Opinion
No. 64256-1-I.
Filed: October 25, 2010. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-2-07031-0, George Appel, J., entered August 6, 2009.
Affirmed by unpublished opinion per Lau, J., concurred in by Ellington and Spearman, JJ.
After homes in the Bluegrass Meadows development experienced water intrusion problems, developer and general contractor Harbour Homes, Inc., filed suit against the subcontractors, including Anthony's Homes, Inc., for breach of contract and breach of the duty to indemnify and defend. On Anthony's summary judgment motion to dismiss, the trial court dismissed Harbour's claims as time barred under the three year statute of limitations applicable to oral contracts. Because the subcontractor agreement constitutes a partly oral agreement, the trial court properly applied the three year statute of limitations to bar Harbour's claims against Anthony's. We affirm the summary judgment dismissal of Harbour's claims.
FACTS
Harbour was the developer and general contractor for a 101 home development in Mill Creek known as "Bluegrass Meadows." It used specialty contractors to perform portions of the work. Construction took place between 2000 and 2003.
Harbour hired Anthony's and Bickley Construction, Inc., to perform framing work on the homes. Anthony's had already completed work on 11 homes at Bluegrass when it signed a subcontract agreement with Harbour on March 25, 2002. Anthony's then completed work on eight additional homes. The final framing inspection for the work Anthony's completed occurred on August, 22, 2002.
Before oral argument, Bickley and Harbour stipulated to dismiss Bickley from this appeal.
Lot numbers 22, 27, 29, 34, 43, 48, 51, and 66. While the parties dispute when Anthony's completed work on lot 62, this fact is immaterial to our decision.
The subcontract agreement provides in part,
This Subcontract is between Geonerco, Inc. dba Harbour Homes ("Harbour") and the Subcontractor named above. This Subcontract Agreement shall consist of this Agreement and an attached Bid info Sheet. This Agreement shall control if there are any conflicts between this Agreement and the Bid Info Sheet.
1. Subcontractor Responsibilities:
Plans will be provided to the Subcontractor for review to assure they conform to local requirements. Local requirements or plan omissions should immediately be brought to the Site Superintendent's attention. Subcontractor agrees to complete their portion of the work per the plans supplied, and in accordance with all building codes, (including but not limited to UBC, IRC, UMC, UPC, CABO, and NEC) and City, County, State and Harbour requirements and specifications. Subcontractor's bid is to be inclusive of all work to be performed including all applicable materials, labor, tools and equipment required to complete its portion of the work. . . . Subcontractor verifies that he is familiar with and has reviewed all plans, specifications and items which are related to execution of their work. Subcontractor shall commence work immediately on the date specified by the Site Superintendent and shall continue to pursue the work to completion in a timely manner . . . All workmanship on any Harbour project shall be first class and represent the highest quality standards of the trade. . . .
Bill Schodorf testified that he was the site superintendent at Bluegrass.
. . . .
3. Payment: Subcontractor will promptly submit invoices to Harbour when work has been completed in accordance with the plans. . . .
. . . .
13. Entire Agreement/Additional Work: This Subcontract Agreement shall be applicable at any Harbour jobsite and shall consist of this Subcontract Agreement and a trade specific bid info sheet. The trade specific bid info sheet shall contain all applicable pricing for work to be completed. . . .
On July 12, 2007, 37 Bluegrass Meadows homeowners filed a lawsuit against Harbour, alleging construction defects and Consumer Protection Act, chapter 19.86 RCW, (CPA) violations. Harbour and the homeowners eventually arbitrated these claims in late 2008 or early 2009. The arbitrator awarded between one and two million dollars in favor of the homeowners.
This number included both original homeowners and subsequent purchasers. The trial court dismissed the subsequent purchasers on summary judgment. On appeal, we held that the subsequent purchasers could assert CPA claims, but upheld the trial court's decision as to all other claims. Carlile v. Harbour Homes, Inc., 147 Wn. App. 193, 194 P.3d 280 (2008).
The record does not disclose the exact amount.
Harbour then sued its subcontractors, including Anthony's and Bickley on August 24, 2007. The complaint alleged claims for breach of contract, indemnity, and duty to defend. Harbor amended its complaint on November 15. Specifically, the complaint alleges,
The owners of the residences have alleged construction defects which, if true, are a result of Defendants' breach of their contracts and breach of their warranties. Any liability which Harbour Homes may have to the owners of the residences is the direct and proximate result of the alleged breaches by Defendants.
