Good-Faith Repair Efforts and Ordinary Litigation Activity Do Not Forfeit or Estop a Builder’s Statute-of-Limitations Defense; Homeowner’s Early Written Suspicion Establishes Inquiry Notice

I. Introduction

In Hanson v. Dabbert Custom Homes 2026 ND 139, the North Dakota Supreme Court affirmed summary judgment for Dabbert Custom Homes, LLC (“Dabbert”), holding Jeremy Hanson’s (“Hanson”) claims for breach of warranty, breach of contract, and negligence were barred by the six-year statute of limitations in N.D.C.C. § 28-01-16(1).

The dispute arose from alleged construction defects in insulation and air-sealing in a newly constructed home. Hanson observed significant cold and frost conditions within months of moving in (early 2015) and, before the one-year warranty expired, emailed Dabbert on December 28, 2015 requesting an “[i]nsulation check—in upper north west corner house.” Dabbert and its subcontractor performed inspections and some remedial work (2016; again in 2019–2020), and Dabbert later proposed a draft settlement/release agreement (August 2020), which Hanson never signed. Hanson sued on July 5, 2022 after an independent inspection (February 2022) documented missing insulation, very low surface temperatures, and condensation-related damage.

The key issues were: (1) whether Dabbert waived or forfeited its statute-of-limitations defense by litigating for years and filing third-party claims; (2) when Hanson’s causes of action accrued under North Dakota’s discovery rule; and (3) whether equitable estoppel (including a “duty-to-disclose” variant) prevented Dabbert from asserting limitations due to post-warranty repair activity and communications.

II. Summary of the Opinion

  • No waiver: Dabbert preserved limitations by pleading it in the answer.
  • No forfeiture: Dabbert’s litigation conduct—conducting discovery, taking Hanson’s deposition, timely moving for summary judgment within the scheduling order, and filing a third-party complaint for contingent indemnity/contribution—was not “fundamentally inconsistent” with asserting limitations.
  • Accrual as a matter of law: The undisputed record established Hanson had inquiry notice no later than December 28, 2015; suit filed July 5, 2022 was outside six years.
  • No equitable estoppel: Good-faith repair efforts and settlement discussions did not objectively “lull” Hanson into delaying suit, and Hanson’s own testimony attributed delay to financial constraints rather than reliance on Dabbert.
  • No duty-to-disclose estoppel: Hanson failed to show Dabbert actually knew and suppressed a material fact uniquely within Dabbert’s knowledge through the limitations period; the builder-homebuyer relationship did not create the kind of confidential/fiduciary inequality needed for the doctrine.

III. Analysis

A. Precedents Cited (and Their Role)

1. Preservation of limitations defenses; waiver vs. forfeiture

  • Gustafson v. Poitra, 2008 ND 159, ¶ 7, 755 N.W.2d 479: Applied for the basic North Dakota rule that failing to plead statute of limitations can waive it; Dabbert pleaded it, so no waiver.
  • Murphy v. William Carey Univ., 382 So.3d 1181, 1188 (Miss. Ct. App. 2024) and Turner v. Cosmopolitan Nat'l Bank, 536 N.E.2d 806, 811 (Ill. App. Ct. 1989): Hanson cited these for a forfeiture-by-conduct theory. The Court distinguished them as factually and procedurally inapposite: Turner involved failure to plead limitations and extensive delay/continuances; Murphy involved nearly six years of litigation and an appeal before invoking limitations at summary judgment.

2. Summary judgment and accrual under the discovery rule

  • Simmons v. Cudd Pressure Control, Inc., 2022 ND 20, ¶ 8, 969 N.W.2d 442 and Johnston Law Off., P.C. v. Brakke, 2018 ND 247, ¶ 7, 919 N.W.2d 733: Supplied the summary-judgment framework (de novo review; no genuine issue of material fact; inferences from undisputed facts).
  • Larson v. Midland Hosp. Supply, Inc., 2016 ND 214, ¶ 11, 891 N.W.2d 364: Provided that when relevant facts are undisputed, accrual becomes a question of law; also reinforced the duty to investigate upon inquiry notice.
  • Hebron Pub. Sch. Dist. No. 13 of Morton Cnty. v. U.S. Gypsum Co., 475 N.W.2d 120, 126 (N.D. 1991): Anchored North Dakota’s use of the discovery rule for N.D.C.C. § 28-01-16(1).
  • Wells v. First Am. Bank W., 1999 ND 170, ¶ 10, 598 N.W.2d 834: Framed discovery rule accrual as when plaintiff knew or should have known of the wrongful act and resulting injury.
  • Riemers v. Omdahl, 2004 ND 188, ¶ 6, 687 N.W.2d 445: Emphasized the objective “reasonable person on notice of a potential claim” standard.
  • Solberg v. McKennett, 2021 ND 44, ¶ 8, 956 N.W.2d 767: Clarified that full knowledge of the extent of harm is unnecessary; awareness of injury is sufficient.
  • Froysland v. Altenburg, 439 N.W.2d 797, 799 (N.D. 1989): Key to the Court’s treatment of Hanson’s 2022 inspection—accrual cannot be postponed until attorney consultation or expert confirmation.
  • Larson v. Norkot Manufacturing, Inc., 2002 ND 175, 653 N.W.2d 33: Cited by Hanson for the general proposition that accrual is often fact-bound; the Court distinguished it because Hanson’s own documents removed genuine dispute.

