¶2 We restate the issue on appeal as follows:
Did the District Court err in granting DEQ, Birks, and Flathead's motions for summary judgment?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 William Koenig (Koenig) was the developer of the Harvest View Subdivision (Subdivision) near Kalispell, MT. In approximately November 2005, Koenig engaged Birks to perform engineering services in connection with development of the Subdivision. Birks performed these services from July 2007 to April 2010. On April 2, 2008, the July 28, 2007 DEQ Certificate of Subdivision Plat Approval (COSA) for the Subdivision was filed in the Clerk's records. The COSA stated the public water system will be provided to the Subdivision and required completion of such within three years of the approval date. It also indicated the developer/owner of record, Koenig, to be responsible for providing a copy of the COSA to all eventual purchasers. Norbecks admit the COSA allowed purchasers to buy and build without the water system completed or having final DEQ certification. Also on April 2, 2008, as part of the final Subdivision plat, a subdivision improvement agreement (SIA) was filed in the Clerk's records. The April 2008 SIA identified necessary infrastructure improvements and reflected Koenig's bond to complete those improvements if he failed to do so. The projected cost of the on-site water supply and pump house improvements was $19,740. On December 19, 2008, another SIA between Koenig and Flathead was filed in the Clerk's records. The December 2008 SIA indicated the Subdivision water system was completed "9/2005" and again estimated the construction costs for the remaining on-site water supply and pump house improvements that still needed to be completed to be $19,740.
¶4 Norbecks purchased a lot in the Subdivision on December 29, 2008, known as 500 Harvest View Lane (Property). On December 31, 2008, Fidelity National Title Company (Fidelity) issued Norbecks a title insurance policy excepting from coverage, among other things, the April 2008 SIA. Norbecks then built their home on the Property, finishing it in January 2010. During construction Norbecks
¶5 In early February 2013, Norbecks received a Notice of Violation sent by DEQ to Birks indicating DEQ required the project engineer to submit a certification letter for public water and storm water systems and that, within 90 days of installation, a complete set of as-built drawings were required. On August 15, 2013, another Notice of Violation was issued which set forth a list of water system information DEQ required Birks submit. DEQ issued another Notice of Violation on January 22, 2014, which indicated that Koenig had notified DEQ on January 17, 2014, he had retained a different engineer on the project. Koenig and DEQ then entered an Administrative Order on Consent effective June 4, 2014, which outlined various violations by Koenig, stipulated penalties, and corrective actions required. Norbecks have admitted they had constructive notice of the violations found by DEQ involving the Subdivision as they lived without water for 3 weeks and experienced flooding and ongoing water quality issues. In the summer of 2014, Norbecks decided to sell their home and were informed they could not sell their home using conventional financing due to the DEQ violation notices. On November 14, 2014, Norbecks filed suit against
¶6 On February 23, 2017, Glacier moved for summary judgment. Norbecks did not respond and on April 4, 2017, the District Court granted Glacier's summary judgment motion. Thereafter, Glacier moved to certify the order as final, Norbecks again did not respond and the District Court certified its order and entered final judgment against Norbecks on June 27, 2017. Norbecks sought no further relief from the final judgment in favor of Glacier.
¶7 On August 10, 2017, Fidelity filed its motion for summary judgment. Norbecks did not respond and the District Court granted Fidelity's motion on September 7, 2017. In its order the District Court found, as a matter of law, Norbecks' claims relating to violations associated with the completion of the Subdivision's water system, were known to or in the exercise of due diligence were discoverable by Norbecks no later than May 1, 2010,
¶8 On October 5, 2017, Norbecks filed a motion to dismiss both Koenig defendants, which was granted by the District Court on October 24, 2017.
