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distinguishing between activities performed "for or in relation to an improvement" and activities performed "for some other purpose"
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Case No. 20020842-CA.
Filed October 23, 2003. Rehearing Denied November 7, 2003.
Appeal from the Fourth District, Provo Department, The Honorable Claudia Laycock.
Byron G. Martin and Paul M. Belnap, Salt Lake City, for Appellant.
Jay D. Gurmankin, Stephen R. Waldron, Peggy A. Tomsic, Gainer M. Waldbillig, and Joel T. Zenger, Salt Lake City, for Appellees.
Before Judges Bench, Davis, and Orme.
OPINION
¶ 1 State Farm Fire and Casualty Company (State Farm), pursuant to a rule 54(b) certification of final judgment, see Utah R.Civ.P. 54(b), appeals a ruling of partial summary judgment in favor of Sundance Development Corporation and Sundance Enterprises, Inc. (collectively, Sundance). We reverse and remand.
BACKGROUND
¶ 2 Appellees, Sundance, developed property in the Sundance Resort area in Utah County. It is undisputed that Sundance determined the boundaries, size, location, and placement of lands in the area known as Plat B. Some of the lots in the Plat B lands lie in avalanche zones. Stan Collins, who was an officer and director at various times for Sundance, and his wife Mary Collins acquired Lot 2 in the Plat B lands in December of 1981, and constructed a personal residence on the lot. On January 27, 1997, an avalanche destroyed the Collinses' home. State Farm, as insurer of the property, paid the Collinses over $950,000 to cover the loss to real and personal property.
¶ 3 State Farm, as subrogee to the Collinses, brought an action against Sundance for (1) negligence; (2) gross negligence; (3) strict liability for engaging in inherently dangerous activities; (4) joint venture liability; and (5) subrogation. In its motion for summary judgment, Sundance asserted that State Farm's claims were barred by the version of Utah's statute of repose in effect at the time of the avalanche, Utah Code Ann. § 78-12-25.5 (Supp. 1997). The trial court granted partial summary judgment in favor of Sundance by ruling that Sundance's activities with respect to Lot 2 barred claims against it under the provisions of Utah's statute of repose, Utah Code Ann. § 78-12-25.5 (1997), and that Sundance had not sold Lot 2 to the Collinses and was, therefore, not a vendor. The trial court declined to enter summary judgment as to State Farm's claims arising out of strict liability. State Farm sought and obtained a certification under Utah Rule of Civil Procedure 54(b) certifying the "dismissed . . . negligent development and vendor liability claims." State Farm now appeals.
State Farm originally brought a claim for violation of the Consumer Sales Practices Act, but agreed to the dismissal of this claim.
We cite to the version of the statute in effect at the time the action arose. This statute has since been renumbered as Utah Code Ann. § 78-12-21.5 (2002).
Hardly a model of clarity, the Order of Certification of Final Judgment identifies the claims in the recital portion thereof. Since the negligent development claim was dismissed based upon the court's determination that the claim was barred by the statute of repose, we limit our analysis of that claim to that issue and take no position one way or another respecting other issues alluded to in the briefs.
ISSUES AND STANDARDS OF REVIEW
¶ 4 We consider two issues on appeal from the trial court's grant of partial summary judgment in favor of Sundance. First, we consider whether the trial court erred when it ruled that, as a matter of law, the activities of Sundance were covered by Utah's statute of repose, Utah Code Ann. § 78-12-25.5 (Supp. 1997). "When reviewing a grant of summary judgment, we review the district court's conclusions of law for correctness." Craftsman Builder's Supply, Inc. v. Butler Mfg. Co., 1999 UT 18, ¶ 12, 974 P.2d 1194. "When interpreting a statute, this court looks first to the statute's plain language to determine the Legislature's intent and purpose. We read the plain language of the statute as a whole. . . ." Miller v. Weaver, 2003 UT 12, ¶ 17, 66 P.3d 592 (citations omitted). "A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent."State v. Maestas, 2002 UT 123, ¶ 54, 63 P.3d 621 (quotations and citation omitted). "We follow `"the cardinal rule that the general purpose, intent or purport of the whole act shall control, and that all the parts be interpreted as subsidiary and harmonious to its manifest object."'" Miller, 2003 UT 12 at ¶ 17 (citations omitted).
