PIONEER HOMESTEAD APARTMENTS III, a Wyoming limited partnership, and PIONEER HOMESTEAD, a Wyoming non-profit corporation, Appellants (Plaintiffs),
SARGENT ENGINEERS, INC., a Washington corporation, and KARI J. MOULTON P.E., Appellees (Defendants).
from the District Court of Teton County The Honorable Marvin
L. Tyler, Judge
Representing Appellants: Mark D. Sullivan, Mark D. Sullivan,
P.C., Wilson, Wyoming
Representing Appellees: Ryan Schwartz of Williams, Porter,
Day & Neville, P.C., Casper, Wyoming
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.
Pioneer Homestead (Pioneer) is a non-profit corporation that
operates low-income housing for senior citizens and persons
with disabilities in Teton County. In 2005, Pioneer completed
construction of its third apartment building, Pioneer
Homestead III (PH III), and in 2013, it learned of a binding
door and plaster cracks in a PH III unit. Upon investigation,
Pioneer found numerous design deficiencies in the PH III
plans, as well as deviations from those plans in the
In 2015, Pioneer sued Sargent Engineers, Inc. (Sargent) for
professional negligence in the structural engineering
services it provided during the design phase of PH III's
construction, and Zeist Construction Management, LLC (ZCM)
for breach of contract. Sargent moved for summary judgment,
asserting that Pioneer's claims against it were
time-barred, and the district court granted that motion. We
find that disputed issues of material fact exist with respect
to when Pioneer reasonably should have discovered
Sargent's alleged negligence, and we therefore reverse.
Pioneer presents a single issue for our review, which we
Were there disputed issues of fact that precluded the
district court from ruling that Pioneer's claims were
time-barred as a matter of law?
Pioneer operates Teton County's only low-income housing
development. Its complex consists of three apartment
buildings that offer seventy-eight one-and-two-bedroom
independent-living apartments. PH III has twenty-five units,
and is Pioneer's most recently constructed building.
The construction of PH III began in April 2004 when Pioneer
entered into a design/build contract with Idaho-based
Superior Modular Systems (SMS). Pursuant to that contract,
SMS was to supply modular units that were constructed
off-site, deliver them to the PH III building site, and put
them together there. Pioneer separately contracted with ZCM
to manage the PH III project, and SMS separately contracted
with Sargent to provide the required structural engineering
plans and specifications for the project.
On June 1, 2004, Sargent issued a stamped set of plans and
specifications for the PH III project. The project then
proceeded, and on August 15, 2005, after construction was
completed, a certificate of occupancy was issued for the
building. Pioneer then began accepting residents for the
twenty-five PH III units.
Pioneer encountered issues with PH III at three different
times after it was occupied. The first of the concerns
occurred in 2006, when residents of PH III noticed noises
coming from the attic and wall spaces in the building.
Pioneer investigated and found that birds were getting into
the building through a vent that, due to an installation
error, was stuck in an open position that allowed birds to
enter that space. The vent was repaired, and birds were not
thereafter able to enter the attic.
The next concern was encountered in 2007. In the summer of
that year, Pioneer's property managers noticed some
concrete cracking underneath a steel support beam in a
covered parking area on the property's north side. Upon
learning of the cracking, Pioneer notified SMS, which then
notified Sargent. It was ultimately determined that the steel
beam in question was improperly attached to the concrete in a
manner that failed to account for the expansion and
contraction that would occur with temperature fluctuations.
When the beam expanded and contracted, it caused the concrete
to crack and weakened its load-bearing capacity.
Sargent examined the defect, and on October 23, 2007, sent a
letter to Pioneer explaining its observations and offering a
solution for the problem. In response, Pioneer retained
another engineer, F. Richard Scheerer of G & S Structural
Engineers, to review Sargent's proposed solution. Mr.
Scheerer visited the apartment building, observed the
problem, reviewed Sargent's proposal, and agreed that
Sargent's solution was an "appropriate fix."
Pioneer then made Sargent's recommended repair.
The final and most recent issue with PH III, which led to the
present dispute, arose in the late spring of 2013 when
Pioneer received a complaint from a PH III resident in Unit
210. The resident reported a gap in a corner of that
unit's drywall that was large enough to pass fingers
through, and a sticking door. In response, Pioneer retained
Y2 Consultants, Inc. (Y2), an engineering firm, to inspect
the unit and determine the cause of those problems. Y2
performed a site visit on June 4, 2013, and reviewed the
plans and specifications and performed its own calculations.
On July 16, 2013, Y2 provided a written report of its
findings, which were that there were significant design flaws
in the plans and specifications for PH III, and defects in
On April 7, 2015, Pioneer filed a complaint against ZCG and
Sargent. The complaint asserted a claim for breach
of contract against ZCG and a claim of professional
negligence against Sargent. As to the claim against Sargent,
the complaint alleged:
26. Defendants Sargent Engineers, Inc. and Kari Moulton
breached their duties in numerous respects including, without
a) Failing to design a properly sized glue laminated beam at
the north carport entrance; b) Failing to specify proper
connections of the glue laminated beam;
c) Including a roof truss design with an inadequate snow load
d) Failing to specify proper and workable lateral connections
between each modular unit;
e) Failing to calculate proper dead weight loads for the
north wall of the structure; and
f) Failing to design a proper or adequate seismic and wind
resistance system for the structure.
27. As a result of the negligence of Defendants Sargent
Engineers, Inc. and Kari Moulton the Pioneer Homestead III
building was damaged by buckling floors in some units,
cracked interior sheetrock at some locations, shifting door
frames throughout, and shifting unit walls along hallways.
On July 8, 2016, Sargent filed a motion for summary judgment,
contending that Pioneer's claims against it were barred
by the two-year statute of limitations applicable to claims
for professional errors and omissions. Pioneer opposed
Sargent's motion with affidavits by Harry Lawroski, the
Pioneer board member who oversaw the PH III project, and
Jeffrey Hobson, the Y2 structural engineer who evaluated the
PH III plans and specifications. Based on those affidavits,
Pioneer argued that questions of disputed fact concerning
whether Sargent's negligence was reasonably discoverable
within the two-year period of limitations precluded summary
On December 12, 2016, the district court issued its summary
judgment ruling, which granted Sargent's motion. The
court did not specifically discuss Pioneer's supporting
affidavits, but concluded:
For an extension of the two-year limitation to apply under
Wyo. Stat. Ann. § 1-3-107(a)(i), the Plaintiffs have the
burden of establishing either that the alleged act, error or
omission was not reasonably discoverable within a two (2)
year period; or that the claimant failed to discover the
alleged act, error or omission within the two (2) year period
despite the exercise of due diligence. Wyo. Stat. Ann. §
1-3-107(a)(i)(A) and (B). In this case, the Plaintiffs have
not provided any admissible evidence showing that either of
the exceptions under Wyo. Stat. Ann. § 1-3-107(a)(i)
applies to the claims asserted against Defendants Sargent and
Moulton in this case. The licensed or certified professional
services (e.g., the plans and specifications)
provided by Defendants Sargent and Moulton were completed and
available to Plaintiffs as of June 4, 2004. The Court finds
and concludes as a matter of law that the claims asserted by
the Plaintiffs against Defendants Sargent and Moulton are
barred by the statute of limitations.
On January 18, 2017, the district court issued a final order
granting summary judgment to Sargent. Pioneer thereafter filed a
timely notice of appeal to this Court.