02/10/2026
DA 25-0285 Case Number: DA 25-0285
IN THE SUPREME COURT OF THE STATE OF MONTANA
2026 MT 21
CHRISTOPHER B. ATKINSON and JENNIFER E. ATKINSON,
Plaintiffs and Appellants,
v.
CITY OF LIVINGSTON, a political subdivision,
Defendant and Appellee.
APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DV-34-2024-71-NE Honorable Brenda R. Gilbert, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Brian J. Miller, Morrison, Sherwood, Wilson, and Deola PLLP, Helena, Montana
For Appellee:
Brian L. Taylor, Ryan C. Addis, Greyson D. Hill, Taylor Nicastro Browne LLC, Billings, Montana
Submitted on Briefs: January 7, 2026
Decided: February 10, 2026
Filed:
__________________________________________ Clerk Justice Katherine Bidegaray delivered the Opinion of the Court.
¶1 Christopher and Jennifer Atkinson (the Atkinsons) appeal from the District Court’s
order granting summary judgment to the City of Livingston (the City) on their claims for
negligence and negligent misrepresentation. We address the following restated issue:
Whether the District Court erred when it held that the statute of repose found in § 27-2-208, MCA (2023), barred the Atkinsons’ claims against the City for negligence and negligent misrepresentation.
Because the claims are barred by the statute of repose set forth in § 27-2-208, MCA (2023),1
we affirm and do not reach the remaining issues raised on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In 2005 and 2006, the City approved the Ridgeview Trails Major Subdivision
following conditional preliminary plat approval and final plat approval. In March 2006,
SK Geotechnical prepared, for the subdivision developers and their consultants, a
geotechnical evaluation identifying expansive and collapsible soils. The report was not
prepared for the City and was not incorporated into the subdivision approval conditions.
¶3 The developer conveyed Lot 29 of the subdivision to Thomas and Niam Moody in
2006. In April 2012, the Moodys sold Lot 29 to the Atkinsons. The geotechnical report
was not provided to the Atkinsons at the time of purchase.
¶4 On November 16, 2012, the Atkinsons’ contractor applied for and received a
building permit from the City to construct a single-family residence on Lot 29. The permit
stated that the applicant and owner were responsible for compliance with applicable
1 All references to § 27-2-208, MCA, herein are to the 2023 version of the statute. 2 building codes and ordinances. The parties agreed, before the District Court, that the
conduct complained of in the action—the City’s issuance of the building permit without
disclosing the geotechnical report or requiring execution of an acknowledgment
agreement—occurred on November 16, 2012.
¶5 The City conducted the inspections required by the adopted building codes during
construction. On June 21, 2013, the City issued a Statement of Substantial Completion,
certifying that it had performed the required inspections and that, based on those limited
inspections, the residence substantially complied with minimum inspection requirements.
The statement expressly disclaimed any warranty or guarantee regarding construction
quality or full compliance beyond those inspections, and the contractor acknowledged
responsibility for compliance with applicable codes.
¶6 In July 2021, the Atkinsons observed cracking and other structural issues in the
residence. In late 2023 and early 2024, they obtained records revealing the existence of
the 2006 geotechnical report and earlier subdivision-related correspondence concerning
soil conditions.
¶7 On April 24, 2024, the Atkinsons filed a complaint against the City, alleging
negligence and negligent misrepresentation arising from the City’s issuance of a building
permit and failure to disclose known adverse soil conditions in the Ridgeview Trails Major
Subdivision. By agreement of the parties, the case proceeded directly to cross-motions for
summary judgment to resolve threshold legal issues before discovery.
¶8 Following briefing and oral argument, the District Court granted summary judgment
to the City, concluding that: (1) the claims were barred by the statute of repose, § 27-2-208,
3 MCA; (2) the City owed no duty to the Atkinsons; (3) the public duty doctrine barred the
claims and no special relationship existed; (4) the Atkinsons had disclaimed claims relating
to building permits and inspections; and (5) the geotechnical report was for the exclusive
use of the developer and its consultants. The Atkinsons timely appealed.