Harbour claimed that Anthony's failed to install a weather resistive barrier or "building paper" behind the T1-11 siding and failed to install metal head flashing. But neither complaint alleges that the homes contained latent defects.
The homeowners' complaint alleged failure to install or properly install "in accordance with code requirements" weather resistive barriers and flashing, siding material and trim, windows, skylights, and doors.
Anthony's joined in Bickley's June 4, 2009 summary judgment motion, which argued (1) the three year statute of limitations governing oral contracts barred Harbour's claims because the subcontract agreement was partly oral, (2) Harbour failed to establish breach, (3) the three year statute of limitations barred claims related to work performed before the parties signed the subcontract agreement, and (4) the statute of repose bars Harbour's indemnity claim. Harbour opposed the motion, arguing (1) the discovery rule delayed the accrual of its claims until 2007, (2) the six year statute of limitations for written contracts applied to its claims, and (3) on its breach of contract and duty to defend claims, material fact issues remain.
Harbour's opposition relied on consulting expert Colin Murphy's declaration to support its breach of contract claim. Bickley moved to strike the declaration on the ground of judicial estoppel since Harbour had previously asserted that Murphy was a nontestifying consulting expert whose opinions were protected by the work-product doctrine. The court granted the motion on August 6, 2009. Harbour does not assign error to that decision.
On August 6, 2009, the trial court granted summary judgment in Bickley and Anthony's favor and dismissed all claims against them. And it denied Harbour's subsequent reconsideration motion.
Harbour and defendant America's First Roofing Builders, Inc., stipulated below to dismiss America's on the same basis as Bickley and Anthony's "[b]ecause the Court's Orders as related to Bickley and Anthony's are the law of the case. . . ." The parties later stipulated to dismiss America's as a party to the appeal.
At oral argument, Harbour clarified that claims relating to the 11 homes completed prior to March 25 are timely because the discovery rule delayed accrual until 2007. As to the claims relating to the eight homes completed after March 25, Harbour argues they are timely both because the discovery rule delayed accrual and because they are subject to the six year statute of limitations. Harbour's appellate brief on this point is ambiguous.
ANALYSIS
Standard of Review
We review a summary judgment order de novo, engaging in the same inquiry as the trial court. Simpson Tacoma Kraft Co. v. Dep't of Ecology, 119 Wn.2d 640, 646, 835 P.2d 1030 (1992). Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Huff v. Budbill, 141 Wn.2d 1, 7, 1 P.3d 1138 (2000). We construe facts and reasonable inferences from those facts in the light most favorable to the nonmoving party. Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 795, 64 P.3d 22 (2003). But the nonmoving party may not rely on mere allegations, denials, opinions, or conclusory statements, but must set forth specific facts to show there is a genuine issue for trial. Int'l Ultimate, Inc. v. St. Paul Fire Marine Ins. Co., 122 Wn. App. 736, 744, 87 P.3d 774 (2004).
Applicability of the Discovery Rule
Harbour relies on the discovery rule to argue that its action did not accrue and the statute of limitations did not begin to run until it discovered the alleged construction defects in 2007. Anthony's responds that Harbour's failure to plead latent defects in its complaint precludes reliance on the discovery rule.
"In addressing whether a statute of limitations has run on an action arising out of construction or repair of an improvement on real property, both the relevant statute of limitations and the statute of repose set out in RCW 4.16.310 must be considered." 1000 Virginia Ltd. P'ship v. Vertecs Corp., 158 Wn.2d 566, 574, 146 P.3d 423 (2006) (footnote omitted). "A statute of limitation bars plaintiff from bringing an already accrued claim after a specified period of time. . . . A statute of repose terminates a right of action after a specific time, even if the injury has not yet occurred." Rice v. Dow Chem. Co., 124 Wn.2d 205, 211-12, 875 P.2d 1213 (1994). RCW 4.16.310 is a statute of repose that bars "[a]ny cause of action which has not accrued within six years after . . . substantial completion of construction, or within six years after . . . termination of services, whichever is later." Cambridge Townhomes, LLC v. Pac. Star Roofing, Inc., 166 Wn.2d 475, 485, 209 P.3d 863 (2009).
