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Watkins v. Tankersley Construction6/29/2005
as follows:
Improvement. A valuable addition made to property (usually real estate ) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes. . . . [emphasis added]
Id. at *3. The appellate court noted that the excavation of borrow pit No. 6 was not only a part of a construction project but, as a drainage pond, borrow pit No. 6 was itself an improvement. The appellate court cited with approval Embree v. American Cont'l Corp., 684 P.2d 951 (Colo. Ct. App. 1984), wherein it was held that the grading of a lot was an "improvement to real property." Id. at *4. The appellate court reasoned, " t is untenable to contend that dirt placed onto a highway right-of-way to construct and build up the roadbed for the highway would not be an improvement to real property." Id.
On appeal, the Walker defendants note that the instant case involves the removal of trees, the grading of land, and the replacement of fill dirt, all as part of the construction of a house. They argue that, under the reasoning in MLG&W, their actions constituted "an improvement to real property" within the meaning of Section 28-3-202. The Watkins contend, however, that this case is distinguishable from those cited by the trial court, because "filling" land is not the "construction of an improvement" for purposes of the statute. They differentiate the situation in MLG&W because, in MLG&W, the land was turned into something useful by the addition of the drainage system. It did not involve "merely pushing dirt around or removal of trees." The Watkins assert that the plain language of Section 28-3-202 contemplates the addition of an actual structure to the property. Because the instant case did not involve such an addition, they argue, the grading work performed is not governed the time limitation in Section 28-3-202.
As the Watkins note, MLG&W is distinguishable from the instant case in that the dredging work performed by the subcontractor involved not only the dredging of land, but also the building up of the roadbed and, as a result, the construction of a drainage pool. The court in that case, however, did not base its conclusion solely on the fact that the dredging work resulted in an addition to the land. Rather, the MLG&W court explained that the subcontractor's work adapted the land for the purpose of constructing the highway. Indeed, the definition of "improvement" adopted by the court provides that an "improvement" can be an addition or an amelioration in the condition of the land "intended to enhance its . . . utility or to adapt it for new or further purposes." MLG&W, 1986 WL 11588, at *3. In this case, it is undisputed that the removing of trees and the grading of the lot in question was intended to enhance the utility of the property, or to adapt it so that it would be a suitable site for the building of a house. The grading of the land performed by the Walker defendants was necessary to ready the land for construction. We agree with the reasoning in Embree, cited in MLG&W and decided on similar facts, where the Colorado court noted that "grading is essential and integral to the construction and completion of a house and is, therefore, part of the improvements to the real property." Embree, 684 P.2d at 952. Thus, we must affirm the trial court's finding that the removal of trees, grading, and fill work performed by the Walker defendants constituted an improvement to the real property.
Clearly, application of the four-year statute of repose in this case results in a disquieting outcome, since the damages alleged are
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