STANDARD OF REVIEW
¶9 We review a district court’s grant of summary judgment de novo, applying the same
criteria as the district court under M. R. Civ. P. 56. McClue v. Safeco Ins. Co., 2015 MT
222, ¶ 8, 380 Mont. 204, 354 P.3d 604. Questions of statutory interpretation and the
application of a statute of repose are questions of law reviewed for correctness. Hein v.
Sott, 2015 MT 196, ¶¶ 7, 9, 380 Mont. 85, 353 P.3d 494.
DISCUSSION
¶10 Whether the District Court erred when it held that the statute of repose found in § 27-2-208, MCA (2023), barred the Atkinsons’ claims against the City for negligence and negligent misrepresentation.
¶11 Section 27-2-208(1), MCA, provides that, except as otherwise specified, an action
for damages “resulting from or arising out of the design, planning, supervision, inspection,
construction, or observation of construction of any improvement to real property . . . may
not be commenced more than 10 years after completion of the improvement.” Montana
law characterizes this statute as a substantive grant of immunity that extinguishes liability
once the repose period expires. Hein, ¶ 11; Ass’n of Unit Owners of Deer Lodge Condo.
v. Big Sky of Mont., Inc., 245 Mont. 64, 79-81, 798 P.2d 1018, 1027-28 (1990).
¶12 The Atkinsons claim negligence and negligent misrepresentation, contending the
City had a duty to disclose to them its knowledge of expansive and collapsible soils
4 throughout the Ridgeview Trails Major Subdivision when it approved them to build in the
subdivision. However, whatever knowledge the City had about the property at that time
resulted or arose out of the planning and inspection the City undertook, all of which is
governed by § 27-2-208, MCA. Here, the Atkinsons’ claims seek recovery for damage to
their residence allegedly resulting from the City’s permitting and inspection activities and
its issuance of a statement of substantial completion. In determining the application of the
statute of repose, we look to the gravamen of the claim rather than the label attached. See
Tin Cup Cnty. Water v. Garden City Plumbing & Heating, Inc., 2008 MT 434, ¶ 25,
347 Mont. 468, 200 P.3d 60. Claims styled as negligence and negligent misrepresentation
do not avoid the repose when they arise out of construction-related governmental functions.
The City’s activities here fall squarely within the statutory language encompassing
“planning” and “inspection” related to improvements to real property. Although the parties
agreed before the District Court that the alleged wrongful conduct occurred when the City
issued its building permit on November 16, 2012, the residence was substantially
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02/10/2026
DA 25-0285 Case Number: DA 25-0285
IN THE SUPREME COURT OF THE STATE OF MONTANA
2026 MT 21
CHRISTOPHER B. ATKINSON and JENNIFER E. ATKINSON,
Plaintiffs and Appellants,
v.
CITY OF LIVINGSTON, a political subdivision,
Defendant and Appellee.
APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DV-34-2024-71-NE Honorable Brenda R. Gilbert, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Brian J. Miller, Morrison, Sherwood, Wilson, and Deola PLLP, Helena, Montana
For Appellee:
Brian L. Taylor, Ryan C. Addis, Greyson D. Hill, Taylor Nicastro Browne LLC, Billings, Montana
Submitted on Briefs: January 7, 2026
Decided: February 10, 2026
Filed:
__________________________________________ Clerk Justice Katherine Bidegaray delivered the Opinion of the Court.
¶1 Christopher and Jennifer Atkinson (the Atkinsons) appeal from the District Court’s
order granting summary judgment to the City of Livingston (the City) on their claims for
negligence and negligent misrepresentation. We address the following restated issue:
Whether the District Court erred when it held that the statute of repose found in § 27-2-208, MCA (2023), barred the Atkinsons’ claims against the City for negligence and negligent misrepresentation.
