                 This opinion is subject to revision before final
                      publication in the Pacific Reporter

                                 2018 UT 28


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

 THE GABLES AND VILLAS AT RIVER OAKS HOMEOWNERS ASSOCIATION,
                            Appellee,
                                       v.
                    CASTLEWOOD BUILDERS, LLC,
                           Appellant.

                               No. 20161075
                            Filed June 29, 2018

                 On Appeal of Interlocutory Order

                        Third District, Salt Lake
                        The Honorable Su Chon
                            No. 100903697

                                 Attorneys:
A. Richard Vial, Michael J. Vial, Edward W. McBride, Salt Lake City,
                             for appellee
Heinz J. Mahler, Patrick C. Burt, Chelsey E. Phippen, Salt Lake City,
                            for appellant


 ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, and
                     JUSTICE PETERSEN joined.


   ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
   ¶1 A homeowners association sued the general contractor on a
construction project many years after filing suit against other
defendants. After several procedural twists and turns, the
homeowners association finally filed a viable amended complaint
that named the general contractor. But by that time the statute of
repose had run on six buildings in the project.
   ¶2 The general contractor moved for summary judgment,
asserting that the homeowners association’s claims were time-
                  GABLES v. CASTLEWOOD BUILDERS
                        Opinion of the Court


barred. The district court disagreed and denied the motion. The
general contractor then filed this interlocutory appeal.
    ¶3 We reverse. We hold that an action is commenced under our
law not by the filing of a motion for leave to amend but by the filing
of a complaint. And we conclude that the homeowners association’s
claims are time-barred because no viable complaint was filed within
the repose period and the complaint did not relate back to a timely
pleading.
                                   I
   ¶4 Castlewood Builders, LLC was the general contractor on the
River Oaks project, a development consisting of eleven buildings in
Sandy, Utah. The project’s developers were Castlewood River Oaks,
LLC; Castlewood Development, LLC; and Castlewood Development,
Inc. (collectively, the Developers). The six buildings at issue here
were completed in 2006 and 2007.
    ¶5 The HOA for the project, The Gables and Villas at River Oaks
Homeowners Association (the Association), later discovered alleged
construction defects with the completed buildings. So the
Association sued the Developers, asserting claims arising out of
defective construction and breach of fiduciary duty. The Developers
in turn filed a third-party suit against various subcontractors. At the
time, the Association and the subcontractors were unaware of
Castlewood Builders’ existence.
    ¶6 In March 2012, the Association and the subcontractors
realized that Castlewood Builders had acted as the general
contractor on the project. The Association was not in privity with
Castlewood Builders, however, so it asked the Developers to bring a
third-party suit against Castlewood (despite the fact that the
Developers had some relation to Castlewood1). The Developers
agreed. They filed a motion for leave to amend their third-party
complaint on May 2, 2012. The district court granted that motion on
December 13, 2012. Once the motion was granted, the Developers
assigned their claims against Castlewood Builders to the Association.


_____________________________________________________________
   1 Castlewood Builders and the Developers have a common
owner—a man named Jeff Duke. These entities were also
represented by the same counsel in this litigation.


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                          Opinion of the Court

The Association then filed an amended complaint on December 17,
2012, adding Castlewood Builders as a defendant.
   ¶7 On December 21, 2012, Castlewood Builders accepted service
of the Association’s amended complaint. But the court struck that
complaint because it was the Developers—not the Association—who
had obtained leave to amend. The Association then filed its own
motion for leave to amend on July 26, 2013. The court granted that
motion on March 18, 2014, and the Association filed a procedurally
proper amended complaint on May 13, 2014.
   ¶8 Castlewood Builders moved for summary judgment. It
asserted that the 2014 amended complaint had come after the six
year statutory period of repose had passed for six of the buildings in
the project. See UTAH CODE § 78B-2-225(3)(a) (requiring “[a]n action
by or against a provider based in contract or warranty . . . be
commenced within six years of the date of completion of the
improvement or abandonment of construction”).
   ¶9 The relevant timeframe is undisputed. All agree that the 2014
amended complaint was filed more than six years after the final
building was completed. But the Association opposed the summary
judgment motion, asserting that its 2014 amended complaint was not
time-barred because it related back to the date of its original, timely
complaint. See UTAH R. CIV. P. 15(c) (allowing amendments to relate
back to the date of an original pleading in certain circumstances).
    ¶10 The district court denied the Castlewood Builders motion
for summary judgment. It determined that Castlewood Builders and
the Developers were so closely related that the Developers’ motion
for leave to amend put Castlewood Builders on notice of the action
for purposes of rule 15(c) of the Utah Rules of Civil Procedure. And
it accordingly concluded that the 2014 amended complaint related
back to May 2, 2012, when that motion was filed.
    ¶11 Castlewood Builders filed a petition for interlocutory
appeal, which we granted. It contends that rule 15(c) does not apply
to statutes of repose, and that even if it did, it is not satisfied in this
case. It also raises the question of which filing is the operative one
for purposes of any relation back.2

