Lead Opinion
delivered the Opinion of the Court.
¶1 Greg and Elvira Johnston and the Elvira Johnston Trust appeal an order of the Twentieth Judicial District Court, Lake County, granting summary judgment to Centennial Log Homes & Furnishings, Inc. (Centennial) on the Johnstons’ claims for negligence, breach of warranty and violations of the Montana Consumer Protection Act and Unfair Trade Practices Act. We consider the following issues on appeal:
¶2 1. Whether the District Court erred in concluding as a matter of law that the Johnstons’ claims are barred by the applicable statutes of limitations.
¶3 2. Whether the District Court erred in determining that the release executed by the Leonards is binding on the Johnstons.
¶4 3. Whether the District Court abused its discretion in granting the Johnstons’ motion to dismiss Keeko Log Homes, Ltd. as a defendant.
¶5 We reverse in part and remand the case for further proceedings.
PROCEDURAL AND FACTUAL BACKGROUND
¶6 In 2001, Robert and Sandy Leonard purchased property in Bigfork, Montana. That same year, the Leonards entered into
¶7 In October or November, 2002, the Leonards observed that their wood floors had begun to “bubble,” heave and raise, and they discovered extensive mold underneath the flooring. The Leonards discussed these problems with the Johnstons and Greg Johnston suggested that the Leonards hire an attorney. In an e-mail to the Leonards, Greg Johnston stated, “since I own 34% [sic] of the house, I could have a lawyer friend write a letter also to instill into Centennial that we mean business.” The Leonards hired Peter Leander to represent them and began to meet with him. The Johnstons did not attend those meetings. On December 16, 2002, Leander wrote a letter to Centennial’s counsel that provided a “non-inclusive” list of additional problems with the home, such as cracked tile grout in two bathrooms, a broken shower light, a missing soap dish, stairs that were not to code, and the splitting apart of the corner of the office wall. Sandy Leonard recalled during her May 6, 2011 deposition that she considered the items on this list to be “some minor things.”
¶8 On April 10, 2003, the Leonards executed a “General Release” in favor of Centennial, describing the Leonards’ “casualty” as:
Defective construction of log home in Sunset Heights, Woods Bay, Lake County, Montana; mold infestation and eradication due to defective construction; bodily injury claims due to mold infestation.
The Leonards released Centennial from “any and all” claims for damages, “asserted or unasserted, known or unknown, foreseen or unforeseen, arising out of the described casualty” and, as consideration, Centennial paid $6,000 to the Leonards, extinguished the remaining $59,704.13 due on their construction contract, and released the construction lien on the property. The release covered “all claims for defective construction or warranty arising out of the construction of the premises described above.” The release also covered future damages associated with the Leonards’ casualty:
Inasmuch as the damages and losses resulting from the events described herein may not be fully known and may be more numerous or more serious than it is now understood or expected, the Releasors agree, as further consideration of this agreement, that this Release applies to any and all injuries, damages and*532 losses resulting from the casualty described herein, even though now unanticipated, unexpected and unknown, as well as any and all injuries, damages and losses which have already developed and which are now known or anticipated.
The Leonards, Centennial and all of Centennial’s subcontractors were parties to the release. The Johnstons were not parties, though they held a 36% interest in the property at the time the release was signed.
¶9 On March 31, 2004, the Johnstons granted their 36% interest to the Elvira M. Johnston Trust (Johnston Trust). The following year, on April 5,2005, the Leonards granted their 64% interest in the property to the Johnston Trust.
¶10 In 2004 and 2005, the Johnstons employed Innovative Builders to conduct routine maintenance of the log home. Innovative Builders provided a “punch-list” of repairs to be performed, which included leveling of the home, chinking and staining the exterior logs, repairing the exterior railing and stairway, repairing exterior rock around a post, and replacing a structure beam on the deck in front of the south garage. The Johnstons paid Innovative Builders approximately $50,000 to repair stairs, decks, and problems with settling of the logs.
