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Lakemont Ridge Homeowners Association v. Lakemont Ridge Limited Partnership1/3/2005
Because the required prelitigation notice was not given before commencement of this construction defect claim, we hold that this action must be dismissed without prejudice.
In 2002, the Legislature enacted chapter 64.50 RCW to require various steps to be undertaken prior to the filing of a lawsuit based on a claim of construction defects in the construction or substantial remodel of a residence. The procedures are triggered by the service of a written notice of claim upon the construction professional against whom the claim is made. The process that follows such notice is designed to encourage resolution of the claim before the expense and delay of litigation is incurred. The chapter does not apply to tort claims for personal injury or death.
RCW 64.50.020(1) requires a claimant to serve written notice of claim no later than 45 days before filing an action. 'Claimant' is defined to include a homeowner or association, and includes a subsequent purchaser of a residence from any homeowner. 'Residence' is broadly defined to include everything from a single-family house to a unit in a multifamily structure. If a claimant fails to give the required notice, the action is subject to dismissal without prejudice, and may not be recommenced until the notice requirement has been met.
The Lakemont Ridge Homeowners Association commenced this suit without giving prior written notice to defendant construction professionals, claiming damages from construction defects. Defendants moved to dismiss because prelitigation notice was not given, but the trial court denied the motion based on another section of chapter 64.50 RCW. RCW 64.50.050(1) states that construction professionals shall provide notice to homeowners 'upon entering into a contract for sale, construction, or substantial remodel of a residence' of the professional's right to offer to cure construction defects prior to any litigation. RCW 64.50.050(3) states: This chapter shall not preclude or bar any action if notice is not given to the homeowner as required by this section.
The construction project at issue was begun and completed several years before passage of chapter 64.50 RCW, so the notice described in RCW 64.50.050 was not given. The trial court concluded that the chapter therefore did not apply, and declined to dismiss the suit. Defendant construction professionals appeal.
The interpretation of a statute is a question of law, which we review de novo.
While interpreting a statute, 'the primary objective of the court is to ascertain and carry out the intent and purpose of the legislature in creating it.' To determine legislative intent, we first look to the language of the statute. If a statute is plain and unambiguous, we derive its meaning from the language of the statute itself. 'A statute is ambiguous if it can reasonably be interpreted in two or more ways, but it is not ambiguous simply because different interpretations are conceivable.' We are not ''obliged to discern any ambiguity by imagining a variety of alternative interpretations.''
The Association suggests that the interplay between the two notice provisions results in two classes of homeowners: those who contracted for the purchase, construction or remodel of their residences before the effective date of chapter 64.50 RCW, and those who do so after that date. The latter are required to give the prelitigation notice, and the former are not.
There are several flaws in the Association's argument. First, chapter 64.50 RCW requires that '{i}n every construction defect action brought against a construction professional . . .' the claimant shall give at least 45 days notice before commencing a law
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