Jeremy Hanson, Plaintiff and Appellant v. Dabbert Custom Homes, LLC, Defendant, Third Party Plaintiff, and Appellee v. Draft Busters, Inc., D&M Industries, Inc., Beacon Sales Acquisition, Inc. f/k/a Allied Building Products, Red River Mechanical Incorporated, Red River Drywall, Inc., Score Brothers Construction and Siding, Inc., Bachman, Inc. d/b/a Floor to Ceiling Carpet One, Third Party Defendants
No. 20260023
IN THE SUPREME COURT STATE OF NORTH DAKOTA
2026 ND 139
2026 ND 139
Jensen, Justice.
AFFIRMED.
Opinion of the Court by Jensen, Justice.
Theodore R. Ramage (argued) and Sarah A. Aaberg (on brief), Fargo, ND, fоr plaintiff and appellant.
Alexia L. Jamieson (argued) and James R. Bullis (on brief), Fargo, ND, for defendant, third party plaintiff, and appellee.
[¶1] Jeremy Hanson appeals from a district court order granting summary judgment in favor of Dabbert Custom Homes, LLC, and dismissing Hanson‘s claims for breach of warranty, breach of contract, and negligence. The court held Hanson‘s claims were time-barred under the six-year statute of limitations in
I
[¶2] On November 1, 2014, Hanson entered into a purchase agreement with Dabbert for the construction of a single-family residence at 1131 31st Avenue West, West Fargo, North Dakota. In conjunction with the sale, Dabbert provided Hanson with a one-year residential home warranty. The City of West Fargo issued a certificate of occupancy for the home on February 12, 2015, аnd Hanson closed on the home shortly thereafter. Hanson is a first-time homeowner with no background in construction.
[¶3] After moving into the home, Hanson noticed the northwest corner was colder than the rest of the house. He observed frost buildup on the interior walls, temperature differentials of approximately twenty degrees between the entryway and the upstairs bedroom, and drafts severe enough that he placed towels in front of a closet to block cold air. In the spring of 2015, Hanson contacted the Home Builders Association of Fargo-Moorhead to express concerns about the home conditions and Dabbert‘s lack of response. The HBA responded in June 2015 that it lacked enforcement authority over its members.
[¶4] On December 28, 2015, as the one-year warranty period was drawing to a close, Hanson emailed Dabbert‘s warranty coordinator listing several items for attention. Among those items, Hanson specifically requested an “[i]nsulation check—in upper north west corner house.”
[¶6] After approximately three years of inactivity between the parties, Hanson reinitiated contact with Dabbert about continuing cold conditions. In November 2019, Draft Busters conducted a blower door test at Hanson‘s home. The technician told Hanson that “the house passed.” In December 2019, Dabbert scheduled an аppointment to “seal the plate,” instructing Hanson to prepare the upper level closet for the work.
[¶7] In August 2020, Dabbert drafted a Release, Confidentiality and Non-Disparagement Agreement proposing to remove siding from the north foyer wall, north upper level bedroom wall, and front porch soffit; to fill any voids in insulation or construction materials that may exist; and to ensure the Tyvek was properly sealed. The agreement acknowledged that Dabbert had continued tо try to work with Hanson beyond the warranty period. Dabbert transmitted the agreement to Hanson stating it would schedule the work upon receipt of a signed copy. The agreement was never signed.
[¶8] On February 1, 2022, Hanson engaged Nordic Companies to conduct an independent inspection. The inspection revealed surface temperatures as low as 26 degrees Fahrenheit in the northwest second-floor bedroom, identified “missing or insufficient” insulation in areas of exterior walls, and found fungal growth and paint deterioration from condensation. On July 5, 2022, Hanson accomplished service of a complaint against Dabbert asserting claims for breach of warranty, breach of contract, and negligence.
II
[¶10] Hanson contends Dabbert waived or forfeited its statute of limitations defense by waiting nearly three years after service to seek summary judgment, during which time Dabbert expanded the litigation by filing a third-party complaint against seven subcontractors.
[¶11] With respect to waiver, a defendant may waive the statute of limitations defense by failing to plead it. Gustafson v. Poitra, 2008 ND 159, ¶ 7, 755 N.W.2d 479. Dabbert timely asserted the defense in its answer, so it was properly preserved under North Dakota law. Dabbert did not waive the defense.
[¶12] With respect to forfeiture, Hanson invites us to adopt a principle—drawn from out-of-state decisions—by which active litigation conduct fundamentally inconsistent with a limitations defense may result in a forfeiture “even where the defense was pleaded.” Appellant‘s Brief ¶ 56 (citing Murphy v. William Carey Univ., 382 So.3d 1181, 1188 (Miss. Ct. App. 2024); Turner v. Cosmopolitan Nat‘l Bank, 536 N.E.2d 806, 811 (Ill. App. Ct. 1989)).
[¶13] Here, Dabbert moved for summary judgment within the dispositive motion deadline set by the parties’ agreed-upon scheduling order, just thirty-four days after receiving Hanson‘s deposition transcript. Dabbert‘s decision to conduct discovery and depose Hanson before moving for summary judgment was a reasonable litigation choice, particularly given that the аccrual of a cause of action requires an assessment of what Hanson knew and when.