¶ 5 Second, we consider whether the trial court erred when it determined on summary judgment that Sundance was not a vendor of Lot 2. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits. . . 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." Utah R.Civ.P. 56(c). "When reviewing a grant of summary judgment, we review the district court's conclusions of law for correctness."Craftsman, 1999 UT 18 at ¶ 12. Furthermore, "[w]e review the facts of this case in the light most favorable to the non-moving party." Premier Van Schaack Realty, Inc. v. Sieg, 2002 UT App 173, ¶ 7, 51 P.3d 24.
ANALYSIS I. The Statute of Repose for Improvements to Real Property
¶ 6 Utah's statute of repose for improvements to real property acts to address the "clear social and economic evils" of "liability insurance costs and records storage costs." Craftsman Builder's Supply, Inc. v. Butler Mfg. Co., 1999 UT 18, ¶ 20, 974 P.2d 1194. The statute of repose addresses these "evils," id., by "cutting off [an] injured party's cause of action before it even arises." Id. at ¶ 14. In its motion for summary judgment, Sundance argued that the statute of repose barred State Farm's claims.
¶ 7 Utah's statute of repose for improvements to real property, as it existed when this action arose in 1997, provides in relevant part, "no action may be commenced against a provider more than 12 years after completion of the improvement or abandonment of construction." Utah Code Ann. § 78-12-25.5(5) (Supp. 1997). A provider is defined as "any person contributing to, providing, or performing studies, plans, specifications, drawings, designs, value engineering, cost or quantity estimates, surveys, staking, construction, and the review, observation, administration, management, supervision, inspections, and tests of construction for or in relation to an improvement." Utah Code Ann. § 78-12-25.5(1)(e) (Supp. 1997). The statute defines an "[i]mprovement" as "any building, structure, infrastructure, road, utility, or other similar man-made change, addition, modification, or alteration to real property." Utah Code Ann. § 78-12-25.5(1)(c) (Supp. 1997). The statute also defines "[c]ompletion of improvement," in relevant part, as "the date of substantial completion of an improvement to real property as established by . . . the date the map of the survey is filed under [Utah Code Ann. §] 17-23-17 with respect to real property." Utah Code Ann. § 78-12-25.5(1)(b)(iv) (Supp. 1997). Because the trial court relied on language from these definitions, we consider each of them in turn.
A. Improvement to Real Property
¶ 8 The trial court ruled that the activities of Sundance, in relation to Lot 2, were an improvement to real property because "[a]fter extensively reviewing the [s]tatute of [r]epose as it existed in 1997, and the [s]upreme [c]ourt's holding in Craftsman, the [trial] court finds that the legislature included — within the statutory definition of `improvement' — a developer's activities in relation to subdividing raw land."
¶ 9 First, the trial court relies upon Craftsman for the proposition that Sundance's activities constitute an improvement to real property. We find no such support in Craftsman. The facts at issue inCraftsman dealt with the roof of a prefabricated metal building that had collapsed from the weight of snow, fifteen years after its construction.See Craftsman, 1999 UT 18 at ¶ 2. In Craftsman, the supreme court addressed: (1) the constitutionality of the statute of repose; "([2]) whether the repose periods are `subject to' a discovery rule; ([3]) whether there was a warranty extending beyond six years . . . ; and ([4]) whether the products liability statute of limitations should apply instead of the builders statute of repose." Id. at ¶ 11. InCraftsman, the court never addressed the definition of an improvement to real property, let alone the issue of whether site selection and subdivision of land are improvements to real property. Accordingly, it was inappropriate for the trial court to rely upon Craftsman for that proposition. In this case we need not go beyond the plain language of the statute. Here, it is undisputed that the activities of Sundance did not constitute a "building, structure, infrastructure, road, utility, or other similar man-made change, addition, modification, or alteration to real property." Utah Code Ann. § 78-12-25.5(1)(c) (Supp. 1997).
