Lakemont Ridge Homeowners Ass'n v. Lakemont Ridge Ltd. P'ship
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 76850-1
Title of Case: Lakemont Ridge Homeowners Association v.
Lakemont Ridge Limited Partnership
File Date: 04/06/2006
SOURCE OF APPEAL
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Appeal from Superior Court,
King County
02-2-31523-2
Honorable Suzanne M Barnett
JUSTICES
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Authored by Charles W. Johnson
Concurring: James Johnson
Barbara A. Madsen
Bobbe J Bridge
Gerry L Alexander
Richard B. Sanders
Susan Owens
Tom Chambers
Mary Fairhurst
COUNSEL OF RECORD
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Counsel for Petitioner(s)
Daniel J Dewalt
Goff & DeWalt LLP
3226 Rosedale St NW Ste 100
Gig Harbor, WA 98335-1806
Robert Kendall Goff
Goff & DeWalt LLP
3226 Rosedale St NW Ste 100
Gig Harbor, WA 98335-1806
Kenneth Wendell Masters
Wiggins & Masters PLLC
241 Madison Ave N
Bainbridge Island, WA 98110-1811
Counsel for Respondent(s)
Lori Kay McKown
Preg O Donnell & Gillett PLLC
1800 9th Ave Ste 1500
Seattle, WA 98101-1340
Mark F. O'Donnell
Preg O Donnell Et Al
1800 9th Ave Ste 1500
Seattle, WA 98101-1340
David M Poore
Preg O'Donnell & Gillett PLLC
1800 9th Ave Ste 1500
Seattle, WA 98101-1340
Amicus Curiae on behalf of Washington Homeowners Coalition
Michelle Andrea Ein
Levin & Stein
201 Queen Anne Ave N Ste 400
Seattle, WA 98109-4824
Marlyn Kathryn Hawkins
Barker Martin PS
719 2nd Ave Ste 1200
Seattle, WA 98104-1749
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
LAKEMONT RIDGE HOMEOWNERS )
ASSOCIATION, a Washington non-profit ) No. 76850-1
corporation, )
)
Petitioner, )
) En Banc
v. )
)
LAKEMONT RIDGE LIMITED )
PARTNERSHIP, a Washington limited )
partnership; POLYGON BUILDERS )
COMPANY, a Washington general )
partnership; CRESCENT BEACH, INC., )
a Washington corporation; LAKEMONT )
RIDGE II, L.L.C., a Washington )
limited liability company; POLYGON )
NORTHWEST COMPANY, a Washington )
general partnership; BRENTVIEW, INC., )
a Washington corporation; and JOHN )
and MARY DOES, one through two )
hundred, )
)
Respondents. )
) Filed April 6, 2006
C. JOHNSON, J. This case involves statutory construction of two notice
provisions of chapter 64.50 RCW relating to construction defect claims.
RCW 64.50.020(1) requires a homeowner to give at least 45 days' notice to a
construction professional before filing a construction defect lawsuit,
giving the construction professional an opportunity to cure defects. RCW
64.50.050(1), however, requires the construction professional to give
notice to the homeowner of the prelitigation notice requirement when the
parties enter into a contract for sale, construction, or substantial
remodel of a residence.
The condominiums at issue were constructed before chapter 64.50 RCW took
effect and thus, the construction professionals (Lakemont Ridge) did not
give the homeowners notice of the prelitigation requirement. Lakemont
Ridge Homeowners Association (Association) did not give prelitigation
notice before filing the lawsuit. Lakemont Ridge appealed the trial
court's denial of its motion to dismiss. The Court of Appeals reversed.
We reverse the Court of Appeals and hold that the prelitigation notice
requirement becomes operative only where the construction professionals
have given prior notice to the homeowner of the requirement.
FACTS
The Lakemont Ridge Condominium is a multiunit residential development
constructed in several phases between 1994 and 1997 in Bellevue,
Washington. The Association is comprised of owners of condominiums and
common areas in the development. Defendants are construction professionals
who participated in the construction of the development.
Chapter 64.50 RCW, the construction defect claims act (Act), contains
several notice requirements. The Act became effective June 13, 2002, and
thus was not in effect when the construction professionals started the
development. Accordingly, Lakemont Ridge did not provide the Association
or individual condominium purchasers with notice under RCW 64.50.050(1).
The Association filed a lawsuit on October 29, 2002, asserting several
claims relating to construction defects. The Association did not provide
Lakemont Ridge with prelitigation notice under RCW 64.50.020(1). Thus, we
must decide whether the statute requires the Association to give
prelitigation notice.
ANALYSIS
Statutory interpretation is a question of law which we review de novo. Our
primary duty in interpreting any statute is to discern and implement the
intent of the legislature. Our starting point must always be the statute's
plain language and ordinary meaning. "'Statutes must be interpreted and
construed so that all the language used is given effect, with no portion
rendered meaningless or superfluous.'" State v. J.P., 149 Wn.2d 444, 450,
69 P.3d 318 (2003) (quoting Davis v. Dep't of Licensing, 137 Wn.2d 957,
963, 977 P.2d 554 (1999) (internal quotation marks omitted)).