Because the claims are barred by the statute of repose set forth in § 27-2-208, MCA (2023),1
we affirm and do not reach the remaining issues raised on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In 2005 and 2006, the City approved the Ridgeview Trails Major Subdivision
following conditional preliminary plat approval and final plat approval. In March 2006,
SK Geotechnical prepared, for the subdivision developers and their consultants, a
geotechnical evaluation identifying expansive and collapsible soils. The report was not
prepared for the City and was not incorporated into the subdivision approval conditions.
¶3 The developer conveyed Lot 29 of the subdivision to Thomas and Niam Moody in
2006. In April 2012, the Moodys sold Lot 29 to the Atkinsons. The geotechnical report
was not provided to the Atkinsons at the time of purchase.
¶4 On November 16, 2012, the Atkinsons’ contractor applied for and received a
building permit from the City to construct a single-family residence on Lot 29. The permit
stated that the applicant and owner were responsible for compliance with applicable
1 All references to § 27-2-208, MCA, herein are to the 2023 version of the statute. 2 building codes and ordinances. The parties agreed, before the District Court, that the
conduct complained of in the action—the City’s issuance of the building permit without
disclosing the geotechnical report or requiring execution of an acknowledgment
agreement—occurred on November 16, 2012.
¶5 The City conducted the inspections required by the adopted building codes during
construction. On June 21, 2013, the City issued a Statement of Substantial Completion,
certifying that it had performed the required inspections and that, based on those limited
inspections, the residence substantially complied with minimum inspection requirements.
The statement expressly disclaimed any warranty or guarantee regarding construction
quality or full compliance beyond those inspections, and the contractor acknowledged
responsibility for compliance with applicable codes.
¶6 In July 2021, the Atkinsons observed cracking and other structural issues in the
residence. In late 2023 and early 2024, they obtained records revealing the existence of
the 2006 geotechnical report and earlier subdivision-related correspondence concerning
soil conditions.
¶7 On April 24, 2024, the Atkinsons filed a complaint against the City, alleging
negligence and negligent misrepresentation arising from the City’s issuance of a building
permit and failure to disclose known adverse soil conditions in the Ridgeview Trails Major
Subdivision. By agreement of the parties, the case proceeded directly to cross-motions for
summary judgment to resolve threshold legal issues before discovery.
¶8 Following briefing and oral argument, the District Court granted summary judgment
to the City, concluding that: (1) the claims were barred by the statute of repose, § 27-2-208,
3 MCA; (2) the City owed no duty to the Atkinsons; (3) the public duty doctrine barred the
claims and no special relationship existed; (4) the Atkinsons had disclaimed claims relating
to building permits and inspections; and (5) the geotechnical report was for the exclusive
use of the developer and its consultants. The Atkinsons timely appealed.
STANDARD OF REVIEW
¶9 We review a district court’s grant of summary judgment de novo, applying the same
criteria as the district court under M. R. Civ. P. 56. McClue v. Safeco Ins. Co., 2015 MT
222, ¶ 8, 380 Mont. 204, 354 P.3d 604. Questions of statutory interpretation and the
application of a statute of repose are questions of law reviewed for correctness. Hein v.
Sott, 2015 MT 196, ¶¶ 7, 9, 380 Mont. 85, 353 P.3d 494.
DISCUSSION
¶10 Whether the District Court erred when it held that the statute of repose found in § 27-2-208, MCA (2023), barred the Atkinsons’ claims against the City for negligence and negligent misrepresentation.
¶11 Section 27-2-208(1), MCA, provides that, except as otherwise specified, an action
for damages “resulting from or arising out of the design, planning, supervision, inspection,
construction, or observation of construction of any improvement to real property . . . may
not be commenced more than 10 years after completion of the improvement.” Montana
law characterizes this statute as a substantive grant of immunity that extinguishes liability
once the repose period expires. Hein, ¶ 11; Ass’n of Unit Owners of Deer Lodge Condo.
v. Big Sky of Mont., Inc., 245 Mont. 64, 79-81, 798 P.2d 1018, 1027-28 (1990).
