FINANCIAL ASSOCIATES, LTD., a Colorado joint venture, Petitioner, v. G.E. JOHNSON CONSTRUCTION COMPANY, INC., Individually; Michael H. Collins, Individually; Leland B. Roberts, Individually; Collins & Roberts, Architects, Inc., Individually; George D. Morris, Individually; Lincoln-Devore Testing Laboratory, Inc., Individually; Howard C. Dutzi, Individually; and Howard C. Dutzi & Associates, Inc., Respondents.
No. 84SC343.
Supreme Court of Colorado, En Banc.
June 23, 1986.
Rehearing Denied Aug. 25, 1986.
723 P.2d 135
We conclude the evidence presented at trial was sufficient to establish that petitioner was guilty of first degree murder and violent crime, and further conclude there was not prosecutorial misconduct sufficient to constitute plain error. Accordingly, we affirm the conviction by the jury.
Judgment affirmed.
Richard L. Harring, Edward J. Blieszner, Randall M. Livingston, Calkins, Kramer, Grimshaw & Harring, Denver, for petitioner Financial Associates, Ltd.
Kenneth Sparks, Barton L. Enoch, William J. Leone, Sparks, Dix, Enoch, Suthers & Winslow, Colorado Springs, for respondent G.E. Johnson Const. Co., Inc.
William H. Knapp, Knapp, Lee and York, Denver, for respondents Michael H. Collins, Leland B. Roberts and Collins & Roberts, Architects, Inc.
Edwin Strand, Strand and Meadows, Colorado Springs, for respondents George D. Morris and Lincoln-DeVore Testing Laboratory, Inc.
L. Tyrone Holt, Elsa D. Burchinow, Holt & Gebow, Denver, for respondents Howard C. Dutzi and Howard C. Dutzi & Associates, Inc.
We granted certiorari to review the decision of the court of appeals in Financial Associates, Ltd. v. G.E. Johnson Construction Company, Inc., 694 P.2d 345 (Colo.App.1984). The court of appeals affirmed the entry of summary judgment against the plaintiff Financial Associates, Ltd., on the ground that the action was barred by the applicable statute of limitations,
In March, 1973, the plaintiff contracted with one of the co-defendants, G.E. Johnson Construction Company, Inc. (Johnson), for the design and construction of a four story bank and office building in Colorado Springs. Johnson engaged co-defendants George D. Morris and Lincoln-DeVore Testing Laboratory, Inc. (Lincoln-DeVore) for soil engineering services. Johnson contracted for architectural services with another co-defendant, Collins & Roberts Architects, Inc. Collins & Roberts in turn contracted with co-defendant Howard C. Dutzi & Associates, Inc. (Dutzi) for structural engineering services. Construction of the building was substantially completed by July 1, 1974.
In 1978, the plaintiff noticed cracks in walls in the building‘s basement and a perceptible sloping or heaving of the basement floor. At the plaintiff‘s request, Lincoln-DeVore investigated the problem and submitted a report on January 11, 1979. The report attributed a “large amount of slab movement” to the expansion of porous soils beneath the building. The report stated that the cause of the soil expansion “quite possibly” was a broken water main in the area. Other possible causes of the soil expansion were a sprinkler system and several drywells near the building.
The Lincoln-DeVore report attributed cracking and distortion in the nonloadbearing basement partition walls to the fact that the plaintiff had constructed the partitions in a rigid manner rather than allowing them “to float with the floor slab as originally intended.” Lincoln-DeVore specifically stated that “[t]he damage encountered within the basement area cannot be considered of a structural nature.” It concluded that “the problems encountered during this inspection are probably not serious enough to cause a great deal of concern” and suggested that the plaintiff implement recommendations included in the report to forestall future problems.
In March and April of 1979, Howard Dutzi inspected the building at the plaintiff‘s request to determine why the first floor door to the two-story vault would not close. In a report dated April 11, 1979, Dutzi mentioned but dismissed building movement as the cause of the problem. He concluded that he was “completely at a loss” as to the cause of the problem although he suspected that the problem might be related to the expansive soil underneath the building.
On November 18, 1980, Lincoln-DeVore submitted a second report noting that the problems in the building were more widespread than originally thought. The report stated that in “portions of the foundation area, the footings rest directly upon expansive clays while in the remainder of the area the foundations rest on non-expansive sands.” The report linked both settlement and heaving to a dramatic increase in the amount of subsurface water in the Colorado Springs area. The report stated that “[c]onstruction precautions regarding the settlement of foundations on the sand are difficult to take, but design procedures have been developed in an attempt to limit the amount of heave which a foundation would undergo.” The design feature mentioned was the provision of a dead load pressure higher than the expansion potential of the clay. The report attributed some of the problems to the plaintiff‘s construction of the partition walls in a manner that transferred the load away from the column foundations, thereby “decreasing pressure at the footing line.” The report concluded that “a large percentage of the anticipated settlement has already occurred” and that “future movement should be ... of a much smaller magnitude than the building has already experienced.”
