Walsh v. Halteman
| Decision Date | 29 April 1980 |
| Docket Number | No. 1-180A7,1-180A7 |
| Citation | 403 N.E.2d 894 |
| Parties | Lawrence R. WALSH, and Joan M. Walsh, Appellants (Plaintiffs Below), v. Joseph S. HALTEMAN, and Halteman Homes, Inc., Appellees (Defendants Below). |
| Court | Indiana Appellate Court |
John T. Lorenz, Kightlinger, Young, Gray & De Trude, Indianapolis, for appellants.
Mark C. Stamper, Wisehart & Stamper, Middletown, for appellees.
Plaintiff-Appellants Lawrence R. Walsh and Joan M. Walsh (Walsh) brought suit against the Defendant-Appellees, Joseph Halteman and Halteman Homes, Inc. (Halteman), alleging negligence, breach of implied warranty and strict liability in the construction of their house. The alleged liability was for destruction of the house by fire on December 8, 1976. Halteman answered and raised as an affirmative defense that the action was barred by the statute of limitations for deficiencies in construction of improvement of real estate. Ind. Code 34-4-20-2. 1 Summary judgment was granted on the basis that the statute of limitations was effective against Walsh and that the one year, one month and nineteen days left in the ten year period in which Walsh could file the suit was reasonable.
We affirm.
The undisputed facts reveal the following chronology
May 31, 1968 -- House substantially completed
December 8, 1976 -- Fire
April 12, 1977 -- IC 34-4-20-2 amendment to cover
construction deficiencies made
effective
May 31, 1978 -- Expiration of ten years after
substantial completion.
October 18, 1978 -- Suit commenced.
Walsh raises three issues for review. The first is whether the statute was meant to apply to causes of action which had already accrued before its passage or, in other words, the statute was not meant to be applied retroactively. The second issue is whether the trial court erred in holding, as a matter of law, that the period of one year and approximately two months (expiration of the ten year statute of limitations) was reasonable, but that one year and six months (suit commenced) was not. The third issue is whether the determination of "reasonable time" was a determination to be made by a fact finder or as a matter of law. We will treat the issues together.
We assume for purposes of this appeal that Walsh timely filed suit, but for IC 34-4-20-2.
It is well-settled in this State that the statute of limitations in force at the time of suit governs, even though it shortens or lengthens the period of limitations. Sansberry v. Hughes, (1910) 174 Ind. 638, 92 N.E. 783; Green v. Karol, (1976) Ind.App., 344 N.E.2d 106, 112.
Sansberry, supra 174 Ind. at 641, 92 N.E. at 784 states:
That which courts look to in the application of the limitation statute, in force at the time suit is brought, is not whether the statute will be prospective or retrospective in operation, but, whether the complaining party had a reasonable time, after the taking effect of the present statute, in which to enforce his right.
In Sansberry the appellant purchased land at a tax sale in 1900. He obtained and had a deed recorded in 1906. In 1903, a statute was made effective which stated that a person must obtain and record a deed in a tax purchase of land within four years of the date of sale, or forfeit his lien. This changed the law by shortening the time from fifteen years. The Court stated at 641-42, 92 N.E. at 784-85:
The enactment reflects the legislative judgment, that 15 years is an unreasonable time for a party to play hide and seek with a lien upon his neighbor's title, to the probable embarrassment and injury of the owner.
The record shows that appellant had about one year after the taking effect of the statute of 1903 in which to take out and record his deed. This time was abundantly reasonable, and having failed to act, or show excuse for not acting, his right must be held to come within the operation of the statute.
We think that Walsh misconstrues the trial court's task in examining the effect of the shortening of the time period. 2 It is the Legislature that made the determination of what is a proper time here ten years after construction. The judicial task is to examine whether the statute of limitations which intervened between accrual of the cause of action and the commencement of the suit works a misjustice upon the party affected by it. See Wilmont v. City of South Bend, (1943) 221 Ind. 538, 48 N.E.2d 649; McClain v. Chavez, (1978) Ind.App., 383 N.E.2d 414. We do not see the judicial task as determining what is a reasonable time in which the plaintiff can bring suit (unless, of course, he is substantially or totally barred by the intervening statute), but rather to determine whether the new legislative framework provides the plaintiff at bar a reasonable time in which to sue. It is clearly a question of law for the trial court to determine whether the new legislative framework provides this plaintiff a reasonable time in which to sue. Being a question of law for the trial court to determine, and if the basic facts are not in dispute, it is a proper determination for summary judgment. Regents of the University of California v. Hartford Accident and Indemnity Co., (1976) 59 Cal.App.3d 675, 131 Cal.Rptr. 112, vacated on other grounds (1978), 21 Cal.3d 624, 147 Cal.Rptr. 486.
We are impressed by the consideration of a similar situation in Regents of the University of California, supra. In that case the owner of a building brought action against a contractor's surety for latent defects in a building built by the contractor for the owner. The facts disclose that the building was substantially completed on September 2, 1962. On March 4, 1972, a statute similar to the one here was made effective. In January of 1972, the owner discovered deterioration in the structure due to what he claimed was defective construction. The owner...
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