III
[¶15] Hanson argues the district court erred in granting summary judgment when it concluded his claims were time-barred by the six-year statute of limitations. He contends the record presents competing inferences about when a reasonable person in his рosition would have been on notice of a potential claim against Dabbert, and the court erred in treating the accrual question as a matter of law.
[¶16] Whether the district court properly granted summary judgment is a question of law reviewed de novo on the entire record. Simmons v. Cudd Pressure Control, Inc., 2022 ND 20, ¶ 8, 969 N.W.2d 442. Summary judgment is appropriate when there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or when only questions of law are involved. Johnston Law Off., P.C. v. Brakke, 2018 ND 247, ¶ 7, 919 N.W.2d 733. When the relevant facts are undisputed, the question of when a cause of action
[¶17] Section
[¶18] While a plaintiff‘s knowledge for purposes of accrual is generally a question of fact, the issue becomes one of law when the evidence is such that reasonable minds could draw but one conclusion. Froysland v. Altenburg, 439 N.W.2d 797, 799 (N.D. 1989). Once a party has acquired knowledge of facts sufficient to put a person of ordinary intelligence on inquiry, that party has a responsibility to promptly investigate, and failure to do so is construed against the party. Larson, 2016 ND 214, ¶ 11; Solberg, 2021 ND 44, ¶ 8. Discovery of the cause of action cannot be reasonably delayed until the injured person consults an attorney or obtains professional confirmation of a defect. Froysland, at 799.
[¶19] The undisputed record compels only one conclusion: Hanson had inquiry notice of a potential claim against Dabbert no later than December 28, 2015. He noticed abnormal cold conditions in the northwest corner of the home within months of moving in. He observed frost buildup on the interior walls, temperature differеntials of approximately twenty degrees, and drafts requiring him to place towels against a closet door. By the spring of 2015, he had escalated
[¶20] These undisputed facts establish inquiry notice as a matter of law. The discovery rule focuses on whether a plaintiff was apprised of facts placing a reasonable person on notice of a potential claim—not on whether the plaintiff had subjective certainty or professional confirmation of a defect. Riemers, 2004 ND 188, ¶ 6; Froysland, 439 N.W.2d at 799. A reasonable person who, within onе year of purchasing a new home, observed persistent cold conditions in a specific area, experienced frost buildup and significant temperature differentials, escalated concerns to a trade association, and then specifically requested an insulation inspection of that area from the builder would be on notice of a potential claim regarding the insulation. The 2022 Nordic Companies inspection may have confirmed the full extent of thе deficiency, but it did not mark Hanson‘s first awareness of a problem. See Froysland, at 799 (discovery cannot reasonably be delayed until the injured person consults an attorney or expert); Solberg, 2021 ND 44, ¶ 8 (discovery rule does not require full knowledge of extent of injury).
[¶21] Hanson argues that Dabbert‘s repair and remediation activity following the December 2015 email negated rather than created inquiry notice by conveying the impression that the problem was being addressed through normal warranty and post-warranty chаnnels. This argument conflates two distinct inquiries. The question of when the limitations period began to run is answered by reference to when Hanson first had facts sufficient to place a reasonable person on notice of a potential claim; Dabbert‘s subsequent repair activity does not retroactively alter that date. Whether Dabbert‘s conduct thereafter induced Hanson to forbear filing suit is instead the subject of equitable estoppel, which we address separately below.
[¶23] Because Hanson did not commence this action until July 5, 2022—more than six years and six months after the December 28, 2015 accrual date—his claims are time-barred under
IV
[¶24] Hanson argues that even if his claims are otherwise time-barred, equitable estoppel precludes Dabbert from asserting the limitations defense because Dabbert‘s conduct between 2015 and 2021 induced him to delay filing suit. When the underlying facts are undisputed, the application of equitable estoppel to a statute of limitations defense is a matter of law reviewed de novo. Muhammed v. Welch, 2004 ND 46, ¶ 25, 675 N.W.2d 402.
[¶25] To invoke equitable estoppel, Hanson must prove: (1) Dabbert made statements or engaged in conduct from which, considering all surrounding facts and circumstances, it was evident Dabbert intended Hanson would rely thereon; (2) Hanson relied on Dabbert‘s representations or acts and, as a result, failed to commence the action within the prescribed period; and (3) Dabbert‘s acts occurred before the expiration of the limitation period. Burr v. Trinity Med. Ctr., 492 N.W.2d 904, 908 (N.D. 1992); Muhammed, 2004 ND 46, ¶ 19. The doctrine of equitable estoppel may preclude application of the statute of limitations by one whose actions misled another, thereby inducing that person not to file a claim
[¶26] The core of the doctrine is captured in the following principle:
One cannot justly or equitably lull his adversary into a false sense of security, and thereby cause his adversary to subject his claim to the bar of the statute of limitations, and then be permitted to plead the very delay caused by his course of conduct as a defense to the action when brought.
