AMBER OLIVIA NORBECK and ANDREW PETER NELS NORBECK, Plaintiffs and Appellants,
FLATHEAD COUNTY, a political subdivision of the State of Montana; THE STATE OF MONTANA (Department of Environmental Quality); BIRK ENGINEERING AND CONSTRUCTION, INC.; and BRET A. BIRK, Defendants and Appellees.
Submitted on Briefs: December 12, 2018
FROM: District Court of the Eleventh Judicial District, In
and For the County of Flathead, Cause No. DV14-1208D
Honorable Dan Wilson, Presiding Judge
Appellants: W. Wayne Harper, Harper Law Firm, Butte, Montana
Appellees: Jeffrey M. Doud, Agency Legal Services Bureau,
Helena, Montana (for Department of Environmental Quality),
Sarah D. Simkins, Johnson, Berg & Saxby, PLLP, Kalispell,
Montana (for Birk Engineering & Construction and Bret A.
Birk), Gregory L. Bonilla, MACo Defense Services, Helena,
Montana (for Flathead County)
Appellants Amber Norbeck and Andrew Norbeck (Norbecks) appeal
the Eleventh District Court's orders granting summary
judgment 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.
We restate the issue on appeal as follows:
Did the District Court err in granting DEQ, Birks, and
Flathead's motions for summary judgment?
AND PROCEDURAL BACKGROUND
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.
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 experienced 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 been
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.
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 William 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.
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.
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, and, as
such, Norbecks' tort claims were barred by applicable
statutes of limitation. Following hearing on September 19,
2017, where counsel for the Norbecks represented that he had
never received the summary judgment orders regarding either
Glacier or Fidelity, the District Court rescinded its order
granting Fidelity's motion for summary judgment and gave
Norbecks two weeks to respond to the motion. Norbecks did not
file a response and on October 24, 2017, ...