_____________________________________________________________
   2 Castlewood Builders made another argument based in due
process. Because we reverse in favor of Castlewood Builders on
other grounds, we do not need to reach its due process argument.


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                  GABLES v. CASTLEWOOD BUILDERS
                         Opinion of the Court


    ¶12 The Association sidesteps these issues. At oral argument in
this court the Association conceded that its amended complaint does
not relate back under rule 15(c). Yet the Association still defends the
district court’s decision. It argues that the critical question is when
the action “commenced” against Castlewood Builders for the
purposes of the statute of repose. And it believes that the Developers
commenced that action with their motion for leave to amend.
    ¶13 Because the Association conceded the relation back issue,
we are left with the question of when the action commenced. We
address this question below, concluding that the Association
commenced its action when it filed its amended complaint on May
13, 2014—after the statute of repose had run on the six buildings at
issue here. And we hold that the Association’s claims are time-
barred on that basis.
                                   II
    ¶14 The statute of repose requires that the Association’s action
against Castlewood Builders “be commenced within six years of the
date of completion” of the construction project. UTAH CODE
§ 78B-2-225(3)(a). Construction on the buildings in question was
completed in July 2007 at the latest. That means that the
Association’s 2014 amended complaint came too late to save its
claims from the statutory time bar. And the Association’s claims can
be saved only if the action was commenced by an earlier filing.
   ¶15 The Association points to the Developers’ motion for leave
to amend, which was filed on May 2, 2012. It advances a series of
arguments in support of its view that the motion effectively
commenced its action against Castlewood Builders. First, the
Association argues that the Developers’ motion gave Castlewood
Builders notice of the action, such that Castlewood Builders was not
“entitled to any reasonable expectation that the slate ha[d] been
wiped clean” by the statute of repose. Nett v. Bellucci, 774 N.E.2d 130,
138 (Mass. 2002) (citation omitted) (internal quotation marks
omitted). Second, the Association cites precedent endorsing a
preference for the resolution of cases on the merits instead of on
“technical rules of pleading.” Lawler v. Univ. of Chi. Med. Ctr., 51
N.E.3d 1053, 1064 (Ill. App. Ct. 2016) (citation omitted). And finally,
the Association insists that injustice would result if motions for leave
to amend didn’t commence actions, because “the plaintiff has no
way of controlling or even predicting the time at which any
permission to amend will be granted, and thus no ability to control
the date on which the amended complaint itself may be filed.” Kane

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                         Opinion of the Court