¶11 The Leonards moved out in 2005 and the home was used as a rental. In 2007, James Johnson and his wife began renting the home. In the spring of 2008, the Johnsons observed that the logs within the home had begun to split in an unusual manner. Johnson, who had worked extensively in the construction and architectural design industries, documented the progression of each occurrence. He observed that “the main support for the roof above the loft was twisting due to the shrinking and splitting of the surrounding support members” and determined that intervention was needed.
¶12 In April 2008, Guy Clare of Rocky Mountain Design inspected the home due to the excessive log cracking and post and beam movement in the loft area. He noted:
... cracked and rotting handrails on the outside deck, and major exterior siding problems. The majority of the “cedar skirl” siding on the upper level of the home had begun to peel away from the wall from lack of proper fastening. The exterior stair posts had been set at ground level and moisture had begun to rot the lower section of each post.
Clare advised the Johnstons to hire a structural engineer “because of the severity of the log splitting and structural movement of the log roof beams located at the upper loft.”
¶13 John Thomas of A2Z Engineering performed site visits on May 7, 2008 and May 21,2008 to evaluate the home’s structural integrity and
During my site visit I observed significant checking of the majority of beam and column logs in the residence. The fact that this checking has occurred 6 years after the construction of the home suggests to me that the logs were processed and sealed in a moist or “green” condition. Because the logs were heavily sealed it would take a much longer time for the log to lose enough moisture to initiate checking. However, once checking began the log would then have an avenue to rapidly lose moisture through the check and further drying would then proceed rapidly.... Homeowner testimony of the windows breaking/jamming and multiple large screw jack adjustments add to the likelihood that high moisture content material was used.
According to Thomas, there was no way to ascertain the moisture content of the logs if moisture samples were not taken at the time of construction. He discovered additional problems, including several connections along the ridge beam of the structure which were not code compliant, an intermediate valley support that appeared to push toward the ridge beam, creating potential for large roof deflections and failure of the roof under snow loads, and an inadequate header above the garage door, creating risk of significant structural collapse.
¶14 Based on Thomas’s recommendations, Clare of Rocky Mountain Design estimated the total repair cost to be $125,000, but clarified that the estimate pertained only to the “current problems that can be seen as of this writing.” He noted again that there had been “significant changes” to the interior logs of the home since his first visit in April 2008.
¶16 In December 2008, James Johnson discovered sheets of ice cascading down the exterior walls of the home. Water also was flowing down the interior walls, causing extensive flooding throughout the home, including the basement. Inspections performed by Rocky Mountain Design and A2Z Engineering revealed that a copper pipe running through the ceiling space beneath the home’s upper floor had ruptured. The pipe had frozen in the recent below-zero temperatures, as a direct result of failure to insulate the upper floor space. A2Z Engineering reported that “[g]aps between the soffit and siding were found to be in excess of one inch and in some instances as great as two or three inches ... in substantial deviation from accepted standards of construction.” Additionally, the large gaps allowed rodents to “enter the home and eat the insulation off the electrical wiring,” which, the report concluded, created substantial risk of fire damage:
... had the home not flooded!,] it likely would have been an eventual loss due to fire. Full culpability for this incident lies with the general contractor for not properly sealing and weatherproofing the home.
A2Z Engineering recommended that the home “immediately be dried out by a qualified disaster restoration team” and that the pipes be drained and filled with antifreeze.
¶17 Beaudette Consulting Engineers inspected the home twice in October 2009 and found numerous structural defects-including lateral shifting of ridge corbels at post locations in the roof, lack of positive fasteners in the roof framing between the ridges and purlins to log columns, improperly sized log joists, excessively loaded floor joists, laterally unstable stairs, an overstressed header beam above the garage door, and inadequate log wall pinning. The report clarified that these findings were considered “preliminary in nature.”
