Construction suit improperly dismissed, appeals court rules

An appellate court ruled Tuesday that a trial judge improperly dismissed a lawsuit alleging that Spokane contractor Harley C. Douglass Inc. built a grossly defective home.

The Spokane division of the state Court of Appeals said Spokane County Superior Court Judge Jerome Leveque should not have thrown out James Burbo’s claim that Douglass’ company violated the state Consumer Protection Act or an “implied warranty.”

There were too many disputed facts for the summary judgment motion Leveque granted Douglass last February, a three-judge appellate panel ruled. Judges may grant summary judgments only when the facts clearly justify only one legal conclusion.

Leveque’s ruling was based on issues pertaining to contractual arrangements and the adequacy of evidence that Douglass concealed defects. It didn’t get to the validity of Burbo’s claims about faulty construction.

“Basically, everything that Mr. Burbo alleges, my client denies,” said Douglass’ attorney, Steve Jolley.

He noted that the Court of Appeals ruling cited Burbo’s version of the facts, not Douglass’ version. Court rules required an analysis in the light most favorable to Burbo because Douglass made the motion for summary judgment.

Burbo’s attorney, Michelle Wolkey, said only that she was pleased with the appellate ruling.

Burbo said in his lawsuit that, a month after he bought a new home in June 2001 for $134,000, it developed a crack in the foundation big enough to pass daylight. Douglass caulked the surfaces of the crack above the ground level, but didn’t fill the middle of the crack, Burbo claimed.

By November that year, the concrete driveway also cracked, and Douglass refused to fix that, according to Burbo.

Then the roof began to leak in December, Burbo alleged. He said water entered the living room at the fireplace, damaging walls, carpet, flooring and personal property.

Douglass performed what Burbo considered a temporary repair of the roof and called it permanent, according to Burbo’s lawsuit.

He said other problems that winter were that snow came in through a defective seal around a bathroom skylight, and the front door didn’t fit properly.

According to experts Burbo hired, the code-required waterproofing layer of “felt” under the shingles was either too thin, improperly installed or not there at all.

The experts said other building code violations included a structural column that wasn’t seated on its footing, according to Burbo’s complaint.

The Court of Appeals noted that Douglass hired contractors to make some repairs and had his own workers handle other problems. Burbo wasn’t satisfied with the work, and decided to sue instead of continuing to negotiate with Douglass.