Opinion
No. 52239-6-I, Consolidated with case No. 52287-6-I
Filed: December 20, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 00-2-17564-7. Judgment or order under review. Date filed: 03/28/2003. Judge signing: Hon. Helen L Halpert.
Counsel for Respondent(s), Tiffany Blofield, Winthrop Weinstine, 3000 Dain Rauscher Plaza, 60 Sixth St, Minneapolis, MN 55402.
Thomas H. Boyd, Winthrop Weinstine, 225 South Sixth St, Suite 3500, Minneapolis, MN 55402.
Stephen Murray Todd, Todd Wakefield, 1501 4th Ave Ste 1700, Seattle, WA 98101-3660.
Counsel for Appellant/Cross-Respondent, Scott A.W. Johnson, Stokes Lawrence PS, 800 5th Ave Ste 4000, Seattle, WA 98104-3179.
Mark Edward Maynes, Stokes Lawrence PS, 800 5th Ave Ste 4000, Seattle, WA 98104-3179.
Counsel for Respondent/Cross-Appellant, Michael James Bond, Attorney at Law, 2200 6th Ave Ste 600, Seattle, WA 98121-1849.
Ralph E. Jr Cromwell, Attorney at Law, 1000 2nd Ave Fl 38, Seattle, WA 98104-1094.
In June 1999 Naveen and Anu Jain purchased a home in Medina from Richard and Lourdes Fowler. The Jains later learned that the home had substantial water intrusion and dry rot, caused by leaks from the home's windows. The Jains filed suit against the Fowlers, claiming fraudulent concealment, fraud in the inducement of the Purchase and Sale Agreement, misrepresentation and breach of contract. The Jains also sued the window maker, Marvin Lumber Cedar Company. They attempted to amend their complaint to add mutual mistake but the trial court rejected their motion to amend. The Jains appeal the trial court's rejection of their motion to amend. The Jains also claim that the trial court erred by granting Marvin's motion on the pleadings, and by awarding attorney fees to the Fowlers under the Purchase and Sale Agreement. We affirm.
FACTS
In 1989-1990, Wilkens Construction built a three-story home on a 16,500 square-foot estate for Richard and Lourdes Fowler. The original painted wood frame windows were designed and manufactured by Marvin Lumber Cedar Company (Marvin). As construction of the home was being finalized in 1990, water damage occurred around the windows. Marvin attempted to fix the problem by caulking the windows at its own expense.
In 1992, water damage was again discovered around the windows. The damage included dry rot to the substructure surrounding the living room windows. Two of the windows in the living room had to be completely replaced. Marvin again paid for the repairs. Wilkens construction later conducted tests on the windows and concluded that 'the water was getting into the window frame and then getting from there to the internal frame and then into the wall.' Wilkens informed Marvin that the leakage would be an ongoing problem and that caulking would not work as a long-term solution. By 1996, water had leaked through the windows to a degree sufficient to stain the walls of the Fowlers indoor pool room and rot some of the wood framing in that area of the home. This time Marvin determined that there was significant dry rot to the home and that most of the sashes in the windows needed replacement. Marvin inspectors informed the Fowlers that they were familiar with the type of problem present in home. The inspectors acknowledged that other windows of the same type manufactured by Marvin, installed in damp regions around the United States had similar problems, and that Marvin had designed a new window that was specifically made to remedy the problem. Marvin agreed to replace the windows at its own cost. The Fowlers obtained two bids to replace the windows, at Marvin's request. One of the contractors who bid on the window replacement work was Ken Miller, who had been the Willkens Construction supervisor when the home was built. Miller was aware of the water leakage problem. Miller expressed concern to Marvin that simply replacing the sashes would not solve the problem, and that a more comprehensive approach was necessary. Marvin did not accept Miller's bid.
In June 1999 the Jains purchased the home from the Fowlers. Prior to sale, the Fowlers completed a Form 17 Real Property Transfer Disclosure Statement (Form 17) in which they indicated that the home had no problems with windows or dry rot, and that they were not aware of any dry rot or window problems in general. The Jains alleged they relied on this document and the representations from the Fowlers that the home was in good condition. Mr. Fowler and the realtor did tell Mr. Jain that Marvin had replaced every window in the house because the manufacturer had found a defect in them. The Jains signed the Purchase and Sale Agreement in June 1999. The Purchase and sale agreement provides:
INSPECTION CONTINGENCY: The above Agreement is conditioned on Buyer's personal approval of a written inspection of the Property and the improvements on the Property. Buyer's inspection may include, at Buyer's option, the structural, mechanical and general condition of the improvements to the Property, an inspection of the Property for hazardous materials a pest inspection, and a soils/stability inspection . Buyer is solely responsible for interviewing and selecting all inspectors . The Property Information Form 17 . . . is the Seller's disclosure of the present condition of the Property to the best of the Seller's knowledge and is not a warranty of any kind.
Soon after purchasing the home, the Jains discovered water damage around several windows. The Jains had the windows examined and were told:
1. Water leakage is occurring at the majority of the exterior windows between the original window frame and the aluminum clad wood sash, and at the corner joints of the window trim[;]
2. The glazing snaps of the windows are not adequate moisture barriers and the window weep system is ineffective[; and]
3. Window leakage has caused the wood windowsills and the structural wood frame wall assemblies to become very damp and decayed at numerous locations.