¶18 In January 2010, the Johnstons hired Rocky Mountain Design to
¶19 Defects discovered upon demolition included: (1) Both decks were supported solely by rotten structural logs, which “disintegrated and broke” during removal and “would probably have gone unnoticed until the collapse of the deck.” The rotting resulted from the “lack of any proper valley drainage” coupled with a “very poor roof/valley design.” (2) Outside water infiltration from the second level deck, resulting from a poorly designed roof valley, caused rotting of the structural log wall under the apex of the deck. (3) Outside water infiltration from the second level deck resulted in extensive interior water and mold. (4) A lack of sealing and weatherproofing allowed air infiltration and massive rodent infestation in “almost every wall and ceiling cavity of the home,” with up to fifteen dead mice found in one wall cavity. (5) Logs within the home had checked excessively, in violation of the building code. (6) The post and beam in the upper loft connection were turning, rolling and splitting, as was the corbel supporting that intersection-to the point of nearly splitting in two. Directly above that intersection, a third ridge beam, which supported the roof, lacked any mechanical connectors. (7) The log structure was not secured to the foundation with mechanical fasteners; during deconstruction, Rocky Mountain Design was able to slide the home off the main sub-floor where it had been resting. (8) No hurricane connectors or structural hold downs had been applied to the thirty-three-foot tall glass gable. (9) The deck joists used on the exterior decks were not nailed properly-many sat loose within their hangers or had fallen out. (10) Poor and inconsistent framing practice throughout the house resulted in loose stair treads and a wobble to the finished staircase. Incomplete or missed framing in the basement, including a two- or three-inch gap where it should have connected to the front gable and little connection between the entire basement level and the gable, would subject the gable wall to complete failure during a catastrophic event. The two-story chimney was primarily supported by the main floor framing, with no additional structural support. (11) The header above the garage
¶20 In June 2008, Greg Johnston consulted with Charles Lewis, an attorney from Chicago, regarding the home. Lewis revised a letter written on behalf of Elvira Johnston to Centennial. In his e-mail to which the redrafted letter was attached (which was included in Centennial’s summary judgment submission to the District Court), Lewis stated to Greg Johnston: “I don’t want to refer to the earlier problems or the fact that the structural problems have existed for some time. This will lead to a statute of limitations defense.”
¶21 On October 8, 2009, the Johnstons filed a complaint against Centennial, alleging negligent construction of the home, breach of statutory and implied warranties, and violations of the Montana Consumer Protection Act and Montana Unfair Trade Practices Act. In their Amended Complaint, filed May 12,2010, the Johnstons added as a defendant Keeko Log Homes, Ltd. (Keeko), “the designer and/or manufacturer of the log home package which was constructed by Centennial and others.”
¶22 On September 2, 2011, Centennial filed a motion for summary judgment arguing that the Johnstons’ claims were time-barred under the applicable statutes of limitations and also that their claims were waived by the Leonards’ release. The District Court granted summary judgment to Centennial on both grounds. The court concluded that the 2004 and 2005 repairs “should have put Plaintiffs on notice of the need to have the home evaluated by someone with a background in residential home construction,” at which point the “alleged self-concealing defects would have become apparent[.]” The Johnstons’ negligence and Unfair Trade Practices Act claims thus accrued by 2005 and should have been filed by 2008 and 2007, respectively. The court also concluded that because “[a]ll of the Trust’s ownership interest in the property arose after the execution of the release and the Trust was plainly a ‘successor’ to the Leonards’ interest in the property,” the release applied to the Johnstons’ interest in the property and waived all of their claims. The court stated in a footnote: “Even if the release
¶23 On June 4, 2012, the Johnstons filed a motion to dismiss their claims against Keeko under M. R. Civ. P. 41(a)(1), which the District Court granted on June 7, 2012. Centennial cross-appeals the District Court’s dismissal of Keeko.
