528 P.3d 531
Idaho2023Background:
- Dempseys contracted with BrunoBuilt to build a Boise foothills house (plans by Dempseys); Dempseys later conveyed the lot to BrunoBuilt as construction-loan security.
- Dempseys separately contracted in 2015 with Erstad Architects (principal Andrew Erstad; project manager Cheryl Pearse); Erstad’s agreement excluded site/geotechnical services.
- In February–April 2016 a pre-existing subdivision landslide reactivated, damaging the lot, severing utilities, and preventing the City from issuing a certificate of occupancy for the essentially completed house.
- BrunoBuilt sued various engineers in 2016 and amended its complaint in September 2018 to add the Erstad Defendants for professional negligence after additional damage was discovered in 2018.
- Erstad Defendants moved for summary judgment asserting statute-of-limitations (I.C. §5-219(4)), economic-loss rule, and no duty; the district court granted summary judgment (2019). BrunoBuilt’s 2021 motion to reconsider (raising evidence/arguments not previously timely presented) was denied as untimely; BrunoBuilt appealed.
- The Idaho Supreme Court affirmed summary judgment (statute of limitations bar), refused to consider the late evidence/arguments, and sanctioned BrunoBuilt’s counsel under I.A.R. 11.2 and awarded fees under I.C. §12-121 for lack of candor and frivolous appeal conduct.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BrunoBuilt’s negligence claim was time‑barred under I.C. §5-219(4) (accrual date) | Accrual did not occur until 2018 when additional structural damage to the residence became evident | Accrual occurred in 2016 when the landslide first damaged the lot, severed utilities, and prevented occupancy | Held: Time accrued in 2016; claim is barred by the two‑year professional‑malpractice statute |
| Whether §5-219(4)’s two‑year limitation applies to Erstad Architects and Pearse (licensure issue) | §5-219(4) does not apply to defendants who were not licensed to perform the services (so four‑year statute applies) | Erstad Architects is a professional entity rendering services through licensed architects; Pearse served under licensed architect’s supervision, so §5-219(4) applies | Held: §5-219(4) applies to the firm and to work attributable to the licensed architect; Rife distinction inapplicable here |
| Whether the Court may consider the new evidence/arguments raised in BrunoBuilt’s late motion to reconsider on appeal | Motion to reconsider presented new but dispositive facts/arguments and should be considered (and preserved for appeal) | New evidence/arguments were untimely, available earlier, and BrunoBuilt forfeited them by not timely presenting them below | Held: Forfeited—appellate review limited to the record and arguments before the district court at summary judgment; motion to reconsider properly denied |
| Whether sanctions/attorney fees are warranted for counsel’s appellate conduct (non‑disclosure/lack of candor) | Counsel contended arguments evolved and some issues were ‘‘subsumed’’ in prior briefing; oral‑argument waiver of some claims should mitigate | Counsel failed to disclose existence and denial of the motion to reconsider, used untimely evidence/arguments as if they were part of the summary‑judgment record, and made misleading statements | Held: Sanctions under I.A.R. 11.2 granted against BrunoBuilt’s counsel; attorney‑fee award under I.C. §12-121 awarded to defendants (portion attributable to counsel’s sanctionable conduct assessed against counsel) |
Key Cases Cited
- Krinitt v. Idaho Dep’t of Fish & Game, 162 Idaho 425, 398 P.3d 158 (2017) (standard of review for summary judgment)
- Foster v. Traul, 145 Idaho 24, 175 P.3d 186 (2007) (construe disputed facts and inferences for nonmoving party)
- Brian & Christie, Inc. v. Leishman Electric, Inc., 150 Idaho 22, 244 P.3d 166 (2010) (economic‑loss rule and when property is ‘‘subject of the transaction’’)
- Owyhee County v. Rife, 100 Idaho 91, 593 P.2d 995 (1979) (licensure threshold for treating a defendant as a professional under the malpractice statute)
- Jones v. Jones, 117 Idaho 621, 790 P.2d 914 (1990) (effects of consolidation on disqualification rights)
- Summerfield v. St. Luke’s McCall, Ltd., 169 Idaho 221, 494 P.3d 769 (2021) (limits on using motions to reconsider for appellate preservation)
- Bergeman v. Select Portfolio Servicing, 164 Idaho 498, 432 P.3d 47 (2018) (I.A.R. 11.2 frivolous‑filings clause parallels I.C. §12-121 fee awards)
- Akers v. Mortensen, 160 Idaho 286, 371 P.3d 340 (2016) (awarding both Rule 11.2 sanctions and I.C. §12-121 fees for frivolous appellate filings)
- Branom v. Smith Frozen Foods of Idaho, Inc., 83 Idaho 502, 365 P.2d 958 (1961) (trial court’s wide discretion to consolidate cases)
- Hartgrave v. City of Twin Falls, 163 Idaho 347, 413 P.3d 747 (2018) (context for awarding appellate sanctions and fees)