Vigil v. Spokane County

• Decision Date: 13 February 1986
• Docket Number: No. 6820-0-III,6820-0-III
• Citation: 714 P.2d 692,42 Wn.App. 796
• Parties: Richard VIGIL and Jeaneene Vigil, husband and wife, Appellants, v. SPOKANE COUNTY; Spokane County Health District, Defendants, and W.R. Keimig, Respondent.
• Court: Washington Court of Appeals

Page 796

42 Wn.App. 796

714 P.2d 692

Richard VIGIL and Jeaneene Vigil, husband and wife, Appellants, v. SPOKANE COUNTY; Spokane County Health District, Defendants, and W.R. Keimig, Respondent.

No. 6820-0-III.

Court of Appeals of Washington,

Division 3, Panel One.

Feb. 13, 1986.

Brian C. Balch, Powell & Morris, Spokane, for appellants.

Harold J. Triesch, Spokane, for respondent.

McINTURFF, Judge.

Richard and Jeaneene Vigil (the Vigils) appeal a summary judgment which dismissed their cause of action against William Keimig for breach of the implied warranty of habitability on statute of limitation grounds. We reverse.

In late 1975, the Vigils purchased a new home from its builder, Mr. Keimig. In early 1976, a small amount of clear, odorless water backed up in a drain in the basement. Mr. Vigil called Mr. Keimig, who came to the house with a backhoe operator, dug a hole in the yard, and filled it with gravel. While Mrs. Vigil observed this activity from a window in the house, she did not make a specific inquiry as to what they were doing, nor did Mr. Keimig give an explanation to her or Mr. Vigil. For one day in early 1977, a small amount of clear water again puddled around the Vigils' basement drain. The Vigils took no action as the problem disappeared within a short time.

Then in early 1979, raw sewage backed through the basement drain. A friend of the Vigils who was a plumber advised them they had a faulty drain field. Mr. Vigil then examined health district records and learned that when Mr. Keimig had applied for a permit to install a septic tank during his construction of the house, the district had conditioned final approval on the County Engineer's checking a surface drainage problem. Handwritten comments on the application indicated:

Final permit not to be signed until an adequate dike area built to divert run off water on north side of Glenrose [the site of the construction] & east side of Havana.

Sewage permit release subject to confirmation from Co. Engineers['] office that barrel pit ditch area on south side of Glenrose will properly deliver surface run off water without overflowing across road into Glennair 9 development.

The Vigils attest that until their investigation in 1979, they assumed they were connected to the City sewer system; that 1979 was the first time the existence of a septic tank came to their attention.

The Vigils next attempted to work with County officials to correct the problem. On November 1, 1979, the Spokane County Engineer wrote Mr. Vigil, stating if he would widen and deepen the ditch on his property north of Glenrose Road so water could drain toward a culvert, the County would do necessary work on the roadway ditch on the south side of Glenrose to insure surface water drainage along Glenrose to the east. The work was done, but with no positive result. Mr. Vigil advised the County that it was his opinion that the action was taken too late; his backyard was already inundated with water.

In November 1980, Mr. Vigil installed a new drain field. That drain field has also failed, and at the time of Mr. Vigil's deposition in 1983, he still had raw sewage backing into his basement. In October 1981, the Vigils filed this action against Spokane County, Spokane County Health District, and Mr. Keimig. They alleged damages resulting from (1) the County's improper maintenance of the drainage ditch along Glenrose Road, (2) the Health District's approval of a sewage disposal permit for what the Vigils contend was a site unsuitable for such a system, and its failure to require fulfillment of the permit conditions, and (3) Mr. Keimig's breach of the implied warranty of habitability by constructing the home on an unsuitable location and by failing to fulfill the permit conditions.

In May 1983, the Superior Court granted (1) the Health District's motion for summary judgment and (2) a partial summary judgment in favor of the County. The Vigils settled their remaining claim against the County in September 1983. In September 1984, the court granted Mr. Keimig's motion for summary judgment on statute of limitation grounds. The court, in its oral decision, stated:

It is argued that [the plaintiffs] ... didn't discover all of the elements of their cause of action until the spring of 1979, when there was a heavy runoff and all of the water came in more torrentially than before....

It seems to me that this action is stale.... [W]ith the attorneys conceding that ... the three-year statute of limitations applies, it seems clear to me, without dispute, that the plaintiffs had full knowledge of this problem when it arose in 1976....

The Vigils appeal the dismissal of Mr. Keimig.

First, we note Mr. Keimig's argument, offered for the first time on appeal, that we should apply the 2-year catch all statute of limitation, RCW 4.16.130, rather than the 3-year statute for injuries to the "person or rights of another", RCW 4.16.080(2). The Superior Court applied the 3-year statute, stating the parties "conceded" its applicability. In an analogous situation, the court has held that an erroneous instruction to which the parties do not except becomes the law of the case. Garcia v. Brulotte, 94 Wash.2d 794, 797, 620 P.2d 99 (1980); Horwath v. Washington Water Power Co., 68 Wash.2d 835, 845, 416 P.2d 92, amended, 420 P.2d 216 (1...