Tadych v. Noble Ridge Construction, Inc.

GREGORY M. TADYCH and R. SUE TADYCH, a married couple, Appellants, v. NOBLE RIDGE CONSTRUCTION, INC., a Washington Corporation; and WESCO INSURANCE CO., a foreign surety, Bond No.46WB025486, Respondents.

No. 81948-8-I

Court of Appeals of Washington, Division 1

July 19, 2021

UNPUBLISHED OPINION

Andrus, A.C.J.

Gregory and R. Sue Tadych challenge the summary judgment dismissal of their complaint against Noble Ridge Construction Inc. (NRC) for breach of their construction contract. The trial court dismissed the Tadychs' complaint, concluding that a one-year claim limitations period had expired, making their claim time barred. The Tadychs argue that the claim limitation clause is unenforceable or, alternatively, that NRC should be estopped from asserting it. We disagree and affirm the dismissal.

FACTS

In 2012, the Tadychs and NRC entered into a written agreement for the construction of a custom home in south Seattle. The Tadychs received a draft of the contract on July 22, 2012 and reviewed it for a few weeks before they signed it. They did not seek legal advice, and they signed the contract without requesting any changes to its terms.

For a base price of $485, 068, NRC, as the contractor, agreed to provide all necessary labor and materials to construct the Tadychs' residence "in accordance with the Plans and Specifications and (if applicable) Changes Orders accepted and agreed to by the parties hereto." The plans and specifications were incorporated by reference into the agreement. The Tadychs and NRC agreed that neither party would deviate from the plans and specifications without a mutual written agreement to do so. NRC further agreed it would "supervise and direct the Project using reasonable skill and attention and shall satisfy the building codes and standards of municipalities or other governmental agencies with jurisdiction over the Project."

The contract provided that the project would be deemed completed when the building official with jurisdiction over the project established that the home had been built in accordance with the approved plans and specifications and permits, and issued a certificate of occupancy. Upon substantial completion and before occupancy, NRC and the Tadychs agreed they would meet at the project site for a walk-through inspection and prepare a list, referred to as a "punchlist," identifying all components of the project that needed to be completed or corrected.

The contract's warranty provision provided in pertinent part:

Warranty. . . . Any claim or cause of action arising under this Agreement, including under this warranty must be filed in a court of competent jurisdiction within one year (or any longer period stated in any written warranty provided by the Contractor) from the date of Owner's first occupancy of the Project or the date of completion as defined above, whichever comes first. Any claim or cause of action not so filed within this period is conclusively considered waived. . . .

In December 2013, as the project neared completion, the Tadychs worked with NRC to develop a punchlist of incomplete items. One issue they listed was that "rainwater pools at the landing at the bottom of the stairs." Greg Tadych testified that he personally expressed concern to NRC about this issue throughout the course of the construction. To address pooling rainwater, NRC sketched a proposed modification to the landing proposing to slope it away from the door threshold toward a drain scupper. Greg Tadych testified NRC implemented this fix. The parties' revised punchlist, dated April 2, 2014, reflects that NRC poured a sloped cement surface on the landing and installed tile to direct rain water toward the gutter. The punchlist identified this line item as "closed."

Another item on the December 2013 punchlist was "[n]umerous nicks and cracks on the stucco exterior walls." The revised April 2014 punchlist indicated that "[s]ome work has been done on stucco" and the item remained "open." There is no indication in the record that NRC performed any further work on the exterior stucco to address the identified cracks.

The Tadychs moved into the home on April 8, 2014. The City of Seattle Department of Planning and Development conducted its final site inspection on April 15, 2014, and approved the residence for occupancy on April 23, 2014.

Sue Tadych testified that in late January or early February 2015 she felt a "shift" in the home "as though there had been some unexpected movement in the Project's structure." She reported that "in February 2015 she was working in the first floor office/bedroom at the N.W corner when she heard 'a loud rubbing noise' and it 'felt as though the house shifted south and then down.'" After this event, she noticed that the door to the back patio was no longer even with the casing, there were "humps in the flooring when walking into the master closet and the powder room on the second floor that were not present before the event," the bathtub was no longer level and tilted to the south, floor tiles under and adjacent to the toilet came loose, doors to the roof deck no longer shut properly, and cracks in the drywall appeared.