"RCW 4.16.310 requires a 2-step analysis for computing the accrual of a cause of action arising from the construction, alteration, or repair of any improvement to real property. First, the cause of action must accrue within 6 years of substantial completion of the improvement; and second, a party then must file suit within the applicable statute of limitation, depending on the type of action."
1000 Virginia, 158 Wn.2d at 575 (quoting Del Guzzi Constr. Co. v. Global Nw., Ltd., 105 Wn.2d 878, 883, 719 P.2d 120 (1986)).
Where latent construction defects are alleged, the discovery rule may delay the accrual of a breach of contract claim until "the plaintiff discovers, or in the reasonable exercise of diligence should discover, the elements of the cause of action." 1000 Virginia, 158 Wn.2d at 575, 580. An action based on a written contract must be filed within six years of its accrual under RCW 4.16.040(1), whereas an action based on an oral contract must be filed within three years. RCW 4.16.080(3). Generally, "a cause of action accrues when the party has the right to apply to a court for relief." 1000 Virginia, 158 Wn.2d at 575. Where a subcontractor completes work on a project before substantial completion, claims against that subcontractor accrue as of the completion date. See Harmony at Madrona Park Owners Ass'n v. Madison Harmony Dev., Inc., 143 Wn. App. 345, 354, 177 P.3d 755 (2008) (statute of limitations ran from date subcontractor stopped work) (citing 16 David K. DeWolf Keller W. Allen, Washington Practice: Tort Law and Practice § 9.13, at 289 (3d ed. 2006) ("A claim that accrues before substantial completion of the improvement starts the running of the statute of limitations.").
In 2003, the legislature enacted RCW 4.16.326(1)(g), "an affirmative defense precluding application of a discovery rule for claims of breach of written construction contracts." 1000 Virginia, 158 Wn.2d at 582. That section provides,
To the extent that a cause of action does not accrue within the statute of repose pursuant to RCW 4.16.310 or that an actionable cause as set forth in RCW 4.16.300 is not filed within the applicable statute of limitations. In contract actions the applicable contract statute of limitations expires, regardless of discovery, six years after substantial completion of construction, or during the period within six years after the termination of the services enumerated in RCW 4.16.300, whichever is later.
But the discovery rule will still apply if a defendant fails to plead RCW 4.16.326(1)(g) as an affirmative defense. 1000 Virginia, 158 Wn.2d at 582-83. And in the case of oral contracts, "the discovery rule may apply because the statute of limitations for an oral contract is three years. RCW 4.16.080(3). A latent defect could be discovered more than three years but less than six years after substantial completion." 1000 Virginia, 158 Wn.2d at 582-83.
Anthony's argues that because Harbour failed to plead latent defects in its complaint, the discovery rule is inapplicable and does not delay the accrual of its breach of contract claim. In Harmony, Ledcor sought to rely on the discovery rule despite the fact that it had failed to plead latent defects. Harmony, 143 Wn. App. at 357. Because RCW 4.16.326(1)(g) provides an affirmative defense to the discovery rule, we reasoned, "To hold that Ledcor could rely upon the discovery rule in this case effectively would be to allow Ledcor to eliminate RCW 4.16.326(1)(g) as one of Serock's available affirmative defenses by failing to properly allege latent defects in its initial pleadings." Harmony, 143 Wn. App. at 357. Accordingly, we held that Ledcor's failure to allege latent defects precluded its reliance on the discovery rule. Harmony, 143 Wn. App. at 357; see also 1000 Virginia, 158 Wn.2d at 580 (discovery rule applies "where latent defects are alleged"). Because Harbour failed to plead latent defects in its complaint or amended complaint, it is precluded from relying on the discovery rule.
Harbour responds that "any arguments . . . that the alleged defects were latent have been waived at the appellate level since" Anthony's failed to raise them in its motion for summary judgment. Reply Br. of Appellant at 10. This argument misconstrues the discovery rule pleading requirements. The party relying on the discovery rule must affirmatively plead latent defects — not the party asserting a statute of limitations defense. See Harmony, 143 Wn. App. at 357. Indeed, without timely notice of Harbour's discovery rule claim, Anthony's can hardly be expected to raise the pleading deficiency in its summary judgment motion. And while Anthony's did not argue failure to plead latent defects in its reply to Harbour's opposition, it did argue that the discovery rule did not apply. The issue was properly preserved for review.