The legislature enacted chapter 64.50 RCW in 2002, after finding that
"limited changes in the law are necessary and appropriate concerning
actions claiming damages, indemnity, or contribution in connection with
alleged construction defects." RCW 64.50.005. The legislature stated, "It
is the intent of the legislature that this chapter apply to these types of
civil actions while preserving adequate rights and remedies for property
owners who bring and maintain such actions." RCW 64.50.005. The statute
applies to construction defect "actions," defined as "{a}ny civil lawsuit
or action in contract or tort for damages or indemnity brought against a
construction professional to assert a claim . . . for damage or the loss of
use of real or personal property caused by {a construction defect}." RCW
64.50.010(1).
The statute has two notice requirements. The requirement placed on the
claimant is found in RCW 64.50.020(1), which provides:
In every construction defect action brought against a construction
professional, the claimant shall, no later than forty-five days before
filing an action, serve written notice of claim on the construction
professional. The notice of the claim shall state that the claimant
asserts a construction defect claim against the construction professional
and shall describe the claim in reasonable detail sufficient to determine
the general nature of the defect.
The requirement placed on the builder/contractor is found in RCW
64.50.050(1), which states in relevant part:
The construction professional shall provide notice to each homeowner upon
entering into a contract for sale, construction, or substantial remodel of
a residence, of the construction professional's right to offer to cure
construction defects before a homeowner may commence litigation against the
construction professional.
RCW 64.50.050(2) provides that the notice required by this subsection shall
be in substantially the following form:
CHAPTER 64.50 RCW CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW BEFORE
YOU MAY FILE A LAWSUIT FOR DEFECTIVE CONSTRUCTION AGAINST THE SELLER OR
BUILDER OF YOUR HOME. FORTY-FIVE DAYS BEFORE YOU FILE YOUR LAWSUIT, YOU
MUST DELIVER TO THE SELLER OR BUILDER A WRITTEN NOTICE OF ANY CONSTRUCTION
CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE YOUR SELLER OR BUILDER THE
OPPORTUNITY TO MAKE AN OFFER TO REPAIR OR PAY FOR THE DEFECTS. YOU ARE NOT
OBLIGATED TO ACCEPT ANY OFFER MADE BY THE BUILDER OR SELLER. THERE ARE
STRICT DEADLINES AND PROCEDURES UNDER STATE LAW, AND FAILURE TO FOLLOW THEM
MAY AFFECT YOUR ABILITY TO FILE A LAWSUIT.
Finally, RCW 64.50.050(3) states the following:
This chapter shall not preclude or bar any action if notice is not given to
the homeowner as required by this section.
The Court of Appeals held the statute unambiguously requires the
Association to give prelitigation notice, regardless of whether the
construction professionals provided notice under RCW 64.50.050. Lakemont
Ridge Homeowners Ass'n v. Lakemont Ridge L.P., 125 Wn. App. 71, 104 P.3d 22
(2005).1 The court reasoned that since the statute does not state it is
applicable only to construction projects begun after the effective date of
the chapter, the prelitigation notice requirement applies to every
construction defect action. The court also relied on the fact that
subsequent purchasers must give prelitigation notice, despite the fact that
those homeowners will likely not have received any personal notice of their
obligation to do so. Finally, the court presumed the legislature at the
time the chapter was passed did not intend to delay for many years the
effect of mitigating the expense and delays of construction defect suits
for all projects existing or begun before the Act's effective date.
Lakemont Ridge, 125 Wn. App. at 75. Thus, the Court of Appeals held the
prelitigation notice requirement applied to the Association's lawsuit.
The Association argues that by including two unambiguous notice
requirements, the legislature intended to establish two categories of
claimants. It contends that the first category consists of homeowners who
already had contracted for the purchase or substantial remodel of a
residence when the Act took effect. Further, it argues the legislature
recognized that these claimants, who had vested rights and expectations on
the Act's effective date, could not be provided with the required notice at
the time they entered into their contract with the construction
professionals. Since RCW 64.50.050(3) provides the chapter shall not
preclude or bar any action if notice is not first given to the homeowner,
it argues the legislature intentionally exempted this category of
homeowners from the prelitigation notice requirement. The second category
consists of homeowners who enter into contracts for the purchase and
remodel of a residence after the Act's effective date. Under RCW
64.50.050(3), the prelitigation notice requirement applies to them only if
the construction professional gives notice at the time the parties contract
for the purchase or remodel of a residence.
