Graoch Associates No. 5 Ltd. Partnership v. Titan Const. Corp.

109 P.3d 830
CourtCourt of Appeals of Washington
DecidedApril 4, 2005
Docket53635-4-I
StatusPublished
Cited by3 cases

This text of 109 P.3d 830 (Graoch Associates No. 5 Ltd. Partnership v. Titan Const. Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Graoch Associates No. 5 Ltd. Partnership v. Titan Const. Corp., 109 P.3d 830 (Wash. Ct. App. 2005).

Opinion

109 P.3d 830 (2005)

GRAOCH ASSOCIATES # 5 LIMITED PARTNERSHIP, a Washington Corporation, Plaintiff,
v.
TITAN CONSTRUCTION CORPORATION, a Washington corporation, Appellant,
Mike Purcell and Jane Doe Purcell, a married couple, d/b/a Purcell Construction, Respondent.

No. 53635-4-I.

Court of Appeals of Washington, Division 1.

January 24, 2005.
Publication Ordered April 4, 2005.

*831 David C. Burkett, Burkett Burdette & Fogarty PLLC, Seattle, WA, for Appellant.

Thomas Lether, Eric J. Neal, Brent J. Ruth, Cole Lether Wathen & Leid PC, Seattle, WA, for Respondent.

PER CURIAM.

¶ 1 Titan Construction (Titan), the general contractor for an apartment complex construction project, contends the trial court erred in dismissing its breach of contract claims against Purcell Construction, the siding installation subcontractor for the apartment project. Titan claims the one-year warranty in its contract with Purcell does not prevent an independent breach of contract claim based on the terms of the contract between Titan and Graoch Associates # 5 Limited Partnership (Graoch), the project owner, which were incorporated by reference in the contract between Titan and Purcell. We conclude the warranty provision in the subcontract does not bar Titan's breach of contract claim against Purcell and reverse.

FACTS

¶ 2 In 1993, Graoch hired Titan, a general contractor, to build the Peak at Somerset Apartment Complex, Phase II (the project). The construction contract between Graoch and Titan used a standard form agreement and defined the scope of the work and a guaranteed maximum price.[1] The contract also included several conditions, including that Titan warrant "that all Work will be of good quality, free from faults and defects and in conformance with the Contract Documents."[2]

¶ 3 Titan contracted with several subcontractors to perform work on the Graoch project. Titan and Purcell entered into a contract to install vinyl siding on the apartment buildings and guardrails on the deck in November 1993. The contract between Titan and Purcell required Purcell to provide a one-year warranty on "materials, equipment, parts, installation, and workmanship," prior to Purcell receiving final payment, and incorporated by reference the contract between Graoch and Titan.[3] On July 28, 1994, Purcell provided the warranty in a letter to Titan. The warranty provides that Purcell will remedy any defects in its work "appearing" within one year of substantial completion, and Purcell will pay for any damage to other work resulting from those defects or the correction of the defects.[4]

¶ 4 Purcell installed the vinyl siding and deck railings for the project and the certificate of substantial completion was issued on October 25, 1994.

¶ 5 In January 2000, Graoch filed a lawsuit against Titan for defective construction. In May 2000, Titan notified the subcontractors, including Purcell, of Graoch's claims. In December 2000, Titan filed third party complaints against several subcontractors, including Purcell. Titan sought indemnification from the subcontractors for breach of contract, negligent performance of work, and equitable subrogation or indemnity. In *832 April 2001, Titan and Graoch agreed to a settlement of Graoch's claims for $1 million.

¶ 6 In June 2001, the subcontractors filed motions for summary judgment seeking dismissal of Titan's claims. The subcontractors argued Titan's breach of contract claims were barred by the statute of limitations and Titan's indemnity claims were barred by the statute of repose. Titan argued it had valid indemnity claims but did not advance any arguments regarding its breach of contract claims. The trial court granted the motions for summary judgment and dismissed all of Titan's claims.

¶ 7 On appeal, this court affirmed dismissal of Titan's indemnity claims as barred by the statute of repose, but reversed dismissal of the breach of contract claims. Graoch Assoc. # 5 Ltd. Partnership v. Purcell, 115 Wash.App. 1021, 2003 WL 257282 (2003). In Graoch Assoc. # 5 Ltd. Partnership we decided that under Architechtonics Construction Management, Inc. v. Khorram, 111 Wash.App. 725, 45 P.3d 1142 (2002), rev. denied, 148 Wash.2d 1005, 60 P.3d 1212(1003), the discovery rule applied to Titan's breach of contract claims and therefore the claims were not barred as a matter of law by the six-year statute of limitations for breach of contract claims.

¶ 8 On remand, Purcell filed a motion for summary judgment arguing that its one-year limited warranty extinguished Titan's breach of contract claim and Titan could not establish how Purcell's work was defective. The trial court concluded that although there was a genuine issue of material fact regarding whether Purcell's work was defective, as a matter of law, the warranty barred Titan's breach of contract claim. Titan appeals the trial court's decision to dismiss Titan's lawsuit against Purcell.[5]

ANALYSIS

¶ 9 Titan argues the trial court erred in dismissing its breach of contract claim as a matter of law on summary judgment because the repair warranty in its contract with Purcell was not an exclusive remedy that barred its breach of contract claims against Purcell.

¶ 10 When reviewing a decision to grant summary judgment, this court engages in the same inquiry as the trial court. Reynolds v. Hicks, 134 Wash.2d 491, 495, 951 P.2d 761 (1998). Summary judgment is properly granted when the pleadings and affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). We review questions of law de novo. Mountain Park Homeowners Ass'n, Inc. v. Tydings, 125 Wash.2d 337, 341, 883 P.2d 1383 (1994).

¶ 11 A court's purpose in interpreting a contract is to ascertain the parties' intent. U.S. Life Credit Life Ins. Co. v. Williams, 129 Wash.2d 565, 569, 919 P.2d 594 (1996). "Absent disputed facts, the legal effect of a contract is a question of law to be reviewed de novo." Litho Color, Inc. v. Pacific Employers Ins. Co., 98 Wash.App. 286, 295, 991 P.2d 638 (1999).

¶ 12 The contract between Titan and Purcell incorporated the terms of the contract between Titan and Graoch by reference.[6] Purcell does not assert that its contract with Titan was invalid or that it was not bound by the terms of the contract between Titan and Graoch. The contract between Titan and Graoch provides:

4.5 WARRANTY
The Contractor warrants to the Owner that all materials and equipment furnished under this Contract will be new unless otherwise specified, and that all Work will be of good quality, free from faults and defects and in conformance with the Contract Documents. All Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered *833 defective.... This warranty is not limited by the provisions of Paragraph 13.2.[7]

Paragraph 13.2 addresses "Correction of Work".[8]

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Bluebook (online)
109 P.3d 830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graoch-associates-no-5-ltd-partnership-v-titan-const-corp-washctapp-2005.