Rosenberg v. Falling Water, Inc.

709 S.E.2d 227, 289 Ga. 57, 2011 Fulton County D. Rep. 741, 2011 Ga. LEXIS 249

• Court: Supreme Court of Georgia
• Decided: March 18, 2011
• Docket: S10G0877
• Status: Published

Opinions

Melton, Justice.

In Rosenberg v. Falling Water, Inc., 302 Ga. App. 78 (690 SE2d 183) (2009), the Court of Appeals affirmed the triad court’s grant of summary judgment to the defendant, Falling Water, Inc., in a personal injury action arising from the collapse of a deck at plaintiff Richard Rosenberg’s home. We granted review to determine whether the Court of Appeals erred in holding that Falling Water was not equitably estopped from relying on the statute of repose to defeat Rosenberg’s construction defect claim. For the reasons set forth below, we affirm.

As set forth by the Court of Appeals, the record shows the following undisputed facts:

On May 5, 1994, [Falling Water, Inc.] obtained a permit from the City of Kennesaw to begin construction of a house at 1423 Shiloh Way. The city issued a certificate of occupancy for the property on July 12, 1994. On July 14, 1994, [Falling Water] transferred title to the property to Susan and William Nowicki. The Nowickis subsequently sold the property to Axel and Charlotte Bayala. On March 28, 2002, almost eight years after the city issued a certificate of occupancy for the property and [Falling Water] transferred title to the property, the Bayalas sold the house to Rosenberg.

According to Rosenberg, he learned about the house from a real estate agent whose name he could not remember, and he testified that the agent did not make any statements regarding the quality of homes other than to say they were “nice starter homes at a great value.” Before buying the house, Rosenberg did not know who had built the house and did not inquire about it, had no contact with [Falling Water], did not know anything about [Falling Water]’s reputation, did not know anything about Shiloh Plantation subdivision, and did not talk to any other homeowners in the subdivision about their homes.

The house had a deck attached to the back. In August 2005, Rosenberg hired his neighbors, who were not carpenters, builders or renovators, to remove the wood siding from the house so that it could be replaced with vinyl siding. On August 31, 2005, on the second day of the renovation project, the neighbors removed the siding from the back of the house, but left the original siding at the site where the deck was attached to the house. When Rosenberg arrived home from work, he started to walk out onto the deck to check the progress of the project. As soon as he stepped on the deck, it collapsed and he fell, sustaining serious injuries. There is no evidence in the record that Rosenberg or the previous owners experienced any problems with the deck prior to the August 2005 collapse.

On May 25, 2006, Rosenberg sued [Falling Water] for injuries resulting from the deck collapse. In his complaint, Rosenberg alleged that [Falling Water] had negligently constructed the deck by failing to properly affix it to the house and had committed fraud by hiding the defective construction from future owners by using certain bolts that made it appear that the deck was properly attached to the house. In [Falling Water]’s motion for summary judgment, it asserted that Rosenberg’s claims were barred by OCGA § 9-3-51 (a), which imposes an eight-year statute of repose on actions to recover for personal injuries resulting from a deficiency in the construction of an improvement to real property. Rosenberg argued, however, that, because [Falling Water] committed fraud, it should be equitably estopped from asserting a defense based upon the statute of repose.

(Footnotes omitted.) Id. at 78-79.

The trial court subsequently granted summary judgment to Falling Water based upon a finding that Rosenberg’s claims were barred by the statute of repose, OCGA § 9-3-51. The Court of Appeals thereafter affirmed the trial court, finding that Falling Water was not estopped from asserting a defense based on the statute of repose because Rosenberg’s injury occurred after the statute had run. Rosenberg now appeals this ruling, contending in essence that the doctrine of estoppel invalidates the statute of repose, even when a plaintiff receives no injuries prior to the running of the statutory period. For the reasons set forth below, we disagree.