B. Provider
¶ 10 Next, the trial court examined the language of the statute to determine that Sundance's activities were an improvement by relying upon the definition of a "[p]rovider," which includes one who, inter alia, surveys and stakes property in relation to an "[i]mprovement." Utah Code Ann. § 78-12-25.5(1)(c), (e) (Supp. 1997). The trial court reasoned that because the activities of staking and surveying are included in the definition of a provider, and site selection of land is no different than staking and surveying, site selection of real property constitutes an improvement. However, the trial court's reliance upon this provision to find that Sundance created an improvement is misplaced. This provision of the statute does not expand the definition of the term "[i]mprovement," but instead restricts the reach of the term "[p]rovider" by requiring that a "[p]rovider" must perform an activity in relation to an "[i]mprovement." Id. One cannot be a "[p]rovider" unless the activity listed in the definition of a provider is performed for, or in relation to, an "[i]mprovement." Id. Thus, while surveying and staking for or in relation to an "[i]mprovement" may implicate the statute of repose, surveying and staking for some other purpose does not amount to an "[i]mprovement," and the surveyor or staker will not come within the definition of "[p]rovider" in such situations. Id.
¶ 11 Since Sundance did none of the things under the definition of an improvement in connection with its development activities, it is not a "[p]rovider." Utah Code Ann. § 78-12-25.5(1)(e) (Supp. 1997). Sundance's activities dealt with determining the boundaries, size, location, and placement of the Plat B lands, which included Lot 2.
C. Completion of Improvement
¶ 12 The trial court alternatively ruled that Sundance had created an improvement to real property because it filed Plat B, thereby evidencing a "[c]ompletion of improvement" under the statute of repose. Utah Code Ann. § 78-12-25.5(1)(b)(iv) (Supp. 1997). Although illogical on its face, the trial court reasoned that because filing this plat meant that there was a completion of an improvement, it followed that an improvement occurred. However, Utah Code Ann. § 78-12-25.5(1)(b)(iv) (Supp. 1997) does not expand the definition of improvement. The provision's reference to section 17-23-17 applies only to "registered professional land surveyor[s] making a boundary survey," Utah Code Ann. § 17-23-17(1)(a) (1995), and not to the filing of a plat, which is required under a different code provision — Utah Code Ann. § 17-27-804 (Supp. 1997). Under the statute of repose, a provider must, at a minimum, create "[a] building, structure, infrastructure, road, utility, or other similar man-made change, addition, modification, or alteration to real property," Utah Code Ann. § 78-12-25.5(1)(c) (Supp. 1997), in order to create an improvement.
¶ 13 Further, Sundance did not comply with the requirements of Utah Code Ann. § 78-12-25.5(1)(b)(iv) (Supp. 1997). Sundance filed a plat, it did not file a map of the survey. We therefore conclude that the trial court incorrectly ruled that because Sundance filed Plat B, Sundance completed an improvement, and necessarily created an improvement.
Having ruled that the statute of repose is not applicable to Sundance, we do not reach the issue of whether the fraudulent concealment exception to the statute of repose applies. See Utah Code Ann. § 78-12-25.5(6) (Supp. 1997).
¶ 14 Accordingly, we hold that the activities of Sundance with respect to Lot 2 do not constitute an improvement, and we therefore reverse the trial court's ruling that the statute of repose applied to the activities of Sundance.
II. Vendor Liability Claim
¶ 15 The trial court ruled that State Farm's negligence claims based upon vendor liability failed as a matter of law because no sale had occurred between Sundance and the Collinses. In reviewing a summary judgment, "we . . . examine all of the facts presented and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. If there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law, then summary judgment is appropriate." Grynberg v. Questar Pipeline Co., 2003 UT 8, ¶ 20, 70 P.3d 1.
¶ 16 Viewing the facts in a light most favorable to the nonmoving party, State Farm, we conclude that summary judgment on the vendor liability issue is inappropriate. For example, material, disputed facts exist with respect to the Collinses' acquisition of the lot, whether Sundance was a vendor, and whether the Collinses were purchasers. We therefore reverse the trial court's grant of summary judgment in favor of Sundance on this issue.
CONCLUSION
¶ 17 The trial court incorrectly ruled that Sundance's activities constituted an improvement to real property under Utah Code Ann. § 78-12-25.5 (Supp. 1997). The definition of improvement under the statute of repose focuses upon the activity of a provider, and therefore contemplates more than determining the boundaries, size, location, and placement of lands. The trial court also incorrectly ruled that State Farm's vendor liability claim fails as a matter of law. Material, disputed facts exist on this issue. We therefore reverse the trial court's grant of partial summary judgment in favor of Sundance, and we remand for further proceedings consistent with this opinion.
¶ 18 WE CONCUR:
Russell W. Bench, Judge, Gregory K. Orme, Judge.