Cty., Utah v. United States, 934 F. Supp. 2d 1344, 1363 (D. Utah 2013)
(quoting Nett, 774 N.E.2d at 136), rev’d in part on other grounds, Kane
Cty., Utah v. United States, 772 F.3d 1205 (10th Cir. 2014); see also
Mayes v. AT&T Info. Sys., Inc., 867 F.2d 1172, 1173 (8th Cir. 1989)
(“[W]here the petition for leave to amend the complaint has been
filed prior to the expiration of the statute of limitations . . . the
amended complaint is deemed filed within the limitations period.”).
    ¶16 None of these arguments are addressed to the key
interpretive question presented—of what it means to “commence”
an action under Utah Code section 78B-2-225(3)(a). This is a
procedural question. It is accordingly answered by reference to the
Utah Rules of Civil Procedure. And those rules foreclose the
Association’s arguments.
   ¶17 Rule 3 states that “[a] civil action is commenced (1) by filing a
complaint with the court, or (2) by service of a summons together
with a copy of the complaint.” UTAH R. CIV. P. 3(a) (emphasis
added). The rule makes no mention of motions for leave to amend a
complaint. And that is fatal to the Association’s position. A motion
for leave to amend a complaint and to add an additional defendant
does not count as “commencing” an action against that party under
our rules of civil procedure.
   ¶18 We are unmoved by the Association’s arguments to the
contrary. These arguments go to matters of policy. And the text of
our law trumps the Association’s policy concerns. The question
whether Castlewood Builders was on notice is irrelevant, as is the
question whether we have some general preference for deciding
cases on their merits. And we simply disagree with the assertion that
the rule as set out here leaves last-minute plaintiffs without the
ability to sue within the statute of repose. See Kane Cty., 934 F. Supp.
2d at 1363. It is true that a party can’t control when a motion for
leave to amend is granted. But the ability to file another lawsuit
within the statutory period is within the plaintiff’s control. In the
face of the looming time bar, the Association could have filed a new,
independent action after the Developers had assigned it their claims;
and that would have saved the Association from the statutory time
bar.
   ¶19 In the Kane County case the federal court took issue with that
solution. It said that a requirement of filing a parallel lawsuit “would
be a waste of ‘scarce judicial resources and impose pointless




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                  GABLES v. CASTLEWOOD BUILDERS
                         Opinion of the Court


litigation costs.’” Id. (citation omitted). We aren’t convinced. We
cannot overrule the plain language of our law in the name of
efficiency.3 And we therefore confirm that an action must be
commenced under the terms of rule 3 in order to satisfy the statute of
repose.
    ¶20 We reverse on this basis. To show that it commenced an
action within the requisite time frame the Association must point to
an actual complaint filed with the court—not just to the Developers’
motion for leave to amend. And the Association has failed to identify
any such timely complaint. The only viable complaint4 filed against
Castlewood Builders was the 2014 amended complaint, filed on May
13, 2014. So that is the date that the action commenced. And without

_____________________________________________________________
   3 Nor are we convinced that this is actually inefficient. Time bars
promote judicial economy by limiting the litigation of old claims
involving old evidence. See UTAH CODE § 78B-2-225(2) (noting the
“difficulties in defending against claims many years after completion
of an improvement,” which “constitute clear social and economic
evils”). So adherence to rule 3 may be the most efficient course on
balance.
   4  The Association did attempt to file one other complaint—in
2012, on the heels of the Developers’ motion for leave to amend. But
the district court struck that complaint on the ground that only the
Developers (not the Association) had secured leave to amend. And
the Association has not appealed that decision or preserved an
argument that the 2012 complaint should be treated as the pleading
that commenced this action for purposes of the statute of repose.
    The Association sought to advance this point at oral argument in
this court—in response to questions from the bench. It contended,
for the first time in this litigation, that the district court may have
erred in striking the 2012 complaint. We do not reach this issue,
however, because it was neither preserved in the district court nor
advanced in the briefs on appeal. See Kendall v. Olsen, 2017 UT 38,
¶ 13, __ P.3d __ (“[I]ssues . . . that were not presented in the opening
brief are considered waived and will not be considered.” (citations
omitted)); Hill v. Superior Prop. Mgmt. Servs., Inc., 2013 UT 60, ¶ 46,
321 P.3d 1054 (“Preservation requires affording the district court a
meaningful opportunity to rule on the ground that is advanced on
appeal . . . .”).


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                        Cite as: 2018 UT 28
                       Opinion of the Court

an argument that that filing related back to an earlier filing, the
Association’s claims are barred by the statute of repose.
                                III
    ¶21 The Association’s claims against Castlewood Builders as to
the six buildings at issue here are time-barred. We reverse the
district court and remand for further proceedings consistent with
this opinion.




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