This Court has repeatedly held that a statute of ultimate repose frames the time period in which a right may accrue, if at all. Therefore, if an injury occurs outside this time period, the injury is not actionable, as there is no longer even an inchoate right which may be brought to fruition by injury. See, e.g., Wright v. Robinson, 262 Ga. 844, 845 (1) (426 SE2d 870) (1993) (“A statute of repose stands as an unyielding barrier to a plaintiffs right of action.”); Simmons v. Sonyika, 279 Ga. 378, 379 (614 SE2d 27) (2005) (“A statute of ultimate repose delineates a time period in which a right may accrue. If the injury occurs outside that time period, it is not actionable”) (citations and punctuation omitted). “A statute of ultimate repose sets an ultimate limit on which injuries shall be actionable. Therefore, by definition, a statute of ultimate repose cannot be ‘tolled’ to permit actions to be brought for injuries which did not occur until after the statutory period had expired.” Hill v. Fordham, 186 Ga. App. 354, 357-358 (2) (367 SE2d 128) (1988).

The statute of repose applicable in this case provides that no action to recover damages for “injury to the person . . . arising out of. . . any deficiency in the . . . construction of an improvement to real property ... shall be brought against any person performing ... construction of such an improvement more than eight years after substantial completion of such an improvement.” OCGA § 9-3-51 (a) (1), (3). Here, the injuries sustained by Rosenberg occurred more than a decade after his home had been substantially completed by Falling Water. As a result, Rosenberg’s right to file suit against Falling Water never accrued, and, once eight years passed with no injury, even the possibility of such an accrued right was eliminated.

Based on Esener v. Kinsey, 240 Ga. App. 21 (522 SE2d 522) (1999),¹ and Hill v. Fordham, supra,² Rosenberg argues that he should be allowed to maintain suit against Falling Water because: (1) a question of fact remains whether Rosenberg fraudulently concealed a defect in the deck construction and (2) Falling Water should be equitably estopped from asserting the statute of repose defense if such fraud can be shown. Hill and Esener, however, do not support this conclusion. In both of these cases, the respective plaintiffs sustained and discovered injuries within the statute of repose. Each plaintiff delayed in filing suit until after the statute of repose’s expiration due to fraudulent acts by the respective defendants which were designed to prevent or discourage the plaintiffs from filing suit. Thus, in both of these cases, the plaintiffs right accrued within the time period set by the statute of repose, and fraudulent acts committed after the injury by a defendant prevented the plaintiff from pursuing this now viable right within the applicable statute of repose. Because the defendant’s fraudulent actions in each case prevented the plaintiff from pursuing a timely-accrued right, it was held that the defendant should be equitably estopped from asserting a defense based on the statute of repose. The Court of Appeals explained in Esener the reasoning behind this rule: “the statute of ultimate repose should not be applied to relieve a defendant of liability for injuries which occurred during the period of liability, but which were concealed from the patient by the defendant’s own fraud.” (Emphasis supplied.) Esener, supra, 240 Ga. App. at 22. In other words, the defendant would not be allowed to cause the plaintiff to miss the deadline imposed by the statute of repose and then use that same statute to defeat the plaintiffs otherwise viable action.

Rosenberg’s argument that the exception to the statute of repose set forth in these cases should be extended to his situation is logically untenable. In the present case, Rosenberg never held a timely-accrued right to bring suit against Falling Water for his personal injuries. As set forth above, Rosenberg was not personally injured until years after the statute of repose time period expired. Therefore, he has never had a viable cause of action to pursue. In addition, Falling Water has taken no action to prevent Rosenberg from discovering a cause for his injuries or to dissuade Rosenberg from filing suit with respect to his injuries, even if such a cause of action existed. In Hill and Esener, the defendant was estopped from relying on a deadline that the defendant purposefully caused the plaintiff to miss. Falling Water simply could not have caused Rosenberg to miss the deadline for filing suit for his personal injuries because those personal injuries did not even occur until the deadline had already passed.