¶9 On September 15, 2017, Birks sought summary judgment asserting Norbecks' Complaint was barred by applicable statutes of
¶10 On September 28, 2017, DEQ filed its motion for summary judgment asserting DEQ could not be held liable for MUTPA, constructive fraud, or punitive damage claims and that the statute of limitations had run on all tort claims. Norbecks responded on October 23, 2017, conceding their MUTPA, constructive fraud, and punitive damage claims against DEQ and asserting the statute of limitations on their tort claims should be tolled. On November 3, 2017, DEQ filed its reply in which it argued the law of the case precluded Norbecks from asserting the statute of limitations began to run on a different date than that already determined by the Court, the discovery rule was not applicable as Norbecks had sufficient notice of the water system issues to trigger their duty to conduct a reasonable inquiry, and their own admissions precluded tolling. On December 19, 2017, the District Court granted DEQ's motion for summary judgment. DEQ moved to certify the order on December 28, 2017, and on January 23, 2018, the District Court granted the motion and entered final judgment against Norbecks.
¶11 On January 19, 2018, Flathead filed its motion for summary judgment also asserting it could not be held liable for MUTPA, constructive fraud, or punitive damage claims and that the statute of limitations had run on all tort claims. On February 12, 2018, Norbecks responded conceding summary judgment was appropriate on their MUTPA, constructive fraud, and punitive damage claims and asserting the statute of limitations did not begin to run on their remaining claims until they discovered DEQ's involvement in the Subdivision review. On March 1, 2018, Flathead replied asserting the law of the case precluded Norbecks from arguing the statute of limitations began to run on a different date than that already determined by the District Court and the discovery rule did not apply as Norbecks had ample notice of water system issues to require their further investigation. On March 23, 2018, the District Court granted Flathead's motion for summary judgment. Norbecks now appeal the District Court's summary judgment orders regarding DEQ, Birks, and Flathead.
STANDARD OF REVIEW
¶12 We conduct a de novo review of a district court's ruling on
¶13 We review a district court's interpretation and application of a statute to a particular set of circumstances for correctness. Finn v. Dakota Fire Ins. Co. ,
DISCUSSION
¶14 Did the District Court err in granting DEQ, Birks, and Flathead's motions for summary judgment?
¶15 DEQ, Birks, and Flathead assert Norbecks' claims are barred by applicable statutes of limitation, the discovery rule is inapplicable to toll the start of the limitation periods as the Norbecks were aware of water system problems of the Subdivision that would prompt a reasonable person to conduct further inquiry, and Norbecks are precluded from asserting the limitation periods began to run as of a different date than that already determined by the District Court.
¶16 Norbecks counter they are suing for "damages that happened in the summer of 2014 when they decided to sell their house and found out that conventional financing could not be obtained because of DEQ Notices of Violation" and that they were "unaware of this issue until DEQ issued Notices of Violation on February 4, 2013 and August 15, 2013." They contend that until 2014 when they attempted to sell their home, they were not damaged by the underlying violations of Birks or the inactions of Flathead and DEQ.
¶17 A claim for violation of MUTPA is subject to a two-year statute of limitations. Osterman v. Sears ,
¶18 A claim accrues and the limitations period begins to run "when all elements of the claim or cause exist." Section 27-2-102(1)(a), MCA.
