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Brude v. Breen

Supreme Court of South Dakota

August 2, 2017

SUZANNE BRUDE, Plaintiff and Appellant,
v.
SHANE BREEN d/b/a YELLOW JACKET IRRIGATION AND LANDSCAPING, Defendant, Third-Party Plaintiff, and Appellee,
v.
GREGORY AND ELIZABETH JAMISON, Third-Party Defendants.

          ARGUED MAY 30, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA HONORABLE JOHN R. PEKAS Judge

          RONALD A. PARSONS, JR. STEVEN M. JOHNSON KIMBERLY J. LANHAM of Johnson Janklow Abdallah Reiter & Parsons LLP Sioux Falls, South Dakota Attorneys for appellant.

          MELANIE L. CARPENTER JORDAN J. FEIST of Woods, Fuller, Shultz and Smith, PC Sioux Falls, South Dakota Attorneys for appellee.

          SEVERSON, Justice

         [¶1.] Suzanne Brude brought suit against Shane Breen, doing business as Yellow Jacket Irrigation and Landscaping (Yellow Jacket), for negligence in constructing a retaining wall from which Brude suffered an injury. Yellow Jacket moved for summary judgment, asserting that the claim was barred by the statute of repose. The circuit court granted summary judgment in favor of Yellow Jacket. Brude appeals, asserting that the court erred because the ten-year limitation in the statute of repose had not expired. We reverse and remand.

         Background

         [¶2.] In 2005, Yellow Jacket Irrigation and Landscaping contracted for and completed a landscaping project at the residence of Greg and Elizabeth Jamison. At issue in this case is landscaping that Yellow Jacket originally completed in September 2005. The area of landscaping at issue includes a patio with retaining walls on its sides and a fire pit above a section of the retaining wall. The retaining walls were repaired in 2007. At that time, Yellow Jacket fixed some stone pavers that had settled and shifted. The Jamisons and Breen have different recollections of the next time that Yellow Jacket worked on the retaining wall; it was either 2011 or 2013. The Jamisons asked Yellow Jacket to fix their patio area because some of the landscaping stones settled and leaned. Greg Jamison testified in his deposition that because the fix was fairly extensive and would require the retaining walls to be torn down and rebuilt, the Jamisons asked Yellow Jacket to make the fire pit area a little larger at the same time.

         [¶3.] Suzanne Brude was at the Jamison residence on October 7, 2014. In order to retrieve some branches from the fire pit area, she stepped onto the portion of the retaining wall in front of the Jamison's fire pit. One of the capstones she stepped on gave way, and she fell onto the patio below. She suffered an injury that required surgery the next day. On November 6, 2015, Brude commenced this action against Shane Breen, the sole proprietor operating Yellow Jacket Irrigation and Landscaping. Yellow Jacket filed a third-party complaint against the Jamisons, contending that the Jamisons were responsible for any damages awarded to Brude. The Jamisons have since settled this matter and take no position in this appeal.

         [¶4.] On July 29, 2016, Yellow Jacket moved for summary judgment asserting that the statutory time period to bring a claim had expired because the retaining wall and fire pit had been substantially completed more than ten years prior to the commencement of this action. See SDCL 15-2A-3. After submissions by the parties and a hearing on the motion, the circuit court granted summary judgment for Yellow Jacket. Brude appeals raising one issue for our review. She asserts that the changes to the landscaping that occurred in either 2011 or 2013 constituted "an improvement to real property" under SDCL 15-2A-3 and therefore restarted the ten-year period to bring a claim. Thus, she claims that the court erred when it granted summary judgment.

         Standard of Review

         [¶5.] "In reviewing a grant or denial of summary judgment we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and established entitlement to judgment on the merits as a matter of law." Clark Cty. v. Sioux Equip. Corp., 2008 S.D. 60, ¶ 8, 753 N.W.2d 406, 409 (quoting Behrens v. Wedmore, 2005 S.D. 79, ¶ 18, 698 N.W.2d 555, 565). "Those resisting summary judgment must show that they will be able to place sufficient evidence in the record at trial to support findings on all the elements on which they have the burden of proof." Id. (quoting Bordeaux v. Shannon Cty. Sch., 2005 S.D. 117, ¶ 14, 707 N.W.2d 123, 127). We must determine the applicability of the statute of repose to Yellow Jacket's latest work on the retaining wall. "Because the application of a legal test to the historical facts of this case requires us to consider legal concepts and 'exercise judgment about the values that animate legal principles, ' we review the . . . determination de novo." Id. ¶ 10, 753 N.W.2d at 410 (quoting In re Dorsey & Whitney Tr. Co., 2001 S.D. 35, ¶ 6, 623 N.W.2d 468, 471).

         Analysis

         [¶6.] A statute of repose is an affirmative defense, and Yellow Jacket had the initial burden of proving entitlement to it. See id. ΒΆ 17, 753 N.W.2d at 412. "[W]here a defendant, by motion for summary judgment, asserts this type of affirmative defense that bars an action 'and presumptively establishes the defense by showing the case was instituted beyond the statutory period, the burden then shifts to the plaintiff to establish the existence of material facts in avoidance of the ...


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