The Jains filed suit against Fowler and Marvin in June of 2000, alleging breach of contract, breach of warranty, fraud and misrepresentation. The Fowler's filed a cross claim against Marvin for breach of express warranty, equitable indemnity, negligence contribution, breach of implied warranty for a particular purpose and product liability. On June 28, 2002 the trial court granted a motion on the pleadings, effectively dismissing all of the Jains' claims against Marvin. On October 1, 2002 the trial court granted summary judgment in favor of Marvin, dismissing the Fowler's cross claims for breach of express warranty, equitable indemnity, negligence contribution and product liability. The Jains filed a motion to amend to add a claim for mutual mistake of fact on October 2, 2002. The trial court initially granted the motion to amend on October 11, 2002, but on November 5, 2002, it rejected the amended complaint. The trial court also dismissed the Fowlers last remaining claim for breach of implied warranty for a particular purpose. The Jains appeal dismissal of their claims. The Fowlers cross-claim on the dismissal of Marvin.
ANALYSIS I. Standard of Review
We review a trial court's ruling on a motion to amend the pleadings for an abuse of discretion. Lincoln v. Transamerica Inv. Corp., 89 Wn.2d 571, 573 P.2d 1316 (1978). A trial court abuses its discretion when it acts in a manifestly unreasonable manner or on untenable grounds or reasons. Davis v. Globe Mach. Mfg. Co., Inc., 102 Wn.2d 68, 77, 684 P.2d 692 (1984).
II. Dismissal of Warrant and Product Liability Claims Against Marvin
The Jains claim that a new warranty was created when Marvin repaired the windows in 1996-1997. Marvin claims that the statute of limitations bars the Jains' claims against it. RCW 62A.2-725 provides:
(1) An action for breach of any contract for a sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must wait the time of such performance the cause of action accrues when the breach is or should have been discovered.
Marvin's repairs of its construction work are insufficient to toll the statute of limitations. Washington has rejected the repair doctrine. Holbrook, Inc. v. Link-Belt Constr. Equip. Co., 103 Wn. App. 279, 288, 12 P.3d 638 (2000). The repair doctrine tolls the running of the statute of limitations where (1) repairs are attempted, (2) representations are made that repairs would cure the defect, and (3) the plaintiff relies upon such representations. Holbrook, 103 Wn. App. at 288. In Holbrook the plaintiff claimed 'breach of express and implied warranties, and violation of the Washington Product Liability Act.' Holbrook, 103 Wn. App. at 283.
The Holbrook court recognized the risk created by the repair doctrine:
Any repairs voluntarily undertaken by a product seller would be to the seller's detriment as each repair would start anew the running of the statute of limitations, and there would be little incentive for sellers to work with purchasers to repair equipment.
Holbrook, 103 Wn. App. at 290.
Here, Marvin voluntarily repaired the windows. Nothing in the record suggests that the trial court erred by rejecting the repair doctrine's application to this case. The Fowlers relied on alleged representations by Marvin that it understood the problem causing cosmetic blemishes and could repair it with replacement sashes. Because Washington has rejected the repair doctrine, Marvin's actions do not toll the statute of limitations. Accordingly, the Jains' warranty arguments are meritless.
III. The Jains' Washington Product Liability Act Claim
The Fowlers discovered problems with their windows in 1991 or 1992. Any WPLA cause of action accrued at that time. The three-year statute of limitations under RCW 7.72.060(3) accordingly barred that cause of action no later than 1995. The present action was not filed until June of 2000. The trial court did not err in dismissing this claim.
IV. Motion to Amend
The Jains argue that the trial court should have granted their motion to amend their second amended complaint. CR 15(a) provides that 'a party may amend his pleading only by leave of [the] court or by written consent of the adverse party; and leave shall be freely given when justice so requires.' CR 15(a) is liberally applied. Culpepper v. Snohomish County Dep't of Planning Cmty. Dev., 59 Wn. App. 166, 169, 796 P.2d 1285 (1990). 'Under [the] liberal rules of procedure, pleadings are intended to give notice to the court and the opponent of the general nature of the claim asserted.' Lewis v. Bell, 45 Wn. App. 192, 197, 724 P.2d 425 (1986). Refusal to grant leave to amend where there is no showing that to do so would result in undue prejudice to the opposing party is an abuse of discretion. See Tagliani v. Colwell, 10 Wn. App. 227, 232-234, 517 P.2d 207 (1973).
On October 1, 2002 the trial court granted summary judgment in favor of Marvin, dismissing the Fowler's cross claims for breach of express warranty, equitable indemnity, negligence contribution, and product liability. On October 2, 2002 the Jains filed a motion to amend their second amended complaint, seeking to add a claim for mutual mistake of fact. The trial court had already dismissed the Fowler's equitable indemnity claim against Marvin. Therefore, the Fowlers would have been unable to seek equitable indemnity against the mutual mistake claim. The Fowlers would have been unduly prejudiced had the trial court allowed the mutual mistake claim to proceed. The trial court did not abuse its discretion in rejecting the Jains' motion to amend to add mutual mistake because doing so at that date would have resulted in undue prejudice to the Fowlers.
Having concluded that the trial court did not err in rejecting the motion to amend their second amended complaint, we need not address Fowler's contingent cross appeal.
V. Attorney Fees
The trial court granted the Fowlers attorney fees under a fees and costs provision in their Purchase and Sale Agreement. The Purchase and Sale Agreement provides: 'Attorneys' Fees. If Buyer or Seller institutes suit against the other concerning this Agreement the prevailing party is entitled to reasonable attorneys' fees and expenses.' The Jains argue that because the Fowlers should not have prevailed at the trial court, they should not receive attorney fees. The Fowlers are entitled to attorney fees because they prevailed on this appeal.
We affirm.
COX and AGID, JJ., concur.