But even if Harbour had timely pleaded latent defects, no material issues of fact exist regarding the discovery rule's application. Where a plaintiff invokes the discovery rule to counter a statute of limitations defense, the plaintiff bears the burden to show that facts constituting the cause of action were not discovered or could not have been discovered by due diligence earlier. G.W. Constr. Corp. v. Prof'l Serv., Indus., Inc., 70 Wn. App. 360, 367, 853 P.2d 484 (1993); accord Giraud v. Quincy Farm Chem., 102 Wn. App. 443, 449, 6 P.3d 104 (2000) ("To invoke the discovery rule, the plaintiff must show that he or she could not have discovered the relevant facts earlier."). A "`plaintiff is charged with what a reasonable inquiry would have discovered.'" 1000 Virginia, 158 Wn.2d at 581 (quoting Green v. A.P.C., 136 Wn.2d 87, 95, 960 P.2d 912 (1998)).
While the issue of whether a plaintiff should have been able to discover defects earlier presents factual questions, we may decide the applicability of the discovery rule as a matter of law where the facts are susceptible to only one reasonable interpretation. See Allen v. State, 118 Wn.2d 753, 760, 826 P.2d 200 (1992) (discovery rule inapplicable and summary judgment on statute of limitations granted in wrongful death action where reasonable minds could reach but one conclusion); 1000 Virginia, 158 Wn.2d at 581; see also Goodman v. Goodman, 128 Wn.2d 366, 373, 907 P.2d 290 (1995) ("Whether the statute of limitations bars a suit is a legal question, but the jury must decide the underlying factual questions unless the facts are susceptible of but one reasonable interpretation.") (emphasis added).
We conclude that Harbour has failed to satisfy its burden. Harbour repeatedly asserts, "The defects were discovered by Harbour Homes for the first time in early 2007" when it "received a complaint from a homeowner of water intrusion." Br. of Appellant at 3, 16. But Harbour submitted no evidence to establish that it could not have discovered the defects earlier in the exercise of due diligence. Even assuming as true that Harbour did not discover the defects until 2007, that fact alone does not support an inference that it could not have discovered the defects earlier. To defeat summary judgment, Harbour's "evidence must set forth specific, detailed, and disputed facts." Sanders v. Woods, 121 Wn. App. 593, 600, 89 P.3d 312 (2004). Argumentative assertions and unsupported conclusory allegations will not defeat summary judgment. Vacova Co. v. Farrell, 62 Wn. App. 386, 395, 814 P.2d 255 (1991). And as Anthony's contends, Harbour is a sophisticated real estate developer whose agents were on the construction site daily with ample opportunity to inspect and review construction. Absent specific evidence that it could not have discovered the defects earlier, Harbour's reliance on the discovery rule is unavailing. In sum, the discovery rule does not toll the accrual of Harbour's claims.
Statute of Limitations
The applicable statute of limitations begins to run from the date Anthony's stopped work on the Bluegrass project. Harmony, 143 Wn. App. at 354 (statute of limitations ran from date subcontractor stopped work). Because Anthony's stopped work on the Bluegrass project on August 22, 2002, the viability of Harbour's lawsuit depends on whether the three year or six year statute of limitations applies to its claims.
Harbour maintains that the six year statute of limitations applies because a valid written contract governed Anthony's work on the project. Anthony's responds that because the subcontractor agreement omits essential contract elements, the three year statute of limitations for oral contracts governs and Harbour's claims are therefore barred. Anthony's specifically argues that the contract lacks "scope of work" terms, "identification of project," "number and/or location of the houses to be framed," price, "time of performance," and the specific "building codes or trade standards [to] be followed." Br. of Resp't at 4.
In Washington, an enforceable agreement requires an offer, acceptance, and consideration. Yakima Cnty. Fire Prot. Dist. DONo. 12 (West Valley) v. City of Yakima, 122 Wn.2d 371, 389-90, 858 P.2d 245 (1993). An agreement can be entirely oral, entirely written, or partly oral and written. Lopez v. Reynoso, 129 Wn. App. 165, 171, 118 P.3d 398 (2005). There must be mutual assent to the essential terms. Jacob's Meadow Owners Ass'n v. Plateau 44 II, LLC, 139 Wn. App. 743, 765, 162 P.3d 1153 (2007). However, not every detail of an agreement is an essential term. McEachren v. Sherwood Roberts, Inc., 36 Wn. App. 576, 579, 675 P.2d 1266 (1984).
