PETRUS FAMILY TRUST DATED MAY 1, 1991, and EDMOND A. PETRUS JR., individually and as Co-Trustee of the Petrus Family Trust Dated May 1, 1991, Plaintiffs-Appellants-Cross Respondents,
CHRIS KIRK, dba KIRK ENTERPRISES, Defendant-Respondent-Cross Appellants, and NANCY GENTRY-BOYD; TODD MCKENNA dba HOMECRAFT HOME INSPECTIONS; RE/MAX RESORT REALTY; KEVIN BATCHELOR; and DOES 1-4, Defendants.
Opinion No. 28
from the District Court of the Fourth Judicial District,
State of Idaho, Valley County. Hon. Jason D. Scott, District
court order granting summary judgment, affirmed.
Parsons Behle & Latimer, Boise, and Higgs, Fletcher &
Mack LLP, San Diego, CA for appellants.
M. Morris argued.
Arkoosh Law Offices, Boise, for respondents.
A. Nevala argued.
BURDICK, CHIEF JUSTICE.
Family Trust and Edmond A. Petrus, Jr., individually and as
trustee of the Petrus Family Trust (collectively, Petrus)
brings this appeal from the Ada County district court. Petrus
sued Chris Kirk d/b/a Kirk Enterprises (Kirk) and several
other parties for claims arising from Petrus's purchase
of a home Kirk built in McCall. Kirk moved for summary
judgment, and the district court granted the motion in
Kirk's favor. The district court also awarded attorney
fees to Kirk under Idaho Code section 12-121, apportioning
the award so as to award Kirk fees only insofar as Kirk was
required to defend against a frivolous claim. Petrus timely
appeals the grant of summary judgment in favor of Kirk, and
Kirk timely cross-appeals the apportionment of fees. For the
reasons below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
material facts of this case are not in dispute. Kirk built a
home located in McCall under an oral contract Kirk had with
Nancy Gentry-Boyd. Kirk began construction in June 2004 and
completed the home by September 2005. Gentry-Boyd paid Kirk
and used the home for vacation purposes from 2005 until 2012.
April 2012, Petrus purchased the home from Gentry-Boyd for
vacation purposes under a Real Estate Purchase and Sale
Agreement (PSA). The PSA required Gentry-Boyd to disclose
certain property conditions before closing. As relevant here,
in response to the PSA's inquiry of "any water
intrusion or moisture related damage to any portion of the
property, " Gentry-Boyd answered "[n]o." Nor
did Gentry-Boyd disclose any water intrusion in response to
the PSA's directive to list "any other existing
problems that [she] kn[e]w of concerning the property."
A home inspection occurred before closing, and while water
seepage in the crawlspace was noted, the home inspector
assured Petrus it was "normal seepage for this type of
property, this type of area, this type of house, this type of
- you know, this is normal, nothing unusual."
after moving into the home in or around June 2012, Petrus
discovered that a set of French doors in the home were
swollen with water and did not open, close, or lock properly.
When Petrus contacted Gentry-Boyd about the issue,
Gentry-Boyd responded that "[t]he doors sometimes stick
after the winter. If you keep them locked, they will dry out
and function again[, ]" notwithstanding that Gentry-Boyd
had failed to disclose this condition on the PSA. Nor had
this condition been discovered during the home inspection.
Petrus notified Kirk of the issue by letter dated August 7,
2013. Kirk thereafter inspected the home on several
occasions, and surmised that "at some point after
construction on the Home was completed, the Home had been
severely altered and damaged." Petrus eventually
discovered extensive rot and mold from water intrusion and
expended over $60, 000 to remediate the water damage. Petrus
and Kirk never reached an amicable resolution.
March 2014, Petrus sued Kirk, Gentry-Boyd, and the home
inspector. Petrus did not serve the initial complaint.
Instead, Petrus filed a first amended complaint in September
2014, which Petrus later served. In the first amended
complaint, as against Kirk, Petrus alleged claims for breach
of the implied warranty of habitability and conspiracy to
defraud. Thereafter, Petrus filed a second amended complaint
in September 2015, which Petrus later served, alleging claims
against Kirk that were substantially identical to the claims
alleged in the first amended complaint. Various contract,
tort, and consumer-protection claims were asserted against
Gentry-Boyd and the home inspector, but those claims are not
at issue in this appeal.
relevant here, Kirk moved for summary judgment in May 2016,
contending, in part, that (1) Petrus's
conspiracy-to-defraud claim was unsupported; and (2)
Petrus's breach of the implied warranty of habitability
claim was untimely under Idaho Code section 5-241(b). Petrus
responded that the breach of implied warranty of habitability
claim was timely under section 5-241(a) because it arose in
tort, not in contract, and did not address the
conspiracy-to-defraud claim. The district held a hearing on
Kirk's summary judgment motion in June 2016, at which
Petrus conceded summary judgment for Kirk was proper on the
conspiracy-to-defraud claim, leaving only the breach of the
implied warranty of habitability claim.
district court granted summary judgment to Kirk, concluding
Petrus's breach of the implied warranty of habitability
claim arose in contract and was therefore untimely under
section 5-241(b). Even if Petrus's claim arose in tort,
the district court concluded it would be barred by the
economic loss rule. Petrus timely moved for reconsideration,
but the district court denied the motion after concluding
Petrus had not offered any new argument or evidence that
would warrant a different result. Thereafter, the district
court awarded attorney fees to Kirk under Idaho Code section
12-121, apportioning the award so as to award fees to Kirk
only insofar as he was required to defend against
Petrus's conspiracy-to-defraud claim.
timely appeals the grant of summary judgment in favor of
Kirk, and Kirk timely cross-appeals the apportionment of
ISSUES ON APPEAL
the district court err by granting summary judgment to Kirk?
the district court err by denying Petrus's motion for
the district court err in its apportionment of attorney fees
Kirk entitled to attorney fees on appeal?
The district court properly granted summary judgment to
Court has explained that, when it reviews a summary judgment
it does so under the same standards employed by the district
court. "The fact that the parties have filed
cross-motions for summary judgment does not change the
applicable standard of review, and this Court must evaluate
each party's motion on its own merits." Summary
judgment is proper "if the pleadings, depositions, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law." Idaho R. Civ. P. 56(c).[ Where the case
will be tried without a jury, "the trial court as the
trier of fact is entitled to arrive at the most probable
inferences based upon the undisputed evidence properly before
it and grant the summary judgment despite the possibility of
conflicting inferences." This Court freely reviews the
entire record that was before the district court to determine
whether either side was entitled to judgment as a matter of
law and whether inferences drawn by the district court are
reasonably supported by the record.
Borley v. Smith, 149 Idaho 171, 176-77, 233 P.3d
102, 107-08 (2010) (citations omitted).
parties agree Idaho Code section 5-241 governs the fate of
Petrus's claim for breach of the implied warranty of
habitability. That statute provides as follows:
Actions will be deemed to have accrued and the statute of
limitations shall begin to run as to actions against any
person by reason of his having performed or furnished the
design, planning, supervision or construction of an
improvement to real property, as follows:
(a) Tort actions, if not previously accrued, shall accrue and
the applicable limitation statute shall begin to run six (6)
years after the final completion of ...