STANDARD OF REVIEW
¶24 We review de novo a district court’s summary judgment ruling. Meloy v. Speedy Auto Glass, Inc.,
¶25 In Montana, “the law of contracts governs releases.” Sperry v. Mont. State Univ.,
¶26 We review for an abuse of discretion a district court’s discretionary rulings, including the court’s order granting voluntary dismissal under M. R. Civ. P. 41(a)(2). Teal, Inc. v. Wiedrich,
DISCUSSION
¶27 1. Whether the District Court erred in concluding as a matter of law that the Johnstons’ claims are barred by the applicable statutes of
¶28 The Johnstons’ claims for negligence and breach of warranty were subject to a three-year statute of limitations. Section 27-2-204(1), MCA. Their claims under the Unfair Trade Practices Act were subject to a two-year statute of limitations. Section 27-2-211(l)(c), MCA (providing that statute of limitations for “a liability created by statute” generally is two years). The Johnstons allege that they “were unaware and could not reasonably have been aware” of many of the serious structural problems until mid-2008 and that some of the problems with the home were not discoverable until the home was deconstructed in 2010. They argue that the applicable statutes of limitations should have been tolled under the “discovery rule,” which provides:
The period of limitation does not begin on any claim or cause of action for injury to person or property until the facts constituting the claim have been discovered or, in the exercise of due diligence, should have been discovered by the injured party if:
(a) the facts constituting the claim are by their nature concealed or self concealing; or
(b) before, during, or after the act causing the injury, the defendant has taken action which prevents the injured party from discovering the injury or its cause.
Section 27-2-102(3), MCA. In short, “[t]he discovery rule applies where the facts constituting the injury by their nature are concealing, or the defendant has taken some action that prevents the injured party from discovering the injury or its causes.” Burley v. Burlington N. & Santa Fe Ry. Co.,
¶29 The parties dispute whether genuine issues of material fact exist regarding applicability of the discovery rule. The District Court granted summary judgment in favor of Centennial based on its conclusion that the repairs the Leonards made to the home during 2004 and 2005 “should have put Plaintiffs on notice” that an inspection report was needed and its further conclusion that an inspection conducted in 2005 would have revealed the structural defects that the Leonards later discovered:
Even assuming the Leonards’ issues with the home in 2002 and 2003 did not put Plaintiffs on notice of their claim, Plaintiffs made repairs to the home in 2004 and 2005 to correct numerous*539 problems. Plaintiffs spent approximately $50,000 doing so. That Plaintiffs did not know the exact nature of the construction defects is irrelevant.... At the very least, the numerous repairs made in 2004 and 2005 should have put Plaintiffs on notice of the need to have the home evaluated by someone with a background in residential home construction. Had Plaintiffs done so, the alleged self-concealing defects would have become apparent, as is evident from the inspection report eventually they obtained.
¶30 The Johnstons allege that the issues with the home in 2002 were “minor flooring and aesthetic problems” and that they considered the repairs made to the home in 2004 and 2005 to be “routine maintenance issues.” They argue that, in comparing the minor defects discovered in 2002 and 2005 with the problems discovered in 2008, 2009 and 2010, “it becomes clear there is no rational relationship between the two distinct categories.” Thus, they contend that whether they “ ‘should have known’ of hidden defects such as the lack of critical log wall pinning, hidden mold and lack of connection to the foundation in 2005 should not have been resolved on summary judgment.” Viewing the facts in the light most favorable to the Johnstons, we conclude that genuine factual issues exist regarding whether the Leonards reasonably were put on notice of the more serious structural problems by 2005, as well as whether the problems experienced by 2005 were related to those discovered in 2008 and 2010.
¶31 As noted, in 2002, the Leonards observed problems with the bubbling and heaving of their wood floors, discovered extensive mold underneath the floors and began to discuss these issues with Leander. Leander’s December 2002 letter to Centennial’s counsel complained of the flooring and mold issues and provided the following list of additional problems with the home:
1. Kids’ bathroom tile-grout is cracking
2. Master bathroom tile-grout is cracking
3. Ends’ bathroom is missing a soap dish (promised by Centennial for over 3 months)
4. Master bathroom shower light has fallen apart
5. Kitchen vent still needs to be replaced
6. Stairs still not to code
7. Loft railing needs to be sanded and repaired
8. Office wall (corner) is splitting apart (plus wood in ceiling)
9. Total site cleanup
10. Pipes need adjusting (noise)
The inclusion of a building code violation and cracking of the walls and
¶32 Additionally, the Johnstons were aware that the logs in a newly constructed home are prone to settlement issues and require maintenance in order to stabilize. In his May 2008 report prepared on behalf of A2Z Engineering, Thomas explained that “[l]og homes are inherently prone to maintenance, settlement, and checking issues.” Josh Harmon, owner of Centennial, indicated during his deposition that a “log house is designed to settle and shift” and that screw jack adjustments and other maintenance may be required in leveling the home. Centennial points out that, in 2004 and 2005, Innovative Builders performed repairs of more than one staircase, as well as the home’s decks, and that the Johnstons paid them approximately $50,000-an expense Centennial suggests exceeds the cost of mere maintenance. The Johnstons allege that, as first-time owners of a log home, they reasonably considered the work performed by Innovative Builders as constituting “routine maintenance” of a log home-regardless of the cost-and were led by Centennial to believe that it could take five to ten years for the home to settle. Harmon represented during his deposition that, as a log home settles, the movement of windows and doors-even to the point where they fail to close-typically is not a construction defect, but instead indicates that screw jack adjustments are required:
The log house is designed to settle. The windows and doors are installed in such a manner that the logs can continue to settle. If a door were to bind up or a window would not open, that is-that tells you that the house is-that the jacks need to be adjusted in the house. The jacks are located on vertical posts that don’t shrink in height. Logs shrink in diameter only.
