District, Salt Lake The Honorable Ryan M. Harris No.
E. Wrona, Bastiaan K. Coebergh, Derek J. Onysko, Jarom B.
Bangerter, Park City, for Joseph Tomlinson
C. Trentadue, Noah M. Hoagland, Britton R. Butterfield, Jason
R. Mullis, Salt Lake City, for Douglas Knight Construction,
N. Anderson, Scott R. Taylor, Salt Lake City, for Superior
Installation Co., Inc.
T. Evans, Sarah E. Spencer, Gabriel K. White, Salt Lake City,
for Picture Perfect Stone Masonry, LLC
L. Taylor, Richard L. Wade, Las Vegas, NV, for Akita
Associate Chief Justice Lee authored the opinion of the
Court, in which Chief Justice Durrant, Justice Durham,
Justice Himonas, and Justice Pearce joined.
Associate Chief Justice.
1 Utah Code section 78B-4-513(1) provides that "an
action for defective design or construction is limited
to" an action for "breach of . . . contract,
whether written or otherwise, including both express and
implied warranties." The statute also states that such a
claim may be brought only by a person who is "in privity
of contract with the original contractor" or by a person
with a right to sue as an assignee of a person in privity.
Id. § 78B-4-513(4), (6). In this case the
district court dismissed a homebuyer's construction
defect claims against the company that built his home. We
affirm that decision on the ground that the homebuyer was not
in privity with the contractor and had no right to sue as an
2 This case began when Lot 84 Deer Crossing, a single-purpose
LLC, acquired a piece of property. Lot 84 then entered into
an agreement with Douglas Knight Construction, Inc. (DKC) to
build a house on the property. In that agreement DKC agreed
to provide a one-year warranty on the construction:
"Contractor further warrants the Work as per Utah state
code for a period of one year." Lot 84 subsequently
assigned all its rights to the home and the construction
agreement to Outpost Development, Inc.
3 As construction on the home neared completion, Outpost sold
the home to Joseph Tomlinson. Outpost did not, however,
assign its interest in the construction agreement to
Tomlinson, even though several construction defects had
already come to light prior to the sale.
4 The most glaring defect was a leak that caused significant
water damage. Pursuant to the express one-year warranty in
the construction agreement, Outpost asked DKC to repair the
defects. But despite DKC's efforts to do so, Tomlinson