Thomas E. Summerlee and Associates, Inc., a soil and foundation engineering firm hired by the plaintiff to examine the problems in the building, detailed its investigation in a report dated August 20, 1982. The report first noted that the building had experienced about three inches of differential settling, that further settling of up to five and one-half inches might occur, and that such settling could seriously affect the building‘s structural integrity. The report attributed the settling to soils that became more compressible with increased depth. Identifying the cause of the problem, the report stated:
The existing spread footing foundations have exerted stresses on the underlying soil strata which are causing consolidation of those soils.... In our opinion, the bearing soils located beneath foundation elevations are not capable of carrying the structural loads imposed by the spread footing foundations without creating future excessive settlements.
The report also noted that “[t]he present settlement of the building foundations has caused distress to the building,” while distress to the partition walls in the basement was “probably due primarily to a combination of foundation settlement and heaving of the basement slab.” The report concluded that to solve the settlement problem it would be necessary to transfer the structural loads down to bedrock, 86 feet below the site grade, and recommended construction of piles or columns beneath the building.
In March, 1983, the plaintiff sued defendants, alleging negligent soil testing and negligent design and construction of the building. The defendants moved for summary judgment on the basis that the action was barred by
The plaintiff appealed to the court of appeals, contending that it did not have knowledge nor could it be charged with
I.
In Criswell v. M.J. Brock and Sons, Inc., 681 P.2d 495, 498-99 (Colo.1984), we recognized that
The court of appeals correctly identified the question presented here as “whether [the plaintiff] discovered, or in the exercise of reasonable diligence should have discovered, the defect which caused the injury to the building more than two years prior to the commencement of this action in 1983.” 694 P.2d at 346. Resolution of this question by way of summary judgment is appropriate only if there is no “genuine issue as to any material fact.” Jones v. Dressel, 623 P.2d 370, 373 (Colo. 1981). An issue of fact may arise from the existence of conflicting permissible inferences from evidence accepted as true. O‘Herron v. State Farm Mutual Automobile Insurance Co., 156 Colo. 164, 397 P.2d 227 (1964). Furthermore, we stated in O‘Herron that “where the undisputed evidence permits of offsetting inferences, the party against whom the motion for summary judgment is made ‘is entitled to all favorable inferences which may be reasonably drawn from the evidence and if when so viewed reasonable men might reach different conclusions the motion should be denied.‘” 156 Colo. at 171-72, 397 P.2d at 227 (quoting Caylor v. Virden, 217 F.2d 739, 741 (8th Cir.1955)).
The damage to the plaintiff‘s building is the injury for purposes of
Three possible causes of the injury, arguably unrelated to defects in design or original construction, are indicated in the reports received by the plaintiff between January 1979 and August 1982: soil expansion, foundation settlement, and faulty con-
This entire portion of Colorado Springs has apparently undergone a considerable change, in terms of subsurface water, during the recent past. Areas of soil which were originally of a low or fairly normal moisture content have risen dramatically as a result of large amounts of rain in the spring and changes in irrigation pattern in the upper basin.
It might well be that a reasonable fact finder could determine on the basis of the discussions of soil expansion in the first four reports that the plaintiff knew or should have known that its injury was caused at least in part by a defect, whether in the soil testing, the siting, the design or the construction of the building. However, in consideration of the entirety of the reports, especially the extracts referred to above, it would also be reasonable to infer that the soil expansion was not linked to a defect attributable to the defendants.
The primary focus of the courts below is on the time at which the plaintiff first learned that foundation settlement was a possible cause of its problems. On one hand, the district court and the court of appeals apparently decided that this knowl-edge was imparted to the plaintiff no later than the date of receipt of the second Lincoln-DeVore report in November 1980. The plaintiff, on the other hand, maintains that it was not until it received the Summerlee report on August 20, 1982, that it was aware of a “serious foundation settlement problem.” Some question about this assertion may be raised by the statement in the Chen report that “slight foundation movements may be attributed to approximately 20% of the observed distress.” However, as with the plaintiff‘s discovery that soil expansion might be a cause of its problems, its discovery that foundation settlement might be a contributing cause of its injury only caused the statute of limitations to begin to run if the discovery indicated a defect.