So there’s support places in the house that have a[n] adjustable jack on them. If those jacks aren’t adjusted properly*541 then you can have issues with the doors and windows.
The parties thus have offered conflicting evidence regarding whether the problems discovered in 2002 and the extent of repairs made in 2004 and 2005 reasonably put the Leonards on notice of the serious nature of the problems with their home. Our well- established summary judgment standard dictates that we may not weigh the evidence or choose one disputed fact over another. Fasch, ¶ 17; see also Tacke v. Energy W., Inc.,
¶33 We also agree with the Johnstons that factual questions arise in determining the extent to which the problems discovered by 2005 are related to the issues discovered between 2008 and 2010. As discussed, in 2008, the Johnsons discovered a burst water pipe that resulted from Centennial’s failure to insulate the upper level of the home. Upon deconstruction of the home in 2010, Clare of Rocky Mountain Design documented many “hidden defects” and provided a list of structural problems, some of which had not been discovered through previous inspections. These included, among others, the rotting of structural logs and posts supporting the decks, due to the lack of valley drainage and lack of protection of the logs from the ground surface, the failure to seal and waterproof the walls of the home, the failure to secure the front gable to the basement level, and the failure to secure the entire log structure to the foundation. Even if the Johnstons were on notice that some structural problems existed, the evidence raised a question of fact as to whether, in the exercise of due diligence, they should reasonably have become aware of the severity of those problems prior to the time the home was deconstructed.
¶34 We disagree with Centennial that the case simply raises disputes about whether the extent of the plaintiffs’ damages was known. Thus, Centennial’s reliance on E.W. v. D.C.H.,
¶35 For similar reasons, we agree with the Johnstons that Deschamps v. Treasure State Trailer Ct., Ltd.,
¶36 Here, as discussed, evidence of when the Johnstons should have first discovered the serious construction defects in their home is “inconsistent and unclear.” See Thompson v. Nebraska Mobile Homes Corp.,
¶37 Centennial argues as an alternative ground for dismissal of the Johnstons’ Consumer Protection Act claim that “[t]he Johnstons do not fall within the definition of ‘consumers’” under the Act. Because the District Court ruled in Centennial’s favor on an alternative ground, it did not reach this issue. The parties discuss one case, Estate of Donald v. Kalispell Reg. Med. Ctr.,
¶38 2. Whether the District Court erred in determining that the release executed by the Leonards is binding on the Johnstons.
¶39 The Johnstons argue, first, that insofar as the Johnstons were not parties to the release, it applies only to the Leonards’ interest in the property. Secondly, they argue that “the Leonards released only those claims relating to mold and flooring issues and not the significant latent deficiencies which were later found in the home.” We reverse the District Court’s decision that the release applied to the Johnstons’ 36% interest in the property, but agree with the court’s determination that the unambiguous language of the release waived the Leonards’ subsequent claims.