Schmidt v. Grand Forks Country Club, 460 N.W.2d 125, 129–30 (N.D. 1990) (cleaned up). The operative standard, accordingly, is whether the defendant‘s “conduct or promises are such as аre naturally calculated to and do induce plaintiff into a belief that his claim would be adjusted if he did not sue.” Id. at 130 (cleaned up). Mere settlement discussions, standing alone, do not satisfy this standard. Superior, 2007 ND 141, ¶ 25. “It is only when defendant‘s actions are calculated to induce plaintiff to believe that the claim will be settled without suit that negotiations may give rise to equitable estoppel.” Huber v. Oliver Cnty., 529 N.W.2d 179, 183 (N.D. 1995) (citing Schmidt, at 130).
[¶27] This standard has important practical implications in construction defect cases. A contractor who resрonds to a homebuyer‘s complaints and attempts in good faith to remedy defects does not act in a manner “calculated to induce” forbearance from filing suit. Repair activity is calculated to address the problem—not to run out the limitations clock. To hold otherwise would create a perverse incentive: contractors would be deterred from attempting remediation out of concern that their good-faith efforts would later be characterized as conduct lulling the homeowner into delay. Equitable estoppel is designed to prevent defendants from exploiting the forbearance their own misleading conduct created—not to penalize defendants who respond in good faith to their customers’ complaints.
[¶28] To establish estoppel against a contractor in this context, there must be conduct that, objectively viewed, would signal to a reasonable homeowner that resorting to litigation was unnecessary beсause the contractor was genuinely
[¶29] Hanson did not show Dabbert‘s repair conduct was naturally calculated to lull him into a sense that litigation would not be required. Instead, Dabbert‘s coordination of post-warranty inspections and remediation work through Draft Busters was the kind of good-faith response to a homebuyer‘s complaints that the equitable estoppel doctrine was not designed to penalize. Nothing in the record suggests that Dabbert‘s direction of Draft Busters to perform diagnostic
[¶30] Hanson‘s own deposition testimony further undermines the reliance element of his estoppel claim. He attributed his delay in commencing this action to financial constraints arising from a workplace injury that caused him to miss seven weeks of work and lose income, not to any representation or assurance by Dabbert that litigation would be unnecessary. A party seeking to invoke equitable estoppel must demonstrate that the defendant‘s conduct actually induced the delay. Where the plaintiff‘s own testimony weakens any causal link between the defendant‘s conduct and the plaintiff‘s failure to timely file, estoppel cannot lie. Narum v. Faxx Foods, Inc., 1999 ND 45, ¶ 26, 590 N.W.2d 454 (plaintiff may not invoke equitable estoppel unless plaintiff exercises due diligence in commencing action after circumstances giving rise to estoppel cease to be operational).
V
[¶31] As part of his challenge to the district court‘s deсision on equitable estoppel, Hanson also contends the court applied the wrong legal standard by requiring him to show affirmative deception without considering this Court‘s recognition that the existence of a duty to disclose may substitute for affirmative deception. See Muhammed, 2004 ND 46, ¶ 20 (“[t]he suppression of a material fact, which a party is bound in good faith to disclose, is equivalent to a false representation,” and “[t]he existence of a duty to disclose relieves the injured party of the burden of showing an affirmative deception to postpone the running of a statute of limitations“). We address this argument on the merits and conclude the exception does not apply.
[¶33] The circumstances needed to trigger a duty to disclose are not present here. As the non-moving party, Hanson was required to present evidence to establish that Dabbert possessed actual knowledge of a specific insulation deficiency that it affirmatively withheld from Hanson. The draft settlement agreement proposed to remove siding to fill “any voids in insulation or construction materials that may exist“—language acknowledging uncertainty about whether voids existed, not concealmеnt of a known defect. Hanson has not presented evidence that Dabbert itself knew the results of the blower door tests were false. Moreover, the independent inspection Hanson ultimately requested, and his ownership of the home, establish that he had the means of obtaining relevant information regarding an alleged construction defect.
[¶34] Finally, the vendor-purchaser relationship between a homebuilder and a homebuyer does not give rise to the kind of continuous confidеntial or fiduciary relationship that underlies the duty-to-disclose exception recognized in Krueger, 305 N.W.2d 18. See, e.g., Cabrini Med. Ctr. v. Desina, 479 N.E.2d 217, 219-20 (N.Y. 1985) (declining to apply the “continuous treatment” principle to a construction contractor in part due to the absence of a fiduciary relationship); State Farm Fire & Cas. Co. v. Joseph G. Kelley Constr. Mgmt., Inc., No. 04-CV-3136 (TCP), 2007 WL 9724590, at *2 n.3 (E.D.N.Y. Jan. 31, 2007) (indicating that the continuous treatment doctrine may apply to an architect as a professional, but not to a construction contractor).
[¶35] We affirm the district court‘s order granting summary judgment in favor of Dabbert Custom Homes, LLC, and dismissing Hanson‘s complaint with prejudice.
[¶36] Lisa Fair McEvers, C.J.
Jerod E. Tufte
Jon J. Jensen
Douglas A. Bahr
Mark A. Friese