The plaintiff asserts that it had no knowledge that foundation movement was the result of a design defect until it received the Summerlee report. The court of appeals rejected this assertion stating that “[a]lthough the Summerlee report propose[d] some new solutions, it [did] not add any new fact relating to the nature of the defects which ... caused damage to the building.” 694 P.2d at 348. Our reading of the Summerlee report persuades us that there are differences between it and the preceding reports that create conflicting reasonable inferences about the existence of a design defect associated with foundation settlement. In the first place, the discussion of foundation settlement in the reports preceding the Summerlee report is interwoven with discussion of problems with the soil immediately underlying the building. It would not be unreasonable to conclude that the settlement problem was linked to the soils problem that was in turn the product of forces and activities beyond the control of the defendants. More significantly, the second Lincoln-DeVore report suggests that the defendants took reasonable precautions against foundation settlement. In the Summerlee report, in contrast to the previous reports, the foundation settlement is attributed directly to the foundation footings that imposed loads which the soils beneath the building were
In sum, even assuming that the plaintiff knew of its injury, and might have been aware of the possible causes of its injury more than two years before bringing this action, the information contained in the reports does not so clearly point to the existence of a defect in the improvement that it can be held as a matter of law that the plaintiff should have discovered that the defect caused the injury. Because the reports could support conflicting inferences as to the plaintiff‘s knowledge of the existence of a causally related defect, an issue of material fact is presented and an entry of summary judgment is unwarranted.1
The judgment of the court of appeals is reversed and the case is remanded for return to the district court for further proceedings in accordance with this opinion.
VOLLACK, J., dissents.
ERICKSON and ROVIRA, JJ., join in the dissent.
VOLLACK, Justice, dissenting:
I disagree with the majority‘s conclusion that the district court erred in entering summary judgment against the petitioner. Accordingly, I respectfully dissent.
The statute of limitations involved here,
In this case, the plaintiff knew of the injury in 1978. Subsequently, the plaintiff received five different reports which were prepared in an effort to determine the cause of the injury. Different theories were propounded by different experts, and the correct conclusion remains a matter of expert opinion. As early as January 11,
If knowledge of the specific cause of an injury is the standard, a party could wait to bring an action far beyond a reasonable time when sufficient notice has been received of a possible invasion of one‘s legally protected interests. Knox College v. Celotex Corp., 88 Ill.2d 407, 58 Ill.Dec. 725, 430 N.E.2d 976, 980 (1981). Based upon the first four reports received by plaintiff in this case, I would conclude the plaintiff had sufficient information to cause a reasonable person to inquire further as to the existence of a claim for relief. The accrual of a claim for relief does not await the awareness by the injured party that an injury was negligently inflicted, nor does it await the acquisition of knowledge of facts which would alert a reasonable person to suspect that a legal duty to him had been breached. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). I dissent from the majority‘s conclusions because I do not believe it is necessary that the injured party be fully aware of the exact defect or its seriousness before a claim for relief arises. Tamblyn v. Mickey & Fox, Inc., 39 Colo.App. 319, 568 P.2d 491, 493 (1977), rev. on other grounds, 195 Colo. 354, 578 P.2d 641 (1978).
Normally, the issue of whether the statute of limitations bars a particular claim is a factual question. Owens v. Brochner, 172 Colo. 525, 474 P.2d 603 (1970); Davis v. Bonebrake, 135 Colo. 506, 313 P.2d 982 (1957). However, based upon the undisputed evidence contained in the reports prepared for plaintiff, I would conclude as a matter of law that the claim for relief arose no later than the receipt of the second Lincoln-DeVore report in November of 1980. Despite plaintiff‘s contention that it did not know of the specific defect until the August 1982 Summerlee report, based on the four previous reports, I would conclude that at least in the exercise of reasonable diligence the plaintiff should have discovered the defect in the building. Instead, plaintiff waited over two years to have the fifth report prepared. The law aids the vigilant, and not those who slumber on their rights.
In effect, the majority‘s conclusion that the statute of limitations does not begin to run until the plaintiff discovers or should have discovered the specific defect that causes the injury may preclude the commencement of the limitations period in any actions of this kind. To defeat the statute of limitations defense, the majority concludes that a plaintiff needs only to raise the issue of when the specific defect which caused the injury was discovered. Even where the evidence is undisputed, the mere existence of possible “offsetting inferences” would defeat a summary judgment motion based on the statute of limitations defense. Undoubtedly, such an argument could be made in most cases.
I conclude the two year statute of limitations bars the maintenance of this action, and further conclude there is no genuine issue of fact involved in such a determination. I would affirm the conclusions of both the trial court and the court of appeals.
I am authorized to say that Justice ERICKSON and Justice ROVIRA join in this dissent.