¶40 The Leonards signed the release on April 10, 2003, at which time they owned a 64% interest and the Johnstons owned a 36% interest in the property. The Johnstons were not a party to the release and thus, the terms of the release cannot be applied to their 36% interest. See Fordyce v. Musick,
¶41 Centennial cites Rich v. Ellingson,
¶42 Contrary to the Johnstons’ assertion, the casualty described in the release clearly extends beyond the mold and flooring issues because it applies to “[d]efective construction of log home in Sunset Heights, Woods Bay, Lake County, Montana;....” The Johnstons point out that the release repeatedly refers to mold issues and that the Leonards specifically reserved a claim for mold-related injury to Sandy Leonard’s unborn child. The specific language regarding mold issues, however, does not limit or conflict with the release’s broader application to all other construction defects, known or unknown. The Johnstons cite no authority supporting their argument that the release “can only encompass those defects the Leonards knew about or could have known about with reasonable diligence at the time of its execution.” To
¶43 Similar to Rich, the Johnstons refer to extrinsic evidence of the parties’ intentions at the time the document was executed-such as correspondence between the parties’ attorneys-in suggesting that the contract is ambiguous. As in Rich, we conclude that the terms of the release are clear and unambiguous; thus, we must “apply the language as written.” Rich, ¶¶ 13, 15.
¶44 Because the Johnstons were not a party to the release, and given our conclusion that the release was not binding on their 36% interest in the property, we need not reach the Johnstons’ alternative argument that the release should be rescinded on the basis of mutual mistake.
¶45 3. Whether the District Court abused its discretion in granting the Johnstons’ motion to dismiss Keeko Log Homes, Ltd. as a defendant. ¶46 Centennial argues that the District Court abused its discretion when it granted the Johnstons’ motion to dismiss Keeko, three days after that motion was filed, without giving Centennial an opportunity to respond. Centennial also argues that the Johnstons’ voluntary dismissal should have taken place under M. R. Civ. P. 41(a)(2), through discretionary court order, rather than under Rule 41(a)(1). ¶47 Under M. R. Civ. P. 41(a)(1), a plaintiff voluntarily may dismiss a defendant without a court order by filing “a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.” Rule 41(a)(1) applies when “the defendant has already been joined in the lawsuit” and preserves the “unqualified right of the plaintiff to a dismissal without prejudice prior to the filing of defendant’s answer.” Rich v. St. Farm Mut. Automobile Ins. Co.,
¶48 The Johnstons cite State ex rel. Butte Teamsters Local v. Dist. Ct.,
¶49 The Johnstons point out that Keeko had not filed an answer or a motion for summary judgment at the time that the Johnstons moved for voluntary dismissal and that Centennial had not filed a cross-claim against Keeko. Nonetheless, the Johnstons’ motion stated that Centennial opposed dismissal of Keeko and, additionally, Centennial argues that its answer to the Johnstons’ complaint included an affirmative defense alleging Keeko’s liability. The answer averred that Centennial “constructed a log home manufactured and designed by Keeko Log Homes” and reserved “the defense of negligence and/or fault of other parties,” as well as entitlement to “contribution or indemnification or causal apportionment.” We conclude that the District Court should have provided Centennial the opportunity to brief its opposition to the motion before ordering dismissal of Keeko under Rule 41(a)(2).
CONCLUSION
¶50 For the foregoing reasons, we reverse the District Court’s summary judgment ruling and remand the case for further factual development on the issue whether the Johnstons’ claims are time-barred under the applicable statutes of limitations. The decision on remand will apply only to the 36% interest in the property owned by the Johnstons at the time that the release was executed. We affirm the District Court’s conclusion that the release is binding on the Leonards’ 64% interest, later transferred to the Johnston Trust. We also reverse
Dissenting Opinion
dissenting.
¶51 I would affirm the judgment of the District Court concluding that the Johnstons’ claims are time-barred as a matter of law. In my view, the undisputed facts establish that the Johnstons were actually aware, or reasonably should have been aware, by 2005-if not 2002-of the wrongful act that resulted in their injuries. I believe this Court, in its Opinion today, has rendered the statutory period of limitations provided by the Legislature meaningless. I do not believe it is the function of this Court to selectively resurrect stale claims when the plaintiffs here actually knew of the alleged wrongful act and concomitant injuries as early as 2002.
