Supreme Court of North Dakota

Case no.: 20260004
Date filed: August 20, 2026

The North Dakota Supreme Court has ruled that a statutory limitation period for filing suit was not extended by a contractor's explanation of the problem. Nor was the period extended by continued work on the project after the problem was discovered.

Burleigh County and Morton County awarded a contract to Comstock Construction Inc. for the construction of the Burleigh Morton Detention Center. The architect of record was Venture Architects LLC. Venture’s responsibilities included specification and approval of all materials. Comstock subcontracted the interior painting, finishing, and epoxy coatings to Oxentenko Inc.

Representatives of the two counties conducted a walk-through of the partially completed project on February 2, 2017. They observed that the paint on a metal bunk bed looked odd. They could grab the edge of the paint and peel it off like cellophane. This exposed raw metal with no primer indication.

The next day, the county representatives contacted Oxentenko's owner. She explained that the paint had not yet cured. They understood this to mean that it just needed more time. Oxentenko continued interior painting and finishing work until May 2017. A certificate of occupancy for the facility was issued in June 2017.

Over the next couple of years, the counties sent a series of emails to Comstock and Venture complaining of the “very poor” interior painting for which no party would take responsibility. One email said, “The issue of poor quality paint was identified in the first quarter of 2017, when the first inmate beds were being installed.”

The counties eventually filed suit against Comstock Construction, Venture Architects, Oxentenko, and the Sherwin-Williams Company (the paint supplier). The summons and complaint were dated February 10, 2023, although Venture was not actually served with the complaint until the next month.

All claims against the contractor, subcontractor, and supplier were resolved by settlement, leaving Venture Architects as the sole defendant. The Burleigh County District Court issued summary judgment in favor of Venture. The claims against the architect were barred by a two-year statute of limitations for professional negligence and a six-year statute of limitations for breach-of-contract claims.

The counties appealed, contending that their breach-of-contract action against Venture was not barred because the claim accrued less than six years before filing suit. The counties could not have discovered the problem on February 2, 2017, because the painting subcontractor had given them a plausible explanation that there was no problem. And there had been new or ongoing breaches until the painting was completed in May 2017.

The Supreme Court of North Dakota acknowledged that the project owners may have received a plausible explanation from the paint applicator for the paint itself. But that explanation did not address the observed absence of primer. While that may not have alerted the counties to a defective specification, a project owner need not know the precise cause or the responsible party in order to be placed on notice of a potential claim.

“A person who peels paint off metal like ‘cellophane,’ observes no primer, notifies both the applicator and the architect, and predicts an ‘ongoing problem’ has clear, objective notice. . . . The [subcontractor’s] explanation addressed the curing of the paint but not the absence of primer.”

The court also rejected the argument that the continued painting through May 2017 constituted new breaches by the architect, which created new causes of action with later accrual dates.

“The continuing painting from February through May 2017 caused additional damage from the same specification error, but it did not constitute a new breach under that claim. A claim does not accrue upon the last of its damages. . . . The continued painting from February through May enlarged the damages flowing from the specification error; it did not create a new claim or a new accrual date.”

In affirming summary judgment against the project owners, the court said that because the claim was barred by the six-year statute of limitations, the longest applicable statute of limitations, there was no need to address the shorter period applicable to professional negligence.

When a project owner discovers a problem with the work, a prompt, thorough investigation to determine the cause and responsibility is always advisable.

Participants:
For the counties: Lawrence E. King; Bismarck, North Dakota
For Venture Architects: Mark R. Western; Fargo, North Dakota
Before: Judges Fair McEvers, Tufte, Jensen, Bahr, and Herauf
Opinion by: Judge Tufte
Outcome: Summary judgment in favor of the architect affirmed

Source: Please click here to read the complete opinion.