Rosenberg maintains that this result is not equitable; however, it must be remembered that the statute of repose, itself, is a statutory construct based on considerations of fundamental fairness. The statute of repose represents an express determination by the Legislature of a time beyond which it is no longer fair to hold a defendant to be potentially liable for his actions.

[It is] the legislature’s intent, in enacting statutes of ultimate repose, to establish a reasonable outside time limit beyond which architects, engineers, and contractors are insulated from suit based upon their work in constructing improvements to real estate. See generally Benning Constr. Co. v. Lakeshore Plaza Enterprises, 240 Ga. 426, 427-428 (241 SE2d 184) (1977). Without such protection, such persons would be exposed to liability for many years after losing control over the improvements and their use and maintenance.

(Citation omitted.) Gwinnett Place Assoc., L.P. v. Pharr Engineering, Inc., 215 Ga. App. 53, 55 (1) (a) (449 SE2d 889) (1994). In light of this legislative mandate and our precedent which requires that the injury must happen within the applicable time period of the statute of repose for equitable estoppel to apply, the Court of Appeals properly affirmed the trial court’s grant of summary judgment to Falling Water.³

The dissent’s own statements of the law, as opposed to its statements of pure opinion, actually support the outcome described above and negate the dissent’s unfounded conclusion. For example, the dissent states that this majority creates “incongruous results” by treating personal injury claims and defective construction claims differently. The dissent, however, explicitly recognizes that a claim for property damage due to defective construction typically arises upon substantial completion of a project, while a claim for personal injury does not. This very observation proves that these two causes of action are fundamentally different and that the result here is not at all incongruous. To the contrary, the dissent’s discussion is internally inconsistent on this point. Furthermore, the dissent explicitly recognizes that a statute of repose is an “unyielding barrier” to a plaintiffs right of action. Yet, in the next breath, the dissent would eradicate this barrier by its own conclusion of where the law should be, not where it is. In short, the dissent bases its analysis on inaccurate comparisons between admittedly different causes of action and legal conclusions contrary to the very law it cites. As a result, the dissent provides no viable argument for reaching a different result.

Judgment affirmed.

All the Justices concur, except Hunstein, C. J., Carley, P. J., and Benham, J., who dissent.

1 In Esener, an improper delivery caused brain damage to a child, but the delivering gynecologist concealed any negligence and made the mother believe that the damage was caused by something else.

2 In Hill, there was evidence that a dentist knew of the existence of a wisdom tooth and the condition which allegedly caused patient’s pain and discomfort, and patient claimed he failed to seek further treatment or diagnosis of his condition in reliance on the dentist’s statement that the condition would resolve itself.

3 Rosenberg argues that the Court of Appeals endorsed the holding of Canton Lutheran Church v. Sovik, Mathre, Sathrum & Quanbeck, 507 FSupp 873 (S.D. 1981), in Hill v. Fordham, supra. That decision’s cursory citation to Canton Lutheran was not an endorsement of the proposition that a defendant can be barred through equitable estoppel from asserting the statute of repose as a defense when an injury occurred after the end of the repose period. In citing Canton Lutheran in Hill, the Court of Appeals noted only that “[ojther jurisdictions have held that the doctrine of equitable estoppel precludes a defendant from raising the defense of the statute of ultimate repose where there is evidence of fraud or other conduct on which the plaintiff reasonably relied in forbearing the bringing of a lawsuit.” (Emphasis supplied.) Hill, supra, 186 Ga. App. at 358 (2). Here, Rosenberg did not “forbear” the bringing of the lawsuit because the injury had not occurred and no right had accrued during the statute of repose. Furthermore, as the Court of Appeals pointed out in its opinion in Rosenberg v. Falling Water, Inc., the Canton Lutheran case is distinguishable in that it addressed a statute of limitation issue in a case where the plaintiff claimed fraudulent concealment. This difference is important since “[t]he statute of repose is absolute; the bar of the statute of limitation is contingent.” (Citation omitted.) Wright v. Robinson, supra, 262 Ga. at 845.