¶52 The Legislature has determined that the statutory period for bringing an action in negligence and breach of warranty is three years. Section 27-2-204(1), MCA. Claims for violations of the Unfair Trade Practices Act have a two-year statute of limitations. Section 27-2-211(1)(c), MCA; Osterman v. Sears, Roebuck & Co.,
¶54 This Court has recognized, however, that some types of injuries preclude a strict application of the statutory bar. In particular, the statutory bar will not be applied to prevent the bringing of an action when the injury is self-concealing. This principle is codified in the discovery rule, § 27-2-102(3), MCA. We first applied the discovery rule in a medical negligence action where the injury was self-concealing. Johnson v. St. Patrick’s Hosp.,
¶55 Significantly, it is not necessary for the plaintiff to know the total extent of damages that an act causes in order to begin the running of the statutory bar. Moreover, the failure to understand the causal relationship between the wrongful conduct and the injury does not serve to toll the statutory bar. E. W.,
¶56 In October or November 2002, the Leonards observed that their wood floors had begun to heave and rise, and they discovered extensive mold underneath the flooring. The Leonards communicated these problems to the Johnstons. Additionally, they noted that the stairs had not been installed according to building code and that the corner of the office wall was splitting apart. They determined that the cause of these injuries was the faulty construction of their home by Centennial. This is evidenced by the fact that the Johnstons suggested hiring counsel, Peter Leander, to notify Centennial of the problems with the home, to
¶57 Deposition testimony from the Leonards and the Johnstons established that the repair work performed in 2004 and 2005 by Innovative Builders was for structural damage. Sandy Leonard testified in her deposition that Innovative Builders “redid the stairs and ... adjusted] the doors.” Innovative Builders also repaired the outside decks and “some of the foundation in front of the house [that] was starting to crack.” Moreover, Innovative Builders “fixed gaps in the doors” which had developed because Centennial “didn’t leave room for the house to slide.” Sandy explained that, due to this defect, “the house was falling on top of each other and pushing the doors out” and also “pushing the wall out.” Innovative Builders had to “go in and cut out places for the house to move on top of each other.” Sandy indicated that the work was for structural repair and was separate from the mold problem. Sandy was asked the following by Centennial’s counsel during the deposition:
Q. So prior to your leaving in 2005 you were starting to experience some problems with the home, windows, difficulty closing, doors not shutting, logs starting to move and some of the railings becoming loose; is that correct?
A. Correct.
¶58 The Johnstons’ position that they did not know the cause of their injuries until 2008 is particularly untenable, as noted by the District Court, in light of email correspondence with their new counsel, Charles Lewis, in June 2008. Lewis revised a letter written on behalf of Elvira Johnston to Centennial. In his email to Greg Johnston attaching the redrafted letter, Lewis explained: “I don’t want to refer to the earlier problems or the fact that the structural problems have existed for some time. This will lead to a statute of limitations defense.”
¶59 In light of these undisputed facts establishing that the Johnstons actually knew of the cause of their injuries as early as 2002,1 cannot
¶60 The Court today submits for decision by a jury, Opinion, ¶ 36, an issue that ought to be decided as a matter of law based on clear and undisputed facts. In doing so, we have failed to follow the directives of a statute and the policy behind it-that is, the suppression of stale claims which, due to the passage of time, inhibit a party’s ability to mount an effective defense. We have elevated what we apparently believe is these particular plaintiffs’ entitlement to bring an action over a legislative directive designed to require all plaintiffs to be vigilant in their pursuit of a remedy.
¶61 I therefore would affirm the District Court in its decision that the Johnstons’ claims are time-barred. The undisputed facts establish that the Johnstons either did discover, or in the exercise of due diligence should have discovered, the facts underlying their claims by, at the latest, 2005. The Johnstons were required to file their Unfair Trade Practices Act claim no later than 2007 and their negligence and breach of warranty claims no later than 2008. As the Johnstons did not file their suit until 2009, their claims are barred by the statute of limitations.
¶62 Given that the Johnstons’ action is time-barred, it is not necessary to address any remaining issues.
¶63 I dissent.