Scott v. Improvement

• Decision Date: 18 March 2010
• Docket Number: No. S-08-0169.,S-08-0169.
• Parties: Scott and Connie HEIMER, Appellants (Plaintiffs), v. ANTELOPE VALLEY IMPROVEMENT and Service District, Appellee (Defendant).
• Court: Wyoming Supreme Court

226 P.3d 860

2010 WY 29

Scott and Connie HEIMER, Appellants (Plaintiffs), v. ANTELOPE VALLEY IMPROVEMENT and Service District, Appellee (Defendant).

No. S-08-0169.

Supreme Court of Wyoming.

March 18, 2010.

Representing Appellant: Tom C. Toner and Kendal R. Hoopes of Yonkee & Toner, LLP, Sheridan, Wyoming. Argument by Mr. Toner.

Representing Appellee: Rick L. Koehmstedt of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming.

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

KITE, Justice.

[¶ 1] Scott and Connie Heimer claim a water main maintained by the Antelope Valley Improvement and Service District (the District) leaked for several years causing damage to their Campbell County residence. In 2004, the water main broke, allegedly causing additional damage to the Heimers' property. The Heimers filed a governmental claim against the District and subsequently brought suit in district court. The District moved for summary judgment, arguing that the Heimers' action was barred because they failed to file their governmental claim within the statutory time limit. The district court granted summary judgment in favor of the District, and the Heimers appealed. We conclude there are material issues of fact as to when the Heimers discovered or should have discovered the District's act, error or omission with respect to the water leak and as to whether the water main break was a separate incident. Consequently, we reverse and remand.

ISSUES

[¶ 2] The Heimers present two issues:

1. Is there a genuine issue of material fact concerning whether Heimers' claims were timely under Wyo. Stat. Ann. § 1-39-113(a) when Heimers did not discover what was causing the subsidence to their property, despite diligent efforts to do so, until November 19, 2004?

2. Were the Heimers' claims for damages resulting from the total separation of the District's water main occurring on November 30, 2004, which was a separate incident of negligence, timely under Wyo. Stat. Ann. § 1-39-113(a)?

Although phrased more generally, the District states a similar issue.

FACTS

[¶ 3] Because we are reviewing a summary judgment, we state the facts in the light most favorable to the non-movants, the Heimers. The Heimers bought their residence in 1999. In 2002, they began to notice cracks in the sheetrock and flooring of their home, but they did not know what was causing the damage. On February 7, 2002, the Heimers had the underground water and sewage pipes servicing their residence tested to see if fluid seepage from these lines was a possible cause of the problems. The results of the tests showed no leakage from those pipes.

[¶ 4] During 2002 and 2003, the residence continued to incur damage and it became apparent that the foundation was failing. In June 2004, the Heimers hired an engineering firm to determine the moisture contents of the soil on the lot. Testing of a single borehole revealed elevated moisture contents in the soil between five and fifteen feet below the surface. The final engineering report did not specify the source of the moisture in the soil or whether the elevated moisture levels were causing the subsidence problem.

[¶ 5] After receiving the engineering report, the Heimers began trying to determine the source of the excess moisture. They recognized one possible source was the District's water main that ran parallel to the street in front of their residence. In July 2004, the Heimers, through legal counsel, contacted the District by letter. They stated their home was experiencing severe subsidence problems and they were attempting to locate “a source, or sources, of water that may be contributing to their subsidence problem.” The Heimers requested permission to test the water main for leaks because they had “been advised to confirm that water is not leaking from your water system.”

[¶ 6] The District refused to allow the Heimers to test its water main, indicating that they had to rule out other possible causes of the subsidence before it would allow them to do so. Specifically, the District suggested the Heimers check for sources of surface water, elevated ground water levels, problems with their septic system, or settling of the home because it was constructed on fill dirt.

[¶ 7] Soon thereafter, the Heimers contacted the man who built their house and were informed that the residence was built on virgin land, not fill dirt. They were also informed no water or wet ground was discovered in any of the holes dug on the property during construction.