¶12 The Atkinsons claim negligence and negligent misrepresentation, contending the
City had a duty to disclose to them its knowledge of expansive and collapsible soils
4 throughout the Ridgeview Trails Major Subdivision when it approved them to build in the
subdivision. However, whatever knowledge the City had about the property at that time
resulted or arose out of the planning and inspection the City undertook, all of which is
governed by § 27-2-208, MCA. Here, the Atkinsons’ claims seek recovery for damage to
their residence allegedly resulting from the City’s permitting and inspection activities and
its issuance of a statement of substantial completion. In determining the application of the
statute of repose, we look to the gravamen of the claim rather than the label attached. See
Tin Cup Cnty. Water v. Garden City Plumbing & Heating, Inc., 2008 MT 434, ¶ 25,
347 Mont. 468, 200 P.3d 60. Claims styled as negligence and negligent misrepresentation
do not avoid the repose when they arise out of construction-related governmental functions.
The City’s activities here fall squarely within the statutory language encompassing
“planning” and “inspection” related to improvements to real property. Although the parties
agreed before the District Court that the alleged wrongful conduct occurred when the City
issued its building permit on November 16, 2012, the residence was substantially
completed on June 21, 2013, when the City issued its Statement of Substantial Completion,
triggering the repose period. See § 27-2-208(4)(a), MCA. The Atkinsons did not file suit
until April 2024—well beyond the ten-year repose period.
¶13 The Atkinsons argue that § 27-2-208, MCA, does not apply to municipalities
because the Legislature intended to protect only private actors. We disagree. The statute
contains no municipal exemption. To the contrary, the Legislature expressly included
“planning” and “inspection” among the covered activities. Where statutory language is
clear and unambiguous, courts may not insert limitations or exclusions that the Legislature
5 chose not to include. Section 1-2-101, MCA; City of Missoula v. Pope, 2021 MT 4,
¶¶ 9-10, 402 Mont. 416, 478 P.3d 815. The Atkinsons argue that legislative history
demonstrates the Legislature intended § 27-2-208, MCA, to protect only private
construction professionals and not municipalities, but legislative history cannot be used to
override the plain language of an unambiguous statute. Pope, ¶ 10 (“we first examine the
plain language of the statute” and “when that language is ambiguous or subject to more
than one reasonable interpretation, our interpretation is aided by legislative history” (citing
State v. Legg, 2004 MT 26, ¶ 27, 319 Mont. 362, 84 P.3d 648)).
¶14 Additionally, none of the exceptions to § 27-2-208(1), MCA, applies. The
Atkinsons’ claims are not founded upon an instrument in writing, as neither the building
permit, the International Residential Code, nor any subdivision-related document created
a written obligation running from the City to the Atkinsons. Section 27-2-208(2), MCA,
likewise does not apply. For purposes of the statute, the Legislature defined “completion”
as “that degree of completion at which the owner can utilize the improvement for the
purpose for which it was intended or when a completion certificate is executed, whichever
is earlier.” Section 27-2-208(4)(a), MCA. Because the City issued its Statement of
Substantial Completion on June 21, 2013, and the Atkinsons first observed cracking and
structural issues in 2021, the alleged injury did not occur during the tenth year following
completion of the improvement as subsection (2) requires. Section 27-2-208(3), MCA,
also does not apply because the City was not an owner, tenant, or person in actual
possession and control of the improvement at the time any right of action arose.
6 ¶15 Because § 27-2-208, MCA, extinguishes the Atkinsons’ causes of action as a matter
of law, the Court lacks authority to grant relief on any alternative theory. We therefore
need not address the remaining arguments concerning duty, the public duty doctrine,
disclaimer language, or subdivision review obligations.
CONCLUSION
¶16 The District Court correctly concluded that the Atkinsons’ claims are barred by the
statute of repose. The judgment is affirmed.
/S/ KATHERINE M. BIDEGARAY
We Concur:
/S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ INGRID GUSTAFSON /S/ JIM RICE