Smith v. Showalter

• Decision Date: 17 March 1987
• Docket Number: No. 7644-0-III,7644-0-III
• Citation: 47 Wn.App. 245,734 P.2d 928
• Parties: Kenneth A. SMITH and Jane Doe Smith, his wife, Appellants, v. Gerald SHOWALTER and Rose Marie Showalter, individually and as a marital community, Respondents.
• Court: Washington Court of Appeals

Page 245

47 Wn.App. 245

734 P.2d 928

Kenneth A. SMITH and Jane Doe Smith, his wife, Appellants, v. Gerald SHOWALTER and Rose Marie Showalter, individually and as a marital community, Respondents.

No. 7644-0-III.

Court of Appeals of Washington Division 3, Panel Two.

March 17, 1987.

J. Scott Timmons, Timmons, Hames & Hollenbeck, Kennewick, for appellants.

George Fearing, Leavy, Schultz & Sweeney, Pasco, for respondents.

THOMPSON, Acting Chief Judge.

Gerald and Rose Marie Showalter's motion for summary judgment was granted on the basis that any cause of action the Smiths might have had was barred by the builders' statute of repose, RCW 4.16.310. The Smiths appeal, contending under the facts of this case, the action is not barred. We agree and reverse.

In 1975, the Showalters began construction on their home in Kennewick, Washington. When first occupied by them in 1975, it was approximately 50 percent completed. They performed all construction work themselves, including installation of the electrical wiring. In July 1975, a permit was issued for an electrical "service only" panel, allowing limited use for a shop, or construction of the home. It is disputed whether any further electrical permits were given or inspections conducted by appropriate authorities.

In 1977, the Showalters added a utility room and a living room and, though they were not finished, began using them. The Showalters continued work on the home. On April 5, 1981, the home was sold to the Smiths and was approximately 90 percent complete. The utility room was still unfinished at the time of sale, but its electrical wiring was complete. When the Smiths purchased the home, they were not told that the Showalters were the builders. Nor were the Smiths informed the Showalters had not received final building or electrical inspections, or that the wiring was substandard.

On May 18, 1984, the home was destroyed by fire. Kenneth A. Sugden, the Smiths' expert witness, inspected the fire scene and was of the opinion the fire began in an outlet on the west wall of the utility room. His report, challenged for the first time on appeal, further states: the outlet and its circuit breaker were substandard given the size of the wiring; nonstandard workmanship was apparent; only an electrical service permit was issued; no further electrical permits for the utility room were issued; and there were The Smiths brought suit against the Showalters, alleging negligent installation of electrical wiring, failure to meet electrical building code requirements, and lack of proper inspection for residential use caused the fire and resulting damage. The Showalters moved for summary judgment, contending suit was barred by RCW 4.16.300-.310, the builder/contractor 6-year statute of repose. Their motion was granted and this appeal ensued.

                no electrical inspections of the home.   A report by the Department of Labor and Industries, Electrical Inspection Section, confirms that only a "service" was approved in 1975, and that interior wiring had not been inspected or approved
                

The Smiths' cause of action falls within the ambit of RCW 4.16.300-.310; it involves a claim or cause of action arising from the construction of an improvement upon real property. To determine whether the statute of repose in RCW 4.16.310 bars the Smiths' claim, a 2-step analysis is necessary. First, we must determine whether the cause of action accrued within 6 years of "substantial completion of construction, or within six years after such termination of services, whichever is later". Second, we must determine whether the Smiths filed suit thereafter within the time allowed by the applicable statute of limitation. If the cause of action does not accrue within 6 years of substantial completion of construction or termination of services, whichever is later, the statute bars commencement of the suit. Del Guzzi Constr. Co. v. Global N.W., Ltd., 105 Wash.2d 878, 883, 719 P.2d 120 (1986). The question presented here is when the 6-year period began to run on the underlying claim or cause of action.

The trial court determined as a matter of law RCW 4.16.300-.310 barred the Smiths' action. It did so based on the view that the 6 years began when the utility room was wired and occupied in 1977. The Smiths contend substantial completion or termination of construction services did not occur until 1981, and thus the time period did not begin until that latter date. We agree.

Summary judgment is proper only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Wilson v. Steinbach, 98 Wash.2d 434, 656 P.2d 1030 (1982). Interpretation of a statute is a matter of law. Condit v. Lewis Refrigeration Co., 101 Wash.2d 106, 676 P.2d 466 (1984). In its ruling, the trial court considered affidavits of the Showalters, the Smiths, and Mr. Sugden, as well as a certified copy of a recorded statement made by the Showalters to an insurance carrier. This court considers the same evidence, and all reasonable inferences therefrom, in favor of the nonmoving party. Wilson v. Steinbach, supra.

As a preliminary matter, the Showalters argue this court should not consider the hearsay statements contained in Kenneth Sugden's affidavit and attachments thereto regarding failure to comply with electrical permit and inspection requirements. They argue CR 56(e) prevents consideration of such statements on summary judgment if the statements are not based on personal knowledge and are not admissible at trial. That is true. State v. Dan J. Evans Campaign Comm., 86 Wash.2d 503, 506, 546 P.2d 75 (1976). However, where no objection or motion to strike is made prior to entry of summary judgment, a party is deemed to waive any deficiency in the affidavit. Lamon v. McDonnell Douglas Corp., 91 Wash.2d 345, 352, 588 P.2d 1346 (1979); Greer v. Northwestern Nat'l Ins. Co., 36 Wash.App. 330, 338, 674 P.2d 1257 (1984). The record does not reveal an objection or motion to strike any portion of the Sugden affidavit or attachments prior to the trial court's entry of judgment. Therefore, the Showalters have waived any alleged deficiency.

The Smiths first argue that the Showalters continued to work on the home until 1981 and the statute allows that later date as the beginning of the 6-year period. In interpreting a statute, we must ascertain and give effect to the intent and purpose of the Legislature as expressed in the act as a whole. In doing so, we first look to the language of the statute. Condit, 101 Wash.2d at 110, 676 P.2d 466. The relevant portion of RCW only during the period within six years after substantial completion of construction, or during the period within six years after the termination of the services enumerated in RCW 4.16.300, whichever is later. The phrase "substantial completion of construction" shall mean the state of completion reached when an improvement upon real property may be used or occupied for its intended use. Any cause of action which has not accrued within six years after such substantial completion of construction, or within six years after such termination of services, whichever is later, shall be barred.

4.16.310 states a claim or cause of action must accrue:

(Italics ours.)

RCW 4.16.300 mentions design, planning, surveying, architectural, constructional, or engineering services. "Each of the words used refers to some aspect of the construction or repair of the building." Condit, at 111, 676 P.2d 466. Therefore, "termination of services" would refer to all construction activities engaged in by the Showalters, and by their own admission those activities did not end until shortly before the home...