January 27, 2021 January 27, 2021
Supreme Court
No. 2018-219-Appeal. (PC 16-3438)
Reney A. Mondoux et al. :
v. :
Peter A. Vanghel. :
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
OPINION
Justice Robinson, for the Court. The plaintiffs, Reney A. Mondoux and
Joseph N. Mondoux, Jr., appeal following a May 8, 2018 final judgment of the
Superior Court, granting summary judgment in favor of the defendant, Peter A.
Vanghel. The plaintiffs contend before this Court that the trial justice erred in
determining that their claim for breach of the implied warranty of habitability was
time-barred pursuant to this Court’s holding in Nichols v. R.R. Beaufort &
Associates, Inc., 727 A.2d 174 (R.I. 1999). For the reasons set forth in this
opinion, we affirm the judgment of the Superior Court.
I
Facts and Travel
The following facts, concerning which there is no material dispute, are taken
from the parties’ briefs before this Court, defendant’s memorandum of law in -1- support of his motion for summary judgment, plaintiffs’ memorandum in
opposition thereto, and other documents in the record.
On December 24, 1997, plaintiffs purchased a house from defendant; that
house is located on a waterfront parcel alongside a lake in Glocester, Rhode Island.
According to plaintiffs, defendant represented that he was a licensed builder and
that he had initially constructed the house for himself and his wife, but that he was
instead selling it as the builder-vendor.
At the time plaintiffs purchased the house in question, construction had been
substantially completed, and the only remaining tasks to be completed were
staining the deck and acquiring a refrigerator. Moreover, no real estate broker had
been engaged by either party to the transaction. The plaintiffs received a warranty
deed from defendant on December 24, 1997.
In the Fall of 2012, plaintiffs discovered interior water damage on the
lakeside-facing wall of the house, which damage they believed had been caused by
a recent hurricane. Specifically, plaintiffs noticed “rotting” above a French door.
Subsequently, plaintiffs filed a claim with their homeowners insurance company
with respect to the damage. According to plaintiffs, on July 25, 2013, Robert L.
Smith of C & L Builders, Inc., examined the lakeside-facing wall of the house.
After removing the clapboards and some sheathing on the side of the house that
faced the lake, Mr. Smith discovered extensive water damage.
-2- Mr. Smith opined that the damage was due to defendant’s improper
workmanship and to his use of improper materials. Mr. Smith opined that
defendant had failed to use a “waterproof underlayment” in the affected area and
that he had not “wrapped” the sliding glass door and windows so as to prevent
water from entering the infrastructure of the house. According to plaintiffs, Mr.
Smith informed them that defendant’s failure to have used proper materials caused
all the plywood in the affected area to rot and that it would be necessary to replace
the entire lakeside-facing wall of the house.
On July 21, 2016, plaintiffs filed a complaint against defendant in Superior
Court. Thereafter, on August 11, 2016, they filed an amended complaint alleging
breach of contract (Count One); breach of warranty (Count Two); breach of the
implied warranty of habitability (Count Three); negligence (Count Four); breach of
the implied covenant of good faith and fair dealing (Count Five); fraud in the
inducement (Count Six); and negligent misrepresentation (Count Seven).
The defendant filed his answer to the amended complaint on August 31,
2016. Thereafter, on January 24, 2018, he filed a motion for summary judgment.
The defendant asserted that plaintiffs’ contract claim was barred by the statute of
frauds and the doctrine of merger by deed; he further asserted that the claims
sounding in tort were barred by the statute of repose. General Laws 1956 § 9-1-
-3- 29.1 Similarly, defendant contended that plaintiffs’ claims for breach of warranty
and breach of the implied warranty of habitability were also time-barred pursuant
to this Court’s holding in Nichols. Nichols, 727 A.2d at 174.