For purposes of the six year limitations under RCW 4.16.040(1), the writings must contain "all the essential elements of the contract, which include the subject matter, parties, terms and conditions, and price or consideration." Urban Dev., Inc. v. Evergreen Bldg. Prods., LLC, 114 Wn. App. 639, 650, 59 P.3d 112 (2002). "The shorter [three year] limitation period for oral contracts recognizes the undesirability of relying on parole evidence, which frequently tends to become less reliable with the passage of time." Browning v. Howerton, 92 Wn. App. 644, 649, 966 P.2d 367 (1998).
RCW 4.16.040(1) provides in part,
The following actions shall be commenced within six years:
(1) An action upon a contract in writing, or liability express or implied arising out of a written agreement.
Exparte writings are sufficient to establish a written contract if the writings contain all of the elements of a contract. Bogle Gates, PLLC v. Holly Mountain Res., 108 Wn. App. 557, 561, 32 P.3d 1002 (2001). "[W]hat is normally regarded as a necessary element of a written contract need not be expressly addressed if it is implicit in the writing, and the fact that the obligation is implicit in the writing does not cause the contract to be `partly oral' for statute of limitations purposes." Kloss v. Honeywell, Inc., 77 Wn. App. 294, 299, 890 P.3d 480 (1995). If a material element of a written contract must be proved by extrinsic evidence, the contract is partly oral and the three year statute of limitations applies. Bogle Gates, 108 Wn. App. at 560.
Harbour argues that the subcontract agreement contains all the essential elements necessary to establish a written contract for purposes of RCW 4.16.040(1) by indentifying the contracting parties, stating Anthony's trade as "framer," and "set[ting] forth numerous terms and conditions, including those which describe how the subcontractors were to perform their work." Br. of Appellant at 19. But the agreement lacks several essential elements necessary to a written contract. First, the agreement's subject matter omits the site location, project name, lot numbers, and the number of houses required to be framed by Anthony's. The agreement also fails to specify the nature and scope of Anthony's work. It describes Anthony's trade as "framer," but provides no detail about whether Anthony's is bound to frame the entire house or a portion, such as the sides. Nor does the agreement specify whether Anthony's scope of work encompassed framing the garages, as the project invoices indicate. Harbour must therefore rely on extrinsic evidence to establish that the agreement related to the Bluegrass project and the nature and scope of the work to be performed under the agreement.
Notably, the agreement provides no specification on what framing work Anthony's is bound to perform. Importantly, the agreement contains no express provision obligating Anthony's to install siding, weather resistive barriers behind the T1-11 siding, or flashing — the very core of Harbour's breach of contract claim against Anthony's. Indeed, Harbour's site superintendent Bill Schodorf conceded that "there isn't a scope" of work detailed in the agreement. And while the agreement provides, "Plans will be provided to the Subcontractor for review" and that "Subcontractor agrees to complete their portion of the work per the plans supplied," the plans are not in our record. While these plans may supply the essential terms, we will not engage in speculation.
Recognizing these deficiencies, Harbour claims that Anthony's "submitted bids and invoices to Harbour Homes for [its] work on the Project, which together constitute a written contract and bring Harbour Homes' claims within the six year statute of limitations." Br. of Appellant at 22. If a party relies on ex parte documents to establish a written contract under RCW 4.16.040(1), those documents must contain all the essential elements of a contract. See Urban Dev., 114 Wn. App. at 650. In Cahn v. Foster Marshall, Inc., 33 Wn. App. 838, 841, 658 P.2d 42 (1983), Cahn sued his broker for breach of contract, arguing that the broker had misrepresented that bonds it sold Cahn were guaranteed by New York State. Cahn argued that a wire transmission describing the bonds and a receipt for the bonds constituted a written contract and the action was thus subject to the six year statute of limitations. The court reasoned, "Since the receipt is merely the confirmation of a stock transaction, it does not constitute a contract. It lacks the essential term upon which plaintiff allegedly relied and bases his lawsuit, i.e., that the [Urban Development Corporation] bonds were guaranteed by the New York State Legislature." Cahn, 33 Wn. App. at 841. Subsequent courts have followed Cahn. See Browning v. Howerton, 92 Wn. App. 644, 649, 966 P.2d 367 (1998) (in action for reformation of purchase price in real estate contract based on mutual mistake, three year statute of limitations applied where total acreage and per acre price were not stated in written agreement, such that resort to extrinsic evidence was required to show error in calculating purchase price).