¶19 The discovery rule provides an exception to this general rule. Under the discovery rule, the period of limitation does not begin to run until the injured party discovers the facts constituting the claim or, in the exercise of due diligence, should have discovered the facts constituting the claim if the facts constituting the claim are by their nature concealed or self-concealing or a defendant has taken action preventing plaintiff from discovering the facts. Section 27-2-102(3), MCA ; Draggin' Y Cattle Co. v. Addink ,
¶20 The District Court determined the facts constituting Norbecks' claims were discovered or, in the exercise of reasonable diligence, should have been discovered by Norbecks no later than May 1, 2010. From our review of the record, the undisputed facts support the District Court's finding that Norbecks claims accrued no later than May 1, 2010. Despite Norbecks' arguments to the contrary, Norbecks admit the facts constituting their claims were discovered or, in the exercise of reasonable diligence should have been discovered by them no later than May 1, 2010. Norbecks admit the April 2008 COSA allowed purchasers to buy and build without the water system
¶21 Norbecks now argue on appeal that despite their lack of water, their home flooding and their ongoing problems with both the quality and quantity of their water occurring prior to May 1, 2010, the District Court erred in dismissing their claims because "they were not damaged by the underlying violations of Defendants Birk or the inactions of the DEQ and Flathead County" until 2014 when they attempted to sell their home such that the statute of limitations did not began to run until the summer of 2014 when they discovered their alleged inability
¶22 Flathead and DEQ assert this argument should not be considered as it is a new theory on appeal-"a wholesale departure from the arguments Norbecks raised before the District Court" where they argued "the statute of limitations relative to DEQ could not have started prior to November 2012 or February 2013." Norbecks contend they argued "to the Court, and again argue to this Court, that until 2014, when they attempted to sell their home, they were not damaged by the underlying violations of Defendants Birk or the inaction of the DEQ and Flathead County." Norbecks argued to the District Court that they were not aware that the SIAs and COSA on the Subdivision were not complete until August 2013, and they were not familiar with the interplay of COSAs and SIAs. They contended the SIAs and COSA were self-concealing and their complexity precluded setting the accrual date of their claims prior to the DEQ violation notices.
¶23 Norbecks fail to set forth any evidence that the facts constituting their claims were concealed in any way or that DEQ, Birks, or Flathead acted in any manner to prevent Norbecks from discovering the facts constituting their claims. As outlined above, Norbecks had actual knowledge of deficiencies in the water system serving their home in 2009, 2010, and beyond. As of April 2008, both the COSA and 2008 SIAs were on record with the Flathead County Clerk and Recorder's Office. Both documents, of which Norbecks had constructive notice pursuant to § 70-21-302(1), MCA, provided information that the Subdivision's water system needed to be completed by a date certain, a date which passed without completion. Further, the 2008 SIA specifically excepted in Norbecks' title insurance policy outlined the outstanding work to be performed including over $19,000 of work on the Subdivision water system. Norbecks argue they should be excused from conducting a reasonable inquiry because the complexity of the COSA and SIAs were such that only business people involved in the daily transactions of them could understand them. This assertion is disingenuous considering Norbecks' admission that they were able to learn a lot about the SIAs and COSA in late 2012 and 2013. Norbecks
¶24 It is "not necessary to know the total extent of damages that an act causes to begin the running of the statute of limitations." E.W. v. D.C.H. ,
¶25 Norbecks assert "the District Court did not correctly apply Montana case law relative to the 'law of the case.' " On September 7, 2017, the District Court granted Fidelity's motion for summary judgment. In that Order the District Court found, that with the exception of the allegations of Count 3 of Norbecks' Complaint relating specifically to Glacier, Norbecks' claims are pleaded generally and collectively to all Defendants. The District Court found the Norbecks'
¶26 The "law of the case" posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. Arizona v. California ,
¶27 DEQ, Birks, and Flathead contend the District Court did not erroneously apply the law of the case doctrine. Norbecks pleaded their claims generally against all named Defendants such that the District Court's determination with respect to the date the Norbecks' claims accrued applied to all Defendants. Once the District Court made its determination and the time for appeal expired, the accrual date determined by the District Court-no later than May 1, 2010-became
¶28 We conclude the District Court did not incorrectly apply the law of the case doctrine. The purpose of the law of the case doctrine promotes finality and efficiency of the judicial process and protects against disturbing resolved issues. Christianson v. Colt Indus. Operating Corp .,
CONCLUSION
¶30 The District Court did not err in granting Defendants DEQ, Birks, and Flathead's motions for summary judgment.
¶31 Affirmed.
We concur:
MIKE McGRATH, C.J.
LAURIE McKINNON, J.
BETH BAKER, J.
DIRK M. SANDEFUR, J.
Notes
The Norbecks did not request an opportunity to respond to the order granting summary judgment to Glacier, as they agreed with it.
Such as that their home would not qualify for a conventional mortgage, thus impairing their ability to sell it.
Scott v. Scott ,
Norbecks conceded their MUTPA and punitive damage claims leaving only their remaining tort claims.