Lakemont Ridge responds to the Association's contention that the statute
created two classes of claimants, arguing there is nothing in the statute
or legislative history that specifically addresses what happens when a
lawsuit is filed after the statute became effective, but the buildings were
completed and sold before the notice requirement existed. Because the
construction professionals could not have known to give notice of the
prelitigation notice requirement when they entered into the contract for
sale and construction of the condominiums, Lakemont Ridge argues the
construction professionals' failure does not render the prelitigation
notice requirement inapplicable to the homeowners. Since the Association
filed the lawsuit after the statute was enacted, Lakemont Ridge argues the
Association must follow the statute and give prelitigation notice. The
Association failed to give prelitigation notice; Lakemont Ridge argues the
trial court erred in not granting its motion to dismiss.
However, we find nothing in the Act suggesting that the prelitigation
notice requirement is remedial legislation requiring retroactive
application of that section alone. The entire Act became effective in June
2002. Therefore, since each provision of the Act must be given effect with
no portion rendered meaningless, and the Act states it "shall not preclude
or bar any action"2 if the "construction professional fails to give the
homeowner notice," the Association's action cannot be precluded or barred
for failing to give prelitigation notice.
Lakemont Ridge also argues the language of the statute supports its
position. Specifically, Lakemont Ridge contends the use of the phrase
"every construction defect action" in RCW 64.50.020(1) but not in RCW
64.50.050(1) means the legislature intended that only the prelitigation
notice provision, not the notice of the prelitigation notice provision,
applies to every action. Lakemont Ridge also points to language in RCW
64.50.050(3) referencing the notice to homeowners "as required by this
section" as evidence the legislature intended to limit the actions to which
the notice to homeowners applies. It argues that since "this section" did
not exist at the time it constructed the development, the notice required
by RCW 64.50.050 is inapplicable to this case. This technical reading,
however, would eliminate one of the two explicit notice requirements of the
Act. We must construe the statute to give effect to each provision and
consider the language in the context of the entire statutory scheme. The
legislature placed RCW 64.50.050(3), which refers to the notice "as
required by this section" right after RCW 64.50.050(2), which dictates the
form of the notice. Read in context, we conclude this phrase refers to the
form of the notice required by RCW 64.50.050 and not, as argued by Lakemont
Ridge, to when the notice is required.
The statute unambiguously establishes two distinct notice requirements.
These provisions of chapter 64.50 RCW operate together to achieve the
legislature's dual goals of reducing potentially burdensome and expensive
construction defect litigation and preserving rights and remedies for
property owners. We construe the statute to give effect to both notice
provisions. At the beginning of the parties' relationship, the
construction professional must notify the homeowner of the construction
professional's right to notice and the opportunity to cure any defects.
RCW 64.50.050(1). If the construction professional fails to provide the
notice required by this section, the Act ensures that the homeowner's
failure to give prelitigation notice "shall not preclude or bar any
action." RCW 64.50.050(3). However, if the construction professional
provides notice of the prelitigation notice requirement, the homeowner must
give prelitigation notice of the alleged defects and follow the statutory
procedures designed to avoid litigation. RCW 64.50.020(1).
This interpretation gives effect to each notice provision of chapter 64.50
RCW. This interpretation is also consistent with the express purpose the
legislature cited when enacting the statute: preserving adequate rights and
remedies for property owners. The development was constructed before this
statute became effective. Therefore, when the legislature enacted this
statute, the Association had a right to file a construction defect lawsuit
without giving prelitigation notice. The legislature stated it intended
this statute to preserve, not restrict, the homeowners' rights. The
position advanced by Lakemont Ridge and adopted by the Court of Appeals
conditions the Association's right to file its lawsuit on providing
prelitigation notice, thereby burdening the homeowners' existing rights and
remedies, not preserving them. We reject this position because it
conflicts with the legislature's statement of intent.
CONCLUSION
Since Lakemont Ridge did not give the Association notice of the
prelitigation notice requirement, the Act does not require the Association
to give prelitigation notice. Therefore, the trial court properly denied
Lakemont Ridge's motion to dismiss. Under the plain language of the
statute, we reverse the Court of Appeals and remand to the trial court.
WE CONCUR:
1 Judge Becker dissented on the grounds that the statute unambiguously
requires the construction professional to give notice of the prelitigation
notice requirement before that requirement becomes effective. She also
examined the legislative history and concluded that the Act was "obviously
the product of a legislative compromise concerning a bill backed by the
construction industry." Lakemont Ridge, 125 Wn. App. at 76 (Becker, J.,
dissenting). She concluded that the Association's interpretation furthered
the legislature's dual goals of reducing litigation costs and protecting
unwary homeowners from dismissal if they file too close to the statute of
limitations. She noted that although the failure to comply with the
prelitigation notice requirement results in dismissal without prejudice
under RCW 64.50.020(6), plaintiffs who fail to give prelitigation notice
may still be unable to refile that claim if the statute of limitation runs
before the claim is dismissed. Sixty-day tolling provisions are available
but are triggered only when prelitigation notice is served.
2 RCW 64.50.050(3).