Will v. Frontier Contractors, Inc.

• Citation: 89 P.3d 242,121 Wash.App. 119
• Decision Date: 06 April 2004
• Docket Number: No. 30177-6-II.,30177-6-II.
• Parties: John WILL, Appellant, v. FRONTIER CONTRACTORS, INC., Respondent,
• Court: Court of Appeals of Washington

89 P.3d 242

121 Wash.App. 119

John WILL, Appellant, v. FRONTIER CONTRACTORS, INC., Respondent,

No. 30177-6-II.

Court of Appeals of Washington, Division 2.

April 6, 2004.

Richard Francis Dejean, Attorney at Law, Sumner, Counsel for Appellant.

Gregory G Wallace, O'Brien Hutson & Boe, Seattle, Counsel for Respondent.

SEINFELD, J.

John Will sued Frontier Contractors for negligence, breach of implied warranty of habitability, and breach of contract. The trial court granted summary judgment to Frontier on the first two claims, finding that they were time barred. The court later dismissed the contract claim based on Will's failure to serve Frontier with the amended complaint that contained this cause of action. Finding no issue of material fact or error of law as to the running of the statute of limitations, we affirm the summary judgment. But holding that the failure to serve Frontier did not constitute willful misconduct under CR 5, we reverse the dismissal of the contract claim and remand for trial.

FACTS

Frontier Contractors built a house that it sold to Will in 1994. In February 1996, Will began to experience severe flooding on his property, caused in part by runoff from the construction of a school on adjoining property. The flooding continued intermittently through June 1999.

Will sued Frontier in May 2000, alleging that Frontier had violated an implied warranty of habitability and had been negligent. Frontier's answer contained the following statement: "Will has alleged he sustained damages ... as a result of the acts, omissions, negligence and breaches of contract by defendant Frontier." Clerk's Papers (CP) at 46.

In April 2002, Frontier moved for summary judgment, asserting that the implied warranty of habitability and general negligence claims were time barred, and that Washington law did not recognize his negligent construction claim. Will then moved to amend his complaint to include a cause of action for breach of contract, arguing that his original complaint included this cause of action but, as Frontier had not mentioned this claim in its motion for summary judgment, he wanted to specifically include it.

On May 15, 2002, Will served the court and Frontier with a proposed amended complaint containing the breach of contract claim. Frontier responded to the motion to amend by arguing that it "had absolutely no notice that Will intending [sic] to argue that Frontier breached the contract" and that it would be unduly prejudiced if the court granted the motion because it did not have sufficient notice to prepare a defense for a new claim before the June 2002 trial date. CP at 134.

On May 17, 2002, the trial court granted Frontier's motion for summary judgment and it denied Will's motion to amend. But on Will's motion to reconsider, the court granted him leave to amend his complaint.

Frontier requested a copy of the amended complaint on four separate occasions. In response to the fourth request in December 2002, Will sent Frontier a faxed copy of the same amended complaint that Will had served on Frontier on May 15, 2002. Frontier then wrote Will that the May 15 amended complaint was not acceptable because it listed defendants who were no longer part of the action and it retained claims that the trial court had dismissed. When Will did not respond to this letter or further amend his complaint, Frontier moved to dismiss the case. The trial court granted Frontier's motion.

Will appeals, arguing that (1) the trial court erred in finding that his implied warranty of habitability and negligence claims were time barred because he sustained continued flooding until 1999; (2) the rules did not require that he serve a revised amended complaint on Frontier after the trial court granted him leave to amend; and (3) even if the rules did require service of the amended complaint, his failure to serve did not warrant dismissal under these facts.

ANALYSIS

I. SUMMARY JUDGMENT

The trial court found that the negligence and implied warranty claims were time barred because more than three years had elapsed between the 1996 flooding of Will's property and Will's initiation of this lawsuit in 2000. Will argues that because he continued to sustain flooding damage over a number of years, it was error to rule that his claim accrued in 1996.

We review a summary judgment ruling de novo, engaging in the same inquiry as the trial court. Lybbert v. Grant County, 141 Wash.2d 29, 34, 1 P.3d 1124 (2000). Summary judgment is appropriate where "there is no genuine issue as to any material fact and [] the moving party is entitled to a judgment as a matter of law." CR 56(c). We review all reasonable facts and inferences in the light most favorable to the nonmoving party. Clements v. Travelers Indem. Co., 121 Wash.2d 243, 249, 850 P.2d 1298 (1993).

Will relies on continuing trespass case law to support his argument that the court should have considered the ongoing nature of his property damage in determining when his cause of action accrued. "In a case of continuing trespass, `suit for damages may be brought for any damages ... occurring within the 3-year period preceding suit."` Fradkin v. Northshore Util. Dist., 96 Wash.App. 118, 124, 977 P.2d 1265 (1999) (quoting Bradley v. American Smelting and Refining Co., 104 Wash.2d 677, 695, 709 P.2d 782 (1985)).

The continuing trespass statute of limitations does not apply to negligence and implied warranty of habitability claims; each of these causes of action has its own applicable statute of limitations. See RCW 4.16.080(1), (2); RCW 4.16.130. And the trial court dismissed Will's continuing trespass claim as part of its grant of summary judgment, a ruling that Will does not challenge here.¹

The statute of limitations for an implied warranty of habitability claim is three years. RCW 4.16.080(2)²; Stuart v. Coldwell Banker Commercial Group, Inc., 109 Wash.2d 406, 415, 745 P.2d 1284 (1987); see Vigil v. Spokane County, 42 Wash.App. 796, 799-800, 714 P.2d 692 (1986)

. The three years begins to run, generally, when the plaintiff suffers an injury. Architechtonics Constr. Mgmt., Inc. v. Khorram, 111 Wash. App. 725, 728, 45 P.3d 1142 (2002). But if there is a gap between the injurious act and the plaintiff's knowledge of the injury, the discovery rule may apply, in which case the statute of limitations accrues at "the time the homeowners actually knew or reasonably should have known of the defects that comprised the elements of their causes of action." Stuart, 109 Wash.2d at 415,

745 P.2d 1284; see also Architechtonics, 111 Wash.App. at 728,

45 P.3d 1142.

Will was aware of the flooding on his property in February 1996, but he waited until May 2000, over three years, to assert his implied warranty of habitability claim. Thus, the trial court did not err in concluding that the claim was time barred.

Will also challenges the trial court's dismissal of his negligence claims as time barred. Frontier interpreted Will's cause of action for negligence as presenting both a general negligence claim and a negligent construction claim. Because Washington law does not recognize a homeowner's cause of action for negligent construction, the trial court properly dismissed this claim. Stuart, 109 Wash.2d at 417, 745 P.2d 1284.

The statute of limitations governing a general negligence claim for injury to real property is the two year catchall provision in RCW 4.16.130.³ See Mayer v. City of Seattle, 102 Wash.App. 66, 75, 10 P.3d 408 (2000)

(applying the two year statute of limitations for negligent injury to real property) (citing White v. King County, 103 Wash. 327, 329, 174 P. 3 (1918)). A negligence claim accrues when the plaintiff suffers an injury unless, under the specific facts, the discovery rule applies. Mayer, 102 Wash.App. at 75-76,

10 P.3d 408. Again, because Will was aware of the flooding more than three years before he filed suit, the trial court did not err in ruling that Will's negligence claim was time barred.

II. SERVICE OF AMENDED COMPLAINT ON OPPOSING COUNSEL

The trial court granted Frontier's motion to dismiss Will's breach of contract claim because Will did not serve a copy of the amended complaint on Frontier after May 31, 2002, when the trial court granted him leave to amend. Will argues that he satisfied the service requirement by serving Frontier and the court with the proposed amended complaint before the May 31 hearing on his motion for leave to amend.

Courts have wide discretion in permitting parties to amend complaints. CR 15(a). But a party must effect service on the other party for "every pleading subsequent to the original complaint." CR 5(a). Amended complaints are pleadings within this rule. Sutton v. Hirvonen, 113 Wash.2d 1, 6-7, 775 P.2d 448 (1989).

Although no Washington opinion squarely addresses whether the moving party must serve the amended complaint on the opposing party after the court grants leave to amend, we do find limited authority interpreting the source of CR 15(a), Federal Rule of Civil Procedure (Fed.R.Civ.P.) 15. The Tenth Circuit has held that where the rule requires court permission to amend a complaint, service of an amended complaint "without leave of court or consent of the defendants is without legal effect." Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998); Baxter v. Strickland, 381 F.Supp. 487, 491 n. 4 (N.D.Ga.1974). But in Carter v. Church, the court notes that Fed.R.Civ.P. 15(a) does not specifically "address whether the amended pleading must be filed anew once the court grants leave to amend." 791 F.Supp. 297, 298 (M.D.Ga.1992). The Carter Court then interprets Fed.R.Civ.P. 15 as requiring "that an amended complaint be filed after leave to amend is granted unless the court specifically rules otherwise." 791 F.Supp. at 298.

The requirement of service of the amended complaint after the court approves it enhances procedural safeguards. By reviewing the proof of service, the court can ensure that all necessary parties...