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Casto v. Dupuy

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 1999 Term
No. 25406
JOHN CASTO and CONNIE CASTO, his wife,
Plaintiffs Below, Appellants

V.
LARRY DUPUY, individually, and LARRY DUPUY
d/b/a PROFESSIONAL HOME INSPECTION AND RADON
TESTING, and MOLTON, ALLEN & WILLIAMS MORTGAGE
CORP., Defendants Below, Appellees

Appeal from the Circuit Court of Kanawha County
Honorable Tod J. Kaufman, Judge
Civil Action No. 96-C-2331

REVERSED

Submitted: February 17, 1999
Filed: March 26, 1999  
Desiree Halkias Divita   David R. Bungard  
Shuman, Annand, Bailey,                                           Robinson & McElwee  
Wyant & Earles                                                         Charleston, West Virginia  
Charleston, West Virginia                                          Attorney for Appellee  
Attorney for Appellants                                              Larry DuPuy, individually, and
        d/b/a Professional Home                                     Inspection and RadonTesting,  
Andrew S. Nason  
Pepper, Nason & Hayes  
Charleston, West Virginia  
Attorney for Appellee  

Molton, Allen &Williams Mortgage Corp. The Opinion of the Court was delivered PER CURIAM. SYLLABUS BY THE COURT
1. "'A complaint that could be construed as being either in tort or on contract will be presumed to be on contract
whenever the action would be barred by the statute of limitation if construed as being in tort.' Syl. pt. 1, Cochran v. Appalachian Power Co., 162 W. Va. 86, 246 S.E.2d 624 (1978)." Syllabus point 4, Smith v. Stacy, 198 W. Va. 498, 482 S.E.2d 115 (1996).
2.
"In tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury." Syllabus point 4, Gaither v. City Hospital, Inc., 199 W. Va. 706, 487 S.E.2d 901 (1997).

3.
"Where a cause of action is based on tort ..., the statute of limitations does not begin to run until the injured person knows, or by the exercise of reasonable diligence should know, of the nature of his injury, and determining that point in time is a question of fact to be answered by the jury." Syllabus point 3, Stemple v. Dobson, 184 W. Va. 317, 400 S.E.2d 561 (1990).


Per Curiam:
    John Casto and Connie Casto, appellants/plaintiffs (hereinafter referred to as "The Castos"), appeal the summary judgment ruling by the Circuit Court of Kanawha County in favor of Larry Dupuy, d/b/a Professional Home Inspection and Radon Testing,See footnote 1 1 (hereinafter referred to as "Mr. Dupuy"), and Molton, Allen & Williams Mortgage Corporation (hereinafter referred to as "M. A. & W."), appellees/defendants. The issue in this appeal is whether the circuit court correctly ruled that the Castos' claim sounded only in tort and applied a two-year statute of limitations to the Castos' action.See footnote 2 2 Based upon a review of the parties' arguments and the record below, we conclude that the circuit court erred in granting summary judgment.
I.
FACTUAL AND PROCEDURAL HISTORY
    In June of 1994, the Castos contacted M. A. & W. for the purpose of obtaining a loan to buy their first home. The Castos contend that M. A. & W. informed them that the home would have to be inspected to determine whether it was structurally sound.See footnote 3 3 It is further alleged by the Castos that M. A. & W. contracted with Mr. Dupuy to perform the home inspection.
    Mr. Dupuy inspected the home on June 24, 1994, and forwarded the inspection report to M. A. & W. on or about June 29, 1994. It appears that Mr. Dupuy's report concluded that, notwithstanding some cracks in the walls which required repair, the home was structurally sound. The Castos contend that they were not provided a copy of Mr. Dupuy's report at the time it was generated.See footnote 4 4 The Castos' loan was subsequently approved by M. A. & W.,See footnote 5 5 and in August of 1994, the Castos purchased the home.
    Several months after the Castos purchased the home they observed new cracks forming, in addition to observing the worsening of the old cracks.See footnote 6 6 At some point in October, 1994, the Castos had their friend and contractor, Ray Martin, look at the cracks in the home. Mr. Martin opined that the home should not have passed inspection because of the cracks. In June of 1995, the Castos secured the services of a certified structural inspector, John Knight. The Castos contend that Mr. Knight's inspection reported that the cracks were due to foundational defects and opined that the home should not have passed inspection.
    On November 19, 1996, the Castos filed the instant action alleging various theories of liability against Mr. Dupuy and M. A. & W. After a period of discovery, Mr. Dupuy and M. A. & W. moved for summary judgment.See footnote 7 7 The trial court ruled that the Castos' complaint sounded in tort and that the two-year statute of limitations had run.
Accordingly, the circuit court granted summary judgment to Mr. Dupuy and M. A. & W.See footnote 8 8 The Castos subsequently filed a motion to reconsider. The circuit court denied the motion. This appeal followed.

II.
STANDARD OF REVIEW

    Our review of summary judgment is de novo. Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). In reviewing summary judgment, this Court will apply the same test that the circuit court should have used initially and must determine whether "it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963). In this case we are primarily asked to review the circuit court's determination that the Castos' case sounded solely in tort and was therefore barred by the two-year statute of limitations.

III.
DISCUSSION
A. Contract Claim

    The Castos contend that their complaint sounded in both contract and tort. The circuit court found "that this lawsuit is one based in tort, not based on a contract between the plaintiffs and any of the defendants." Our case law is clear in holding that "'[a] complaint that could be construed as being either in tort or on contract will be presumed to be on contract whenever the action would be barred by the statute of limitation if construed as being in tort.' Syl. pt. 1, Cochran v. Appalachian Power Co., 162 W. Va. 86, 246 S.E.2d 624 (1978)." Syl. pt. 4, Smith v. Stacy, 198 W. Va. 498, 482 S.E.2d 115 (1996).
    A fair reading of the complaint in this case indicates that it sounds in both contract and tort. While the complaint does not provide a model contract claim, it is clear that a contract theory is alleged against M. A. & W.,See footnote 9 9 as well as against Mr. Dupuy. See footnote 10 10
    As to the contract theory against M. A. & W., the Castos acknowledge that a written agreement does not exist. Instead, the Castos assert through deposition testimony that an oral agreement was made wherein M. A. & W. agreed to obtain a structural inspection of the house before it approved the Castos' loan. Under our law, an obligation "which is not in writing is based on an implied contract and the statute of limitations applicable thereto is five years." Syl., in part, Sansom v. Sansom, 148 W. Va. 603, 137 S.E.2d 1 (1964). See W. Va. Code

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