Background
Burleigh and Morton Counties jointly own the Burleigh Morton Detention Center in Bismarck. They retained Venture Architects, LLC, as architect of record for the project. Venture was responsible for project specifications and approval of materials, including paint products. Comstock Construction was the general contractor, and Oxentenko performed painting and coating work.
During a February 2, 2017 walk-through, the detention center’s assistant jail administrator observed paint peeling from a metal bunk like cellophane, exposing raw metal with no visible primer. The next day, he notified Venture and others that the condition could become an ongoing problem. Paint failures continued, and the Counties sued Venture and other parties in 2023. After the other defendants settled, the district court granted summary judgment to Venture, holding the Counties’ contract claim untimely under the six-year limitations period.
The Court’s Holding
The North Dakota Supreme Court affirmed. Applying the six-year limitations period for contract claims and the discovery rule, it held that the Counties’ claim accrued on February 2, 2017. The undisputed evidence of visibly peeling paint, exposed raw metal, the absence of visible primer, and the Counties’ immediate notice to Venture gave a reasonable person objective notice of a potential claim and triggered a duty to investigate.
The court rejected the Counties’ contention that they needed to know Venture’s precise specification error before the limitations period began. The discovery rule requires inquiry notice of a potential wrongful act and injury, not full knowledge of the defect’s extent or identification of the ultimately responsible party. Continued painting after February 2017 enlarged damages from the alleged specification error but did not create a new claim or postpone accrual. The court also declined to consider an alleged ongoing duty to monitor because it was inadequately briefed, and it held that equitable estoppel was not preserved for appeal.
Key Takeaways
- Physical evidence of a construction defect can provide inquiry notice even before the full cause of the defect is known.
- A plaintiff cannot delay accrual until it receives professional confirmation or identifies a defendant’s specific wrongful act.
- Later damages from the same alleged specification error do not restart the limitations period.
Why It Matters
The decision underscores that owners confronting visible construction defects should promptly investigate potential claims. Under North Dakota’s objective discovery rule, early evidence of failure may start the clock even when the project remains ongoing and competing explanations for the defect exist.
It also reinforces appellate preservation rules: theories concerning continuing duties and equitable estoppel must be timely raised and adequately supported in the trial court and appellate briefing.