[¶ 8] On September 7, 2004, the Heimers sent another letter to the District. This letter informed the District that the original borehole testing revealed “a water source from the direction of [the District's] water system.” It also related the information gleaned from the builder. The letter further stated that the Heimers' “septic system is downhill from the water source and, in fact, is suffering from the same inundation of water as the house.” The Heimers asserted that they had diligently investigated their problem as objectively as possible and had come to the point where checking the District's water main for leaks was “a next logical step.” In a letter dated September 28, 2004, the District again denied the Heimers' request to test the main, insisting the Heimers had not “taken sufficient steps to eliminate other causes” of the subsidence.

[¶ 9] The Heimers then hired Western Water Consultants (WWC) to conduct sampling and borehole analysis in five additional locations on the property. WWC outlined its test results in a report dated November 19, 2004. The report stated that elevated soil moisture contents had been found in the holes close to the water main and between the water main and the Heimers' residence.

[¶ 10] On November 22, 2004, the Heimers again contacted the District, requesting permission to check the water main for leaks. On November 30, 2004, before the issue was addressed, the water main separated under the road running in front of the Heimers' residence and 90,000 gallons of water were released over a ten hour period. The Heimers stated this break in the water main caused flooding around their home and damage to their driveway.

[¶ 11] Over the next couple of years, the condition of the Heimers' residence further deteriorated and, even after the water main break was repaired, the soils around their home remained saturated with water. Finally, on October 19, 2006, the Heimers delivered their governmental claim, dated October 18, 2006, to the District. In the notice of claim they stated that by the summer of 2004, they were “suspicious of the District's water main as [a] possible cause of their problem.” Once they received the results of the testing by WWC in November 2004, they “had more than a strong suspicion that the cause of their home damage was a leak in the water main.”

[¶ 12] The Heimers filed the instant action against the District on October 30, 2006, alleging negligence, inverse condemnation, and fraud and requesting a permanent injunction and damages. The District answered generally and then moved for partial summary judgment, asserting the Heimers' action was barred because they had not presented their governmental claim within two years of the District's alleged wrongdoing as required by Wyo. Stat. Ann. § 1-39-113(a) (LexisNexis 2009).

[¶ 13] In response, the Heimers argued their claim was timely because the limitation period did not begin to run until they received the WWC report in November 2004. Mr. Heimer submitted an affidavit in response to the District's summary judgment motion. He averred that, after receiving the WWC report, he became “fairly certain the cause of my damage was from the District's water main....” The district court determined the Heimers' letter to the District dated September 7, 2004, revealed they had discovered their claim against the District. Consequently, the district court ruled that the Heimers' October 18, 2006, governmental claim was untimely and granted the District's motion for partial summary judgment.¹ The Heimers appealed.

STANDAR DOFREVIEW

[¶ 14] Our standard of review for summary judgments states:

On appeal, this Court evaluates the propriety of a district court's summary judgment ruling by examining the same materials and following the same standards as the district court. We examine the record de novo in the light most favorable to the party opposing the motion, giving that party the benefit of all favorable inferences which may be fairly drawn from the record. If upon review of the record, doubt exists about the presence of genuine issues of material fact, we resolve that doubt against the party seeking summary judgment. We review questions of law de novo without giving any deference to the district court's determinations. If we can uphold summary judgment on any proper legal basis appearing in the record, we will.

Wagner v. Reuter, 2009 WY 75, ¶ 11, 208 P.3d 1317, 1321-22 (Wyo.2009) (internal citations omitted). See also, Cheek v. Jackson Wax Museum, Inc., 2009 WY 151, ¶ 12, 220 P.3d 1288, 1290 (Wyo.2009).

DISCUSSION

[¶ 15] The District is a governmental entity. Although governmental entities are traditionally immune from suit under the doctrine of sovereign immunity, the Wyoming legislature recognized “the inherently unfair and inequitable results which occur in the strict application of governmental immunity” and enacted the Wyoming Governmental Claims Act, Wyo. Stat. Ann. §§ 1-39-101 through 1-39-121 (LexisNexis 2009). Section 1-39-102(a). Among the provisions included in the Wyoming Governmental Claims Act is the procedure to be followed in pursuing a claim against a governmental entity. Section 1-39-113. Strict adherence to this procedure is required. Bell v. Schell, 2004 WY 153, ¶ 10, 101 P.3d 465, 468 (Wyo.2004); Beaulieu v. Florquist, 2001 WY 33, ¶¶ 17-18, 20 P.3d 521, 527 (Wyo.2001); and Wyo. Const. Art. 16, § 7...