In response, plaintiffs countered that Counts One through Seven all sounded
in contract and that, accordingly, § 9-1-13—the general statute of limitations for
1 General Laws 1956 § 9-1-29 is entitled “Constructors of improvements to real property—Immunity from liability” and provides in pertinent part as follows:
“No action (including arbitration proceedings) in tort to recover damages shall be brought against any architect or professional engineer who designed, planned, or supervised to any extent the construction of improvements to real property, or against any contractor or subcontractor who constructed the improvements to real property * * * on account of any deficiency in the design, planning, supervision, or observation of construction or construction of any such improvements or in the materials furnished for the improvements:
“(1) For injury to property, real or personal, arising out of any such deficiency;
“(2) For injury to the person or for wrongful death arising out of any such deficiency; or
“(3) For contribution or indemnity for damages sustained on account of any injury mentioned in subdivisions (1) and (2) hereof more than ten (10) years after substantial completion of such an improvement * * *.” -4- civil actions—applied.2 In addition, plaintiffs argued that, with respect to claims
involving improvements to real property, § 9-1-13 “begins to run when the
evidence of injury to property * * * is sufficiently significant to alert the injured
party to the possibility of defect.” (Internal quotation marks omitted.) As a result,
plaintiffs contended that the statute of limitations did not begin to accrue until July
of 2013, when Mr. Smith alerted them to the injury.
On April 25, 2018, a hearing was held before a justice of the Superior Court
on defendant’s motion for summary judgment. The hearing justice determined that
plaintiffs’ tort claims (Counts Four through Seven) were barred by the statute of
repose. The hearing justice also found that this Court’s holding in Nichols barred
the plaintiffs’ claim based on the implied warranty of habitability (Count Three).
The hearing justice granted summary judgment in favor of defendant on all counts
in plaintiffs’ amended complaint. The plaintiffs timely appealed to this Court,
challenging only the grant of summary judgment as regards their claims as to
breach of contract, breach of express warranty, and breach of the implied warranty
of habitability (Counts One through Three). See Mondoux v. Vanghel, 216 A.3d
597, 597 (R.I. 2019) (mem.).
2 General Laws 1956 § 9-1-13(a) provides that “[e]xcept as otherwise specially provided, all civil actions shall be commenced within ten (10) years next after the cause of action shall accrue, and not after.” -5- On September 26, 2019, the case came before this Court pursuant to an order
directing the parties to appear and show cause as to why the issues raised should
not be summarily decided. Id. After hearing oral argument, this Court affirmed
the judgment of the Superior Court with respect to plaintiffs’ breach of contract
and express warranty arguments (Counts One and Two). Id. However, with
respect to plaintiffs’ claim for breach of the implied warranty of habitability
(Count Three) and the issue of whether or not the holding in Nichols applied to this
case, this Court was of the opinion that cause had been shown. Id. Accordingly,
we assigned that remaining issue to the full argument calendar and directed the
parties “to address whether the ten-year limitation on claims for breach of implied
warranties, as set forth for subsequent purchasers in Nichols, should act as a bar to
the plaintiffs’ claim in this case.” Id.
II
Standard of Review
We review “a hearing justice’s grant of a motion for summary judgment de
novo.” CFS 915, LLC v. Unetixs Vascular, Inc., 226 A.3d 1058, 1060-61 (R.I.
2020) (internal quotation marks omitted). In deciding whether summary judgment
was appropriate, we apply the same standard as the hearing justice and, therefore,
we “must determine whether ‘no genuine issue of material fact exists and [if] the
moving party is entitled to judgment as a matter of law.’” Id. at 1061 (quoting
-6- Cancel v. City of Providence, 187 A.3d 347, 350 (R.I. 2018)). When making this
determination “[w]e view the evidence in the light most favorable to the
nonmoving party.” Id. (quoting Narragansett Indian Tribe v. State, 81 A.3d 1106,
1109 (R.I. 2014)). “[O]nce the moving party establishes the absence of a material
factual issue, the party opposing the motion has an affirmative duty to establish
either by affidavit or by other means the material issue of fact to be decided.” Id.
(quoting Mello v. Killeavy, 205 A.3d 454, 459 (R.I. 2019)).
III
Analysis
Because this case involves multiple statutes of limitation and a tolling
theory, we will begin by providing a brief overview of each applicable statute of
limitations and the argument as to the tolling that is at issue.
Section 9-1-29, known as the tort statute of repose, generally bars any tort
action against any contractor, subcontractor, or materials supplier “on account of
any deficiency in the design, planning, supervision, or observation of construction”
upon the expiration of a period of ten years after substantial completion of the
improvement.
Similarly, § 9-1-13(a), the general civil statute of limitations, bars “all civil
actions [that are not] commenced within ten (10) years next after the cause of
action shall accrue * * *.” (Emphasis added.)
