answer to include the affirmative defense that the applicable statute of limitations had run. Subsequently, SSR moved for summary judgment of dismissal on the grounds that the Simes' action was barred by the two-year statute of limitations for professional malpractice. Tvenge also moved for summary judgment of dismissal on the grounds that the Simes' action was barred by the applicable statute of limitations for professional malpractice. The Simes thereafter moved the trial court to allow them to amend their complaint to add claims for products liability based on theories of implied warranty and strict liability. On November 18, 1991, the trial court denied the Simes' motion to amend their complaint to add products liability claims based on implied warranty and strict liability, and granted the defendants' motions for summary judgment of dismissal, and in all things dismissed the action. This appeal followed.

We must first determine whether or not this case is properly before us. Although, generally speaking, an order granting summary judgment, or an order of dismissal, is not appealable under section 28-27-02, N.D.C.C., Simpler v. Lowrey, 316 N.W.2d 330, 333 (N.D.1982), the order in this case was obviously intended to be final, Cook v. Cook, 364 N.W.2d 74, 75 n. 1 (N.D.1985), and as it granted summary judgment dismissing all of the Simes' claims against Tvenge and SSR, it is appealable under section 28-27-02, N.D.C.C. Peterson v. Zerr, 443 N.W.2d 293, 296 (N.D.1989). ¹

Having found the trial court's order to be reviewable under section 28-27-02, we must additionally inquire whether or not Rule 54(b), N.D.R.Civ.P., must be complied with. Generally, where the trial court has made a determination on less than all of the claims in an action, this Court is without appellate jurisdiction. Id. In this case, the defendants, Munro Contractors, Inc., and Custom Aire, Inc., were apparently never formally dismissed from the action. However, SSR in its brief asserts that these defendants settled with the Simes and are no longer parties to this action. The record before us implicitly supports this. Therefore, we conclude that this appeal is properly before us.

Initially, we note the standards for granting motions for summary judgment. Under Rule 56, N.D.R.Civ.P., summary judgment is appropriate when, after viewing the evidence in a light most favorable to the party opposing the motion, there are no genuine issues of material fact or conflicting inferences which can reasonably be drawn from undisputed facts, or when the only issues to be resolved are questions of law. Biesterfeld v. Asbestos Corporation of America, 467 N.W.2d 730, 735 (N.D.1991). Additionally, although the initial burden of establishing the absence of any genuine issues of material fact lies with the summary judgment movant, Binstock v. Tschider, 374 N.W.2d 81, 83 (N.D.1985), a party opposing the motion "may not rest upon the mere allegations or denials" contained in his or her pleadings. See Rule 56(e), N.D.R.Civ.P. Rather, "[a] party resisting a motion for summary judgment has the responsibility of presenting competent admissible evidence by affidavit or other comparable means." First National Bank of Hettinger v. Clark, 332 N.W.2d 264, 267 (N.D.1983). ²

On appeal, the Simes first assert that the two-year statute of limitations for malpractice actions contained in section 28-01-18(3) ³, N.D.C.C., should not apply to architects and engineers. The Simes argue that the test for whether or not the two-year statute of limitations for professional malpractice should apply, should turn on the work done and not the person's educational background.

In Johnson v. Haugland we defined malpractice as "the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result that injury, loss, or damage [occurs] to the recipient of those services or to those entitled to rely upon them." Johnson v. Haugland 03 N.W.2d 533, 538 (N.D.1981). Thus, in Jilek v. Berger Electric, Inc., 441 N.W.2d 660, 661 (N.D.1989), we concluded that "[s]imply stated, malpractice means professional negligence." ⁴

In delineating between professions and nonprofessional vocations, we have noted that "as a general rule, a profession is an occupation that requires a college degree in the specific field." Id. at 663. In this case, there is apparently no dispute that both defendants hold themselves out as providing services for which a college degree is required. See generally chapters 43-03 and 43-19.1, N.D.C.C. In his affidavit in support of summary judgment, Warren Tvenge details the extensive education needed to become a licensed architect. Furthermore, we have previously, at least implicitly, recognized that engineering is professional in nature. See Three Affiliated Tribes v. Wold Engineering, 419 N.W.2d 920 (N.D.1988). ⁵

Although, as the Simes apparently assert, the nature of the work done by architects and engineers may be markedly different from that of lawyers or doctors, we conclude that engineers and architects are professionals for purposes of the two-year statute of limitations for malpractice actions.

Having concluded that architects and engineers are professionals for purposes of section 28-01-18(3), N.D.C.C., our next inquiry focuses on whether or not the specific complained of act or omission was the failure to conform to professional standards of skill and learning. In other words, the question is whether the complained of act or omission is a matter of malpractice or is simply ordinary negligence.

" 'The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of ... science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of common everyday experience.' " Berger v. State, 171 A.D.2d 713, 567 N.Y.S.2d 275, 278 (1991) (quoting Kerker v. Hurwitz, 163 A.D.2d 859, 558 N.Y.S.2d 388 (1990)).

Although the general statute of limitations applies to actions based on ordinary negligence regardless of whether or not the defendant is a professional, one cannot escape the confines of the statute of limitations for malpractice actions by simply couching the complaint in terms of ordinary negligence. Johnson v. Haugland, 303 N.W.2d at 538. It is "the actual nature of the action" or the actual "nature of the subject matter" which is determinative. Id.

However, the Simes apparently do not dispute the fact that their injuries were caused by the defendants' alleged failure to conform to the professional standards of skill and learning of architects and engineers. Rather, they assert that the action is not one of "malpractice," within the meaning of section 28-01-18(3), N.D.C.C., because there was never a professional relationship between the defendants and themselves. In support of their position, the Simes cite such cases as: Cubito v. Kreisberg, 69 A.D.2d 738, 419 N.Y.S.2d 578, 580 (1979) ("malpractice in the statutory sense describes the negligence of a professional toward the person for whom he rendered a service, and that an action for malpractice springs from the correlative rights and duties assumed by the parties through the relationship. On the other hand, the wrongful conduct of the...