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Tomlinson v. Douglas Knight Construction, Inc.

Supreme Court of Utah

August 29, 2017

Joseph Tomlinson, Appellant,
v.
Douglas Knight Construction, Inc., et al., Appellees. Douglas Knight Construction, Inc., Third-Party Plaintiff/Cross-Appellant,
v.
Superior Insulation Co., Inc., et al., Third-Party Defendants/Cross-Appellees.

         On Direct Appeal

         Third District, Salt Lake The Honorable Ryan M. Harris No. 100500668

          Joseph E. Wrona, Bastiaan K. Coebergh, Derek J. Onysko, Jarom B. Bangerter, Park City, for Joseph Tomlinson

          Jesse C. Trentadue, Noah M. Hoagland, Britton R. Butterfield, Jason R. Mullis, Salt Lake City, for Douglas Knight Construction, Inc.

          Brett N. Anderson, Scott R. Taylor, Salt Lake City, for Superior Installation Co., Inc.

          Scott T. Evans, Sarah E. Spencer, Gabriel K. White, Salt Lake City, for Picture Perfect Stone Masonry, LLC

          Kumen L. Taylor, Richard L. Wade, Las Vegas, NV, for Akita Construction, Inc.

          Associate Chief Justice Lee authored the opinion of the Court, in which Chief Justice Durrant, Justice Durham, Justice Himonas, and Justice Pearce joined.

          OPINION

          Lee, 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 assignee.

         I

         ¶ 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 ...


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