-7- In certain instances, this Court has applied the so-called “discovery rule” to
toll a statute of limitations; however, this Court has done so only “[i]n some
narrowly circumscribed factual situations * * * when the fact of the injury is
unknown to the plaintiff when it occurs * * *.” Polanco v. Lombardi, 231 A.3d
139, 146 (R.I. 2020) (quoting Mills v. Toselli, 819 A.2d 202, 205 (R.I. 2003)). In
such a scenario, the “statute of limitations will be tolled and will not begin to run
until, in the exercise of reasonable diligence, the plaintiff should have discovered
the injury or some injury-causing wrongful conduct.” Id. (quoting Mills, 819 A.2d
at 205).
A
The Contentions of the Parties
The plaintiffs contend that the principles set forth in this Court’s decision in
Nichols should not act as a bar to their claim for breach of the implied warranty of
habitability. The plaintiffs contend that, in Nichols, this Court expressly held that
§ 9-1-29 serves as a bar only to untimely tort claims and that § 9-1-13 applies to
claims of contract-based breach of implied warranty. Additionally, plaintiffs claim
that Nichols clearly supports the argument that the discovery rule is applicable to
their claim of contract-based breach of implied warranty. Based on their
interpretation of Nichols and the discovery rule, plaintiffs contend that the statute
of limitations did not accrue until Mr. Smith alerted them to the defect in July of
-8- 2013. Finally, plaintiffs aver that this Court in Nichols imposed a ten-year
limitation on claims for breach of the implied warranty of habitability, but that
such a limitation did not apply to claims against the original builder—only to sales
between parties other than the original builder. The plaintiffs contend that,
because they are the original purchasers, the ten-year limitation does not apply; in
other words, plaintiffs posit that they enjoy an actionable claim for breach of the
implied warranty of habitability in spite of the fact that fifteen years of uneventful
home ownership had passed before they became aware of the alleged construction
defect.
Conversely, defendant contends that the ten-year limitation set forth in
Nichols should act as a bar to plaintiffs’ claim. The defendant proffers that
drawing a distinction between original homeowners and subsequent homeowners
would eliminate the protection the Legislature sought to provide to builders when
it enacted the statute of repose contained in § 9-1-29.
B
Discussion
We begin by noting that our caselaw with respect to claims for breach of the
implied warranty of habitability is somewhat fog-shrouded and that, in our
estimation, neither Nichols nor § 9-1-29 is directly controlling in this case.
Nichols, which dealt specifically with subsequent owners, stated that § 9-1-13
-9- applies to claims for breach of the implied warranty of habitability. Nichols, 727
A.2d at 175, 180 n.5. However, after due reflection, we have concluded that the
instant case and others like it should be controlled by the underlying public policy
reflected in both the just-cited statute and the Nichols opinion—viz., that exposure
to potential liability must come to an end at some definite point in time lest such
exposure be indefinite. See Gunn v. Union Railroad Co., 27 R.I. 320, 337, 62 A.
118, 125 (1905) (quoting the ancient maxim, “[i]nterest reipublicae ut sit finis
litium” (It is in the interest of the republic that there be an end to litigation.)). In
accordance with that sound jurisprudential principle, we hold that a period of ten
years after substantial completion of improvement to real property constitutes a
reasonable period of time within which to discover any latent defects within the
house, such that the homeowner may maintain a cause of action for breach of
implied warranty.
In Nichols, this Court abolished the privity requirement between contractors
and subsequent homeowners, reasoning that “[t]o require privity between the
contractor and the home owner * * * would defeat the purpose of the implied
warranty of good workmanship and could leave innocent homeowners without a
remedy * * *.” Nichols, 727 A.2d at 179 (quoting Lempke v. Dagenais, 547 A.2d
290, 294 (N.H. 1988)). We noted that “[t]he essence of implied warranty is to
protect innocent buyers” and that such a “principle, which protects first purchasers
- 10 - * * * is equally applicable to subsequent purchasers.” Id. (quoting Lempke, 547
A.2d at 294). Importantly, we determined that there was no reason for an original
owner to have the benefit of an implied warranty of habitability while “the next
owner should not [have that benefit] simply because there ha[d] been a transfer.”
Id. (internal quotation marks omitted). Accordingly, the thrust of our decision in
Nichols was to provide the same benefits to both subsequent and original
homeowners.
