Construction Law Insights

Hyde Park Free Will Baptist Church v. Skye-Brynn Enters., 2019 Va. Cir. LEXIS 163 (City of Norfolk Cir. Ct. May 24, 2019)

On May 14, 2015, Hyde Park Free Will Baptist Church (“Hyde Park”) contracted with Skye-Brynn Enterprises, Inc. (“Skye-Brynn”) for Skye-Brynn to install a liquid roof membrane system on top of the existing church roof to repair the leaking roof. Around October 2015, Skye-Brynn informed Hyde Park that the roof was completed and Hyde Park paid Skye-Brynn the remainder of the contract price. However, some of the roof’s existing leaks were worse than before and some new leaks developed. Hyde Park notified Skye-Brynn of the leaks shortly after its completion of the roof work and provided Skye-Brynn with the opportunity to correct the roof leaks.

In 2017, more than 14 months later, Hyde Park consulted another roofing contractor, who informed Hyde Park that the roofing system was improperly installed. Hyde Park then contacted the manufacturer, who informed Hyde Park in 2017 and 2018 that there was no manufacturing defect in the roofing system, that evidence revealed improper application of the system, and that the manufacturer’s warranty excluded roof leaks due to improper application of the roofing system. On October 1, 2018, Hyde Park filed a complaint against Skye-Brynn, which alleged, in part, fraud in violation of the Virginia Consumer Protection Act (“VCPA”). Skye-Brynn filed a plea in bar to Hyde Park’s VCPA claim, asserting that the claim was barred by the statute of limitation.

The Court granted Skye-Brynn’s plea in bar because it found that Hyde Park discovered, or reasonably should have discovered, that Skye-Brynn might have been responsible for the faulty roof repairs more than two years prior to filing its complaint and, therefore, Hyde Park’s VCPA claim was statutorily barred. The VCPA provides that an action must be commenced within 2 years after accrual. As a general rule, a VCPA cause of action accrues when the fraud, mistake, misrepresentation, deception, or undue influence is discovered or, by the exercise of due diligence, reasonably should have been discovered. Hyde Park admitted it knew the roof was not properly repaired shortly after completion of the work by Skye-Brynn in October of 2015 and shortly thereafter contacted Skye-Brynn to correct the work, which suggest that Hyde Park had reason to suspect that Skye-Brynn had not installed the roofing system in a workmanlike manner.

The manufacturer’s determination two years later is immaterial because a VCPA claim begins to run from when the plaintiff discovers the existence of a claim, not when the exact cause of injury is determined. Even if the statute of limitations on Hyde Park’s VCPA claim did not begin to run shortly after Skye-Brynn completed the roof work, the burden was on Hyde Park to show that it acted with due diligence and yet did not discover the fraud or mistake until within the statutory period of limitation immediately preceding the commencement of the action. Hyde Park did not meet its burden because it waited 14 months to contact another roofing contractor and even longer to contact the manufacturer despite knowing about the leaks shortly after Skye-Brynn claimed to have completed the roof.

PLDR Law Scott Kowalski 1  PLDR Law Mark Burgin 1

Thomas Wolf 002  Kenneth Stout 002  Jason Goldsmith 002


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