Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

1991 v. Kirk

Supreme Court of Idaho

April 4, 2018

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,
v.
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.

         2018 Opinion No. 28

          Appeal from the District Court of the Fourth Judicial District, State of Idaho, Valley County. Hon. Jason D. Scott, District Judge.

         District court order granting summary judgment, affirmed.

          Parsons Behle & Latimer, Boise, and Higgs, Fletcher & Mack LLP, San Diego, CA for appellants.

          John M. Morris argued.

          Arkoosh Law Offices, Boise, for respondents.

          Daniel A. Nevala argued.

          BURDICK, CHIEF JUSTICE.

         Petrus 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The 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.

         In 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."

         Shortly 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.

         In 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.[1]

         As 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.

         The 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.

         Petrus timely appeals the grant of summary judgment in favor of Kirk, and Kirk timely cross-appeals the apportionment of fees.

         II. ISSUES ON APPEAL

         1. Did the district court err by granting summary judgment to Kirk?

         2. Did the district court err by denying Petrus's motion for reconsideration?

         3. Did the district court err in its apportionment of attorney fees to Kirk?

         4. Is Kirk entitled to attorney fees on appeal?

         III. ANALYSIS

         A. The district court properly granted summary judgment to Kirk.

         This Court has explained that, when it reviews a summary judgment on appeal,

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).[[2] 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).

         The 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.