While Harbour argues that Anthony's bid constitutes a written contract, its argument and citations to the record refer only to Anthony's invoices and we therefore decline to consider whether the bid constitutes a written contract. See Bohn v. Cody, 119 Wn.2d 357, 368, 832 P.2d 71 (1992) (appellate court will not consider inadequately briefed argument); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (argument unsupported by citation to the record or authority will not be considered); RAP 10.3(a)(6). Regardless, the bid does not appear in our record. At oral argument to this court, Harbour conceded the bids no longer exist and the plans are not in our record.
The parties stipulated that the action was for breach of contract only. Cahn, 33 Wn. App. at 840.
The invoices here list quantities, rates, and total amounts for three types of work — "Frame house," "Frame Garage," and "Frame Pony Walls." But like the receipt in Cahn, the invoices "lack[] the essential terms upon which plaintiff . . . bases [its] lawsuit" — that Anthony's was required to install siding, weather resistive barriers behind the T1-11 siding, or flashing. Cahn, 33 Wn. App. at 841. And the invoices fall short because they contain no provisions related to the full scope of Anthony's promised services or the specifications and plans relevant to those services. Rather, Harbour must resort to parole evidence to establish that the term "Frame House" includes a duty to install weather resistive barriers and flashing.
Because neither the invoices nor the subcontractor agreement constitute a written contract for purposes of RCW 4.16.040(1), the three year statute of limitations for an oral agreement applies. RCW 4.16.080(3). And because Harbour stopped work on August 22, 2002, the statute of limitations for its breach of contract action expired no later than August 22, 2005, some two years before Harbour filed its initial complaint on August 24, 2007. Harbour also conceded at oral argument, and we agree, that claims related to homes completed before the March 25, 2002 subcontractor agreement are also time barred under the three year statute of limitations. The trial court properly dismissed Harbour's time-barred breach of contract claim.
Harbour appears to maintain that the limitations period should run from October 3, 2002, the date that the last certificate of occupancy was issued for a home Anthony's framed. Br. of Appellant at 7. But where a subcontractor completes work on a project before substantial completion, claims against that subcontractor accrue as of the date the subcontractor stopped work. See Harmony, 143 Wn. App. at 354. Regardless, any dispute on this point is immaterial as Harbour's action is time barred based on either accrual date.
Duty to Defend
Harbour next argues that the trial court erred in dismissing its contractual duty to defend claim. "The duty to defend is determined by the facts known at the time of the tender of defense." Knipschield v. C-J Recreation, Inc., 74 Wn. App. 212, 216, 872 P.2d 1102 (1994). "`[T]he facts at the time of the tender of defense must demonstrate that liability would eventually fall upon the indemnitor, thereby placing it under a duty to defend.'" George Sollitt Corp. v. Howard Chapman Plumbing Heating, Inc., 67 Wn. App. 468, 472, 836 P.2d 851 (1992) (alteration in original) (quoting Dixon v. Fiat-Roosevelt Motors, Inc., 8 Wn. App. 689, 693-94, 509 P.2d 86 (1973)).
Here, Harbour tendered its defense on August 24, 2007, in its complaint and first amended complaint. Harbour relies on "allegations asserted in the homeowner's complaint . . ." that it alleges "point directly to each of the Defendant's work." Br. of Appellant at 27. But neither Harbour's nor the homeowner's complaint shows a causal connection between Anthony's work and the defects. And Harbour's appellate brief similarly fails to cite to evidence in the record indicating that at the time it tendered the defense, liability would eventually fall on Anthony's. Although Anthony's appellate brief advanced a similar analysis, Harbour does not address these arguments in its reply brief. Finally, Anthony's argues and Harbour does not dispute that at the time of the tender of defense, "discovery was incomplete, disputes continued among the parties' respective representatives and experts regarding the nature and extent (or even existence of) the alleged defects to Bluegrass Meadows houses and whether there was any remediation needed of Anthony's work." Br. of Resp't at 30. Because at tender, there was no evidence that liability would fall on Anthony's, we conclude the trial court properly dismissed Harbour's duty to defend claim.
We affirm the trial court's summary judgment order dismissing Harbour's claims against Anthony's.