Norbeck v. Flathead Cnty.

2019 MT 84, 438 P.3d 811, 395 Mont. 294
CourtMontana Supreme Court
DecidedApril 9, 2019
DocketDA 18-0117
StatusPublished
Cited by9 cases

This text of 2019 MT 84 (Norbeck v. Flathead Cnty.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Norbeck v. Flathead Cnty., 2019 MT 84, 438 P.3d 811, 395 Mont. 294 (Mo. 2019).

Opinion

Justice Ingrid Gustafson delivered the Opinion of the Court.

***296¶1 Appellants Amber Norbeck and Andrew Norbeck (Norbecks) appeal the Eleventh District Court's orders granting summary ***297judgment to the State of Montana Department of Environmental Quality (DEQ), Birk Engineering and Bret A. Birk (Birks), and Flathead County (Flathead), respectively issued December 18, 2017, December 22, 2017, and March 23, 2018. We affirm.

¶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 *815experienced various issues related to the Property. By no later than November 1, 2009, Norbecks' contractor, Jesse Lee (Lee), knew there was no water to the home and the Subdivision pump house had not ***298been completed. Upon completion of the home, Lee informed Flathead the home had no water and Koenig had not completed his SIA improvement work. He was advised to contact the County Commissioners' office and have the SIA placed on the discussion agenda. Neither Lee nor the Norbecks ever followed up on this request. The Norbecks moved into the home before the wells were connected to the Subdivision water system and lived without water for three weeks. When the wells were connected to the Subdivision water system, the Norbecks' water line broke causing flooding in and around their home. It took a week for Sandry Construction to fix this problem. Norbecks then observed Sandry Construction fixing leaks in the water mains, installing a main water line to the well house, and fixing other leaks throughout the Subdivision. Over the next several months to a year, Norbecks continued to have issues with water, both as to quality and quantity. Until their appliances began to fail, Norbecks "simply lived with the situation[,] as it was bearable and appeared to be resolving itself." On March 11, 2010, two months after the Norbecks moved into their home, they had their water tested. Montana Environmental Lab found the turbidity was "15 ? mud" indicating significant mud to be present in Norbecks' water. In the summer of 2011, Norbecks experienced additional water issues when they turned on their water for their new sprinkler system and there was no pressure to run it and they had to seek assistance from the developer to obtain water pressure for the system.

¶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 ***299William Koenig, Karen Koenig, Flathead, DEQ, Birks, Fidelity, and Glacier Real Estate (Glacier). Norbecks' Complaint, in relevant part, asserted violations of § 30-14-103, MCA, the Montana Unfair Trade Practices and Consumer Protection Act (MUTPA) (Count 1); negligence (Count 2); negligent misrepresentation (Count 4); continuing nuisance (Count 5); and constructive fraud (Count 6), as well as a claim for punitive damages. With the exception of Count 3, which was directed specifically at Glacier, Norbecks' claims are pleaded generally and collectively against all Defendants.

¶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, *816and, as such, Norbecks' tort claims were barred by applicable statutes of limitation.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hughes v. Anderson
2024 MT 325N (Montana Supreme Court, 2024)
Granite County v. Rising Sun
2022 MT 108N (Montana Supreme Court, 2022)
McAtee v. Morrison & Frampton
2021 MT 227 (Montana Supreme Court, 2021)
Watchtower v. 20th Judicial District
2021 MT 13 (Montana Supreme Court, 2021)
Abraham v. Hull & Swingley
2020 MT 254N (Montana Supreme Court, 2020)
Gunderson v. Liberty Mutual
2020 MT 197N (Montana Supreme Court, 2020)
Raugust v. Abbey
D. Montana, 2020

Cite This Page — Counsel Stack

Bluebook (online)
2019 MT 84, 438 P.3d 811, 395 Mont. 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norbeck-v-flathead-cnty-mont-2019.