In February 2015, concerned about this incident, the Tadychs engaged Construction Dispute Resolution, Inc. (CDR) to review NRC's work. According to the consultant agreement the Tadychs signed, CDR provides "consulting and expert witness services relative to construction litigation." For the sum of $1, 300, CDR agreed to "[r]eview flooring issues and shift of structure. Advise Client as requested."

CDR raised concerns about the adequacy of the home's construction in its correspondence with the Tadychs. On March 2, 2015, CDR prepared a written report indicating it had identified deviations from the architectural plans and the potential risk of inadequate ventilation of the interstitial areas within the framing of the home. CDR wrote

All enclosed roof and exposed deck areas together with parapet walls and railings need to be ventilated unless they are completely filled with foam insulation. This is due to the fact that water may condense within the spaces where a conditioned space is adjacent to an unconditioned space; for instance a roof or exterior wall.

. . . .

[I]n just looking at the photographs of your home and comparing them to the details on the plans we are concerned that there is insufficient ventilation in your walls and roof structures. We are unclear as to whether the architect had issued different designs/directions for the builder to achieve the ventilation required but the lack of 6 inch round holes around your building to ventilate the roof areas and the fact that the metal copings are tight to the walls at your roof parapets indicate the ventilation may not be in place. Together with that, at the roof deck, there is no parapet cap flashing at the metal clad railings. It is a mystery how these are vented.

In summary, either we assume that somehow the architect and builder have achieved the necessary code mandated ventilation as dictated by the plans or some investigative work will have to occur to verify

(Emphasis added). It also stated that the stairs and railings did not conform to the building code or to the plans. CDR noted it could not complete its recommended investigation within the $1, 300 previously budgeted amount.

Sue Tadych forwarded CDR's report to Jason Wojtacha, the president of NRC, asking for clarification regarding the ventilation. On March 16, 2015, Wojtacha responded questioning why the Tadychs had hired a "litigation expert." He assured the Tadychs that NRC had exercised "extra care in achieving the ventilation requirements" for their home. Wojtacha stated that "whatever technique is used is often changed in the field as the conditions on site often change." He stated that there were several different methods of achieving the necessary venting requirements, the 6-inch vents were not aesthetically pleasing, and there was adequate room and ventilation between the floor trusses and the pre-sloped roof trusses. He contended that he had discussed this issue with the Tadychs at the time the change occurred.^[1] Wojtacha stated that the home had a ventilating rain screen system that could not be seen and that system put their "home [] in top 5% of our region, maybe even 1%, in dealing with moisture/vapor and dew points in the northwest region." Wojtacha stated that the rain screen was specifically designed to allow vapor out of the house without allowing additional vapor in by creating a one-fourth inch gap between the wall panels and the stucco. With this system, coupled with the "HRV unit on the inside [of the house] monitoring humidity levels and air flow, you are more than covered" with regard to ventilation.

With regard to the stairs and railings, Wojtacha rejected CDR's contention that they were non-conforming. "[T]he building inspector looked at those areas as well. We specifically had a correction on the roof stair and railing that the inspector zero'd [sic] in on, and he was the one who gave us the remedy to [p]ass the final." He explained that they had had "some minor physical constraints to work with" and asked for clarification from CDR as to what it believed to be non-conforming.

On March 30, 2015, Sue Tadych met with CDR and Wojtacha at the home to discuss the issues CDR had identified in its report including unlevel flooring, the ventilation issues, and the possibility that the house had settled. According to Sue Tadych, Wojtacha assured her and CDR that there were no issues to be concerned about and that "some settling of like projects was normal and expected." Following this meeting, NRC agreed to repair and did repair some uneven flooring in the master bedroom closet.

On March 13, 2016, Greg...