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McMickle v. Lawson11/22/2005
Having obtained findings under CR 54(b), plaintiffs Willard and Geraldine McMickle appeal an order that summarily dismissed their contract claims based on the lack of any contract and their tort claims for property damage based on the 'economic loss rule.' The order did not dismiss their tort claims for personal injuries, and those claims are not before us at this time. The only respondents in this appeal are John Lawson and Lawson Surveying and Engineering (LSE). We affirm in part and reverse in part.
In 1994, Lawson and Lang Brothers Enterprises, Inc., were partners in a partnership called LLEADCO. LSE, Care Construction, Inc., and Lang Brothers Enterprises were all Washington corporations. Don and Carol Lang were shareholders in both Care and Lang Brothers Enterprises.
LLEADCO owned a parcel of land in Washougal, Washington. It developed the parcel by subdividing it into lots, grading, installing utilities, and otherwise readying it for the construction of homes. Lawson was the development's registered engineer, and LSE provided engineering design services.
On October 18, 1994, LLEADCO sold one of the developed lots to Care Construction. On October 21, 1994, Care sold the lot to the McMickles. At that time or later, Care apparently contracted to build the McMickles a home on the lot. The McMickles moved into the home on Thanksgiving Day of 1996.
Soon after moving in, the McMickles experienced recurrent respiratory illness, including pneumonia. When their son Lee came to visit, he too experienced respiratory illness. They eventually discovered that water up to five inches deep had accumulated in the home's crawl space and would not drain. They also discovered mold in the home and the crawlspace below. Having heard that high mold concentrations can adversely affect human health, they hired an environmental consultant, Healthy Habitats Northwest (HHN), to inspect the home. HHN found penicillium/aspergillus mold spores, which 'have been associated with new onset asthma, allergic inflammation of the lungs and other allergic symptoms.' HHN recommended that the McMickles move out, which they did.
On October 20, 2000, the McMickles sued Lawson, LSE, Care, Don Lang, Carol Lang, and, later, Lang Brothers Enterprises. The McMickles alleged negligence, breach of contract, and rescission.
On April 25, 2003, Lawson and LSE moved for summary judgment on claims other than those for personal injury . They argued that the lack of any contract between them and the McMickles dictated dismissal of the McMickles' claims for breach of contract and rescission, and that the Seconomic loss rule' dictated dismissal of the McMickles' tort claims for property damage.
On January 2, 2004, the trial court granted the motion. It reasoned that the McMickles 'had no contract with' Lawson or LSE, and that their tort claims 'for damage to their residence and personal property are barred by the economic loss rule.' It left pending the McMickles' claims for personal injury . On April 29, 2004, it entered CR 54(b) findings and a partial but appealable judgment.
The McMickles do not contest the trial court's dismissal of their contract and rescission claims against Lawson and LSE. They state in their appellate reply brief that they 'have never objected to dismissal of these contract claims against the Lawson defendants.' Agreeing with this concession, we affirm the trial court's order insofar as it dismissed the McMickles' contract and rescission claims against Lawson and LSE.
Although the McMickles do not contest the trial court's dismissal of their contract and rescission claims against Lawson and LSE, they do contest the t
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