Klinker v. Beach

VALDINE KLINKER,
Plaintiff and Appellant,
v.
FLOYD BEACH and BILL BEACH,
Defendants and Appellees.

South Dakota Supreme Court
Appeal From The First Judicial Circuit, Lincoln County, SD
Hon. Richard Bogue, Judge
#19272 -- Affirmed

Robert J. Breit, Sioux Falls, SD
Attorney for plaintiff and appellant.

David M. Buechler, Parker, SD
Attorney for defendants and appellees.

Considered On Briefs Mar 12, 1996; Opinion Filed May 15, 1996

GILBERTSON, Justice.

[1] Valdine Klinker appeals from the trial court's order granting summary judgment in favor of Floyd and Bill Beach. We affirm.

FACTS AND PROCEDURE

[2] Floyd and Bill Beach, father and son, formed a partnership to construct a home in 1977. Following its completion, Bill Beach lived in the home for one year. Bill Beach claimed to have no problems with the home during the time in which he occupied it. In 1980, Valdine Klinker and her husband, now deceased, purchased the home from Beaches. Klinkers and Beaches entered into a Real Estate Purchase Agreement in which Klinkers agreed to purchase the home in its "as is" condition. This agreement referenced the fact that the buyers had inspected the property. No representations were made to the Klinkers by the Beaches about the property other than what was contained within the purchase agreement.

[3] Klinker stated she first noticed problems with water coming into the home in 1992. Klinker retained a contractor to fix the problem. While in the crawl space to lay plastic in Klinker's basement, the contractor discovered gaps between the corners of the foundation walls. The contractor alleges these gaps appeared because the corner blocks were not overlapped correctly by the Beaches when they built the home. The contractor also noted the cement steps in front of the home were sloped downward. The contractor alleges the steps sloped because the dirt underneath was not packed properly.

[4] Klinker hired this same contractor to fix her kitchen countertops that she claims had sunk 1/8 of an inch after she had replaced her dishwasher in 1993. The contractor discovered that scrap materials, including rubber hose, had been used as shims. The contractor alleges this practice is against the industry standards, which requires the use of pre-made shims. Klinker alleges the Beaches also used coat hanger wire instead of plumbing strap to hang the basement pipes, and an extension cord instead of electrical wire to complete an electrical circuit.

[5] The contractor further discovered the foundation of the home had previously cracked and these cracks had been filled with mortar and the interior walls of the foundation covered with styrofoam insulation. The contractor also found the plate material, tying the foundation to the floor, was made of scrap pieces of wood rather than one piece of board. According to the contractor, using one piece of board is common construction industry practice. Lastly, the contractor found the foundation of the home was not reinforced with re-bar. Klinker alleges Beaches' failure to reinforce the foundation with re-bar caused the foundation to bow in and, as a result, the foundation had to be replaced.

[6] Klinker brought an action against the Beaches in 1995, three years after she first noticed these problems, to recover her damages for Beaches' alleged faulty workmanship in constructing the home. Beaches answered and moved for summary judgment, citing the ten-year statute of limitations in SDCL 15-2A-1 and 15-2A-3. Beaches stated, by affidavit in support of their motion for summary judgment, that the basement was used as a game room when Bill Beach lived in the house and that the cracks were repaired and styrofoam insulation placed on the wall to make the room more comfortable and to save on fuel costs. Beaches further testified by affidavit that the basement was constructed by a reputable sub-contractor in the area, that drain tile and construction-grade gravel were properly installed, and that no rubber hose was used as shim material.

[7] The trial court found the ten-year statute of limitations under SDCL 15-2A-1 and 15-2A-3 applied to defeat Klinker's action and granted Beaches' motion for summary judgment. Klinker appeals, raising the following issue:

Whether Beaches are guilty of "fraudulent concealment" such that would toll the statute of limitations set forth in SDCL 15-2A-1 and 15-2A-7?

[8] Our standard of review on a motion for summary judgment is well established. We must determine:

whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. Our task on appeal is to determine whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of summary judgment is proper.

Parkhurst v. Burkel, 1996 SD 19, 6, 544 NW2d 210, 212 (quoting Henry v. Henry, 534 NW2d 844, 846 (SD 1995)). This standard of review also applies on a motion for summary judgment where fraudulent concealment has been alleged. See Koenig v. Lambert, 527 NW2d 903, 904 (SD 1995).

[9] Whether the Beaches are guilty of "fraudulent concealment" such that would toll the statute of limitations set forth in SDCL 15-2A-1 and 15-2A-7?

[10] This is our first opportunity to interpret SDCL Ch 15-2A.{1} SDCL 15-2A-1 provides the following statement of the intent of the Legislature concerning the scope of this chapter: