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Adelizzi v. Stratton

November 17, 2010

CRAIG E. ADELIZZI AND BETSY ADELIZZI, HUSBAND AND WIFE, APPELLANTS (PLAINTIFFS),
v.
ROGER FRED STRATTON, D/B/A STRATTON REAL ESTATE; MARY MCGILL, INDIVIDUALLY AND AS AN AGENT FOR STRATTON REAL ESTATE, APPELLEES (DEFENDANTS).



Appeal from the District Court of Natrona County. The Honorable David B. Park, Judge.

The opinion of the court was delivered by: Voigt, Justice

Before KITE, C.J., and GOLDEN, HILL, VOIGT*fn1, and BURKE, JJ.

[¶1] This is an appeal from a summary judgment granted by the district court in favor of a real estate agent and broker who were sued by former clients for professional negligence. We affirm because there are no genuine issues of material fact, and the appellees are entitled to judgment as a matter of law.

ISSUES

[¶2] 1. When did the limitation period for professional negligence begin to run under Wyo. Stat. Ann. § 1-3-107 (LexisNexis 2009)?

2. Did the district court correctly conclude that neither exception to the commencement of the limitation period found in Wyo. Stat. Ann. § 1-3-107(a)(i) is applicable given the undisputed facts of this case?

FACTS

[¶3] On April 8, 2006, the appellants (the Adelizzis) hired the appellees (McGill and Stratton) to act as their agent and broker in the purchase of a house from Victoria Lockard (Lockard). McGill had shown the house to the Adelizzis several times in the preceding months. Lockard and the Adelizzis closed the purchase-and-sale on June 1, 2006, and the Adelizzis moved into the house.

[¶4] Prior to this transaction, the house had suffered at least three basement flooding incidents: a sprinkler line break on October 15, 2001, a snow melt on March 22, 2003, and a rain storm on August 4-5, 2005. In mid-June 2006, the Adelizzis called McGill to tell her water was coming up in a basement floor drain. After contacting Lockard, McGill returned the Adelizzis' call and told them to contact Huber Plumbing and Heating, which they did, and the problem was fixed.

[¶5] On April 1-2, 2007, the Adelizzis experienced a "big flood" in their basement. A company named SERVPRO cleaned up the basement and during the clean-up, one of the company's servicemen told the Adelizzis that the house was frequently flooded. After obtaining engineering and contracting estimates for remediation purposes, the Adelizzis contacted an attorney. On May 8, 2007, the attorney sent a letter to Lockard and to Raylene Rowe (Rowe), Lockard's real estate agent in the sale of the house, alleging failure to disclose the water problems and asking Lockard and Rowe to take the necessary steps to fix the problem rather than face a lawsuit.

[¶6] On August 1, 2007, water seeped through the house's foundation into the basement. On August 18, 2007, water came through the window wells into the basement.

Contractors then spent about two months performing engineer-designed remediation on the house, for which the Adelizzis paid $25,260.52.*fn2

[¶7] On September 24, 2007, the Adelizzis filed a complaint against Lockard, Rowe, and Rowe's agency, Home Access Realty, LLC (Home Access). Discovery and other pre-trial matters took place over the next 14 months, with no party deposing or contacting McGill. Finally, on November 7, 2008, Home Access's attorney listed McGill as a witness and supplied her affidavit setting forth her anticipated testimony. The Adelizzis were then allowed to amend their complaint, adding McGill and Stratton as defendants, with the gravamen of the amendment being the accusation that McGill negligently and intentionally failed to disclose to the Adelizzis the flooding that had occurred in August 2005. The Amended Complaint was filed on January 12, 2009.

[¶8] McGill and Stratton moved for summary judgment on the ground that the Adelizzis' lawsuit was barred by the applicable statute of limitations for professional negligence, that being Wyo. Stat. Ann. § 1-3-107(a). Specifically, McGill and Stratton stated the controlling issue as being whether the two-year period of limitations began to run on June 1, 2006, which was the last date of any possible act, error or omission by McGill, or on April 2, 2007, when the Adelizzis suffered flooding and learned of the 2003 and 2005 flood incidents. The district court granted the motion for summary judgment on the ground that the period of ...


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