In abolishing the privity requirement in that context, “we recognize[d] that
some limitations must be imposed on the scope of this otherwise potentially
unlimited liability.” Id. at 181. In order to “avoid exposing builders, architects,
engineers, and other home contractors” to potential unlimited liability, we
restricted “the coverage of the implied warranties of habitability and of
workmanlike quality to those latent defects that subsequent owners discover[ed]
within a reasonable period of time” after substantial completion of the
improvements. Id. at 181-82 (emphasis added). Guided by the tort statute of
repose provided in § 9-1-29, we deemed that a period of ten years after substantial
completion was “a reasonable period of time * * * to discover any latent defects in
the home” and, within three years, file a complaint alleging breach of the implied
warranty. Id. at 182.
- 11 - In the instant case, we similarly see no reason to distinguish between
original homeowners and subsequent homeowners with respect to how long a
claim for breach of the implied warranty of habitability remains actionable.
Certainly, providing original homeowners with the added benefit of a claim for
breach of the implied warranty that potentially extends in perpetuity would be
inconsistent with the public policy underlying our decision in Nichols—
specifically, that builders should not be forced “to act as an insurer, in all respects”
after building a house, and that there must be some “barrier to the possibility of
unlimited liability.” Id. at 181.
This Court has quoted with approval the United States Supreme Court’s
statement that “[s]tatutes of limitation * * * are designed to promote justice by
preventing surprises through the revival of claims that have been allowed to
slumber until evidence has been lost, memories have faded, and witnesses have
disappeared.” Order of Railroad Telegraphers v. Railway Express Agency, Inc.,
321 U.S. 342, 348-49 (1944) (quoted with approval in Ryan v. Roman Catholic
Bishop of Providence, 941 A.2d 174, 181 (R.I. 2008)). Moreover, we have noted
that such statutes “are the product of a balancing of the individual person’s right to
seek redress for past grievances against the need of society and the judicial system
for finality—for a closing of the books.” Ryan, 941 A.2d at 181; see generally
- 12 - Charles C. Callahan, Statutes of Limitation—Background, 16 Ohio St. L.J. 130
(1955).
We believe that our decision in Nichols strikes the appropriate balance, and
we extend our holding in Nichols to apply to original homeowners. Therefore, we
hold that any homeowner has a period of ten years following substantial
completion of improvement to real property to discover a latent defect. A claim
for breach of implied warranty will be considered timely if the homeowner files
suit “within three years of the date when they discover any latent defects or within
three years of the date when, in the exercise of due diligence, they should have
discovered such defects.” Nichols, 727 A.2d at 182.
Our decision today not only clarifies our jurisprudence with regard to claims
for breach of implied warranty by eliminating any distinction between original
homeowners and subsequent homeowners, but it also supports the sound public
policy articulated in Nichols. We recognize that our holding today represents an
extension of the existing law in this domain; however, we are persuaded that
“[p]ublic policy has compelled [such] a change,” and we are convinced of “the
soundness of this extension.” Id. at 181 (quoting Lempke, 547 A.2d at 295); see
Frazier v. Liberty Mutual Insurance Co., 229 A.3d 56, 60 (R.I. 2020).3
3 Because we hold that the ten-year limitation set forth in Nichols v. R.R. Beaufort & Associates, Inc., 727 A.2d 174 (R.I. 1999), is equally applicable here, we need not, and therefore do not, reach the discovery rule issue. See Grady v. - 13 - C
The Plaintiffs’ Claim of Breach of the Implied Warranty of Habitability
The plaintiffs, having purchased their house after substantial completion in
1997, had until 2007 to discover a latent defect within their house. However, they
did not discover the latent defect at issue until July of 2013. As such, in view of
our holding that ten years should be the maximal time for such a discovery to be
reasonable, the plaintiffs’ claim for breach of the implied warranty of habitability
is time-barred.
IV
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court. The record shall be remanded to that tribunal.
Justice Lynch Prata and Justice Long did not participate.
Justice Flaherty participated in the decision but retired before its publication.
Narragansett Electric Co., 962 A.2d 34, 42 n.4 (R.I. 2009) (noting “our usual policy of not opining with respect to issues about which we need not opine”). - 14 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
Title of Case Reney A. Mondoux et al. v. Peter A. Vanghel.
No. 2018-219-Appeal. Case Number (PC 16-3438)
Date Opinion Filed January 27, 2021
Justices Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
Written By Associate Justice William P. Robinson III
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Bennett R. Gallo
For Plaintiffs:
Karen Auclair Oliveira, Esq. Attorney(s) on Appeal For Defendant:
Steven T. Hayes, Esq. Donna M. Lamontagne, Esq.
SU-CMS-02A (revised June 2020)