3. Equitable estoppel against limitations

  • Muhammed v. Welch, 2004 ND 46, ¶ 25, 675 N.W.2d 402: Set de novo review when estoppel facts are undisputed and supplied modern framing of estoppel principles (including duty-to-disclose discussion later).
  • Burr v. Trinity Med. Ctr., 492 N.W.2d 904, 908 (N.D. 1992): Provided the three-part North Dakota test for equitable estoppel (intent to induce reliance; actual reliance causing late filing; defendant’s acts before limitations expires).
  • Superior, Inc. v. Behlen Mfg. Co., 2007 ND 141, ¶¶ 24-25, 738 N.W.2d 19: Reinforced that settlement discussions alone do not create estoppel.
  • Schmidt v. Grand Forks Country Club, 460 N.W.2d 125, 129-30 (N.D. 1990) and Huber v. Oliver Cnty., 529 N.W.2d 179, 183 (N.D. 1995): Supplied the “lulling” standard—conduct “naturally calculated” to induce belief claim will be adjusted without suit; negotiations create estoppel only if calculated to induce reliance.
  • Franklin v. Mitchell, 87 So.3d 573, 580-81 (Ala. Civ. App. 2011), Dean v. Frank W. Neal & Assocs., Inc., 166 S.W.3d 352, 358-60 (Tex. Ct. App. 2005), Lantzy v. Centex Homes, 73 P.3d 517, 533 (Cal. 2003), New England Power Co. v. Riley Stoker Corp., 477 N.E.2d 1054, 1060 (Mass. App. Ct. 1985), Moyer v. Doug Lasher Constr., Inc., 560 P.3d 1114, 1120, 1123 (Idaho 2024): Persuasive authorities used to support a central construction-defect principle: repair attempts, even extended ones, ordinarily do not estop limitations absent proof they were calculated to induce forbearance (and did so).
  • Narum v. Faxx Foods, Inc., 1999 ND 45, ¶ 26, 590 N.W.2d 454: Underscored that plaintiffs must show actual inducement and due diligence once estoppel circumstances cease; Hanson’s own testimony weakened causation.

4. Duty-to-disclose as a substitute for affirmative deception

  • Snortland v. State, 2000 ND 162, ¶¶ 15-17, 615 N.W.2d 574, Muhammed v. Welch, 2004 ND 46, ¶¶ 20-22, 675 N.W.2d 402, and Krueger v. St. Joseph's Hosp., 305 N.W.2d 18, 24-25 (N.D. 1981): Defined the narrow circumstances for duty-to-disclose tolling/estoppel—actual knowledge of a material fact uniquely held by defendant, suppressed through expiration, and not equally accessible to plaintiff.
  • Cabrini Med. Ctr. v. Desina, 479 N.E.2d 217, 219-20 (N.Y. 1985) and State Farm Fire & Cas. Co. v. Joseph G. Kelley Constr. Mgmt., Inc., No. 04-CV-3136 (TCP), 2007 WL 9724590, at *2 n.3 (E.D.N.Y. Jan. 31, 2007): Used by analogy to reject importing continuous professional/fiduciary-like doctrines into ordinary contractor relationships.

B. Legal Reasoning

1. Litigation conduct did not forfeit limitations

The Court accepted that limitations can be pleaded and preserved (no waiver) and declined to adopt—at least on these facts—an out-of-state “forfeiture by inconsistent conduct” approach. Dabbert moved for summary judgment within the scheduling order’s dispositive-motion deadline and shortly after obtaining Hanson’s deposition transcript. The Court treated this as ordinary, reasonable sequencing: discovery (especially Hanson’s knowledge and timeline) informed the accrual analysis.

Filing a third-party complaint for contingent indemnity and contribution was also not “fundamentally inconsistent” with asserting limitations. A defendant can simultaneously argue “plaintiff is time-barred” and “if not time-barred, others may be responsible.”

2. Accrual under the discovery rule: inquiry notice fixed by Hanson’s own writing

Applying N.D.C.C. § 28-01-16(1) and the discovery rule, the Court identified the operative question as: when would a reasonable person have enough information to investigate and recognize a potential claim?

The Court held the record allowed only one conclusion: Hanson had inquiry notice no later than December 28, 2015. By then, he had (i) experienced persistent and abnormal cold localized to the northwest corner; (ii) observed frost and large temperature differentials; (iii) escalated concerns to the Home Builders Association; and (iv) specifically put in writing his suspicion of insulation problems and requested an insulation check. Under Riemers v. Omdahl and Froysland v. Altenburg, professional confirmation (the 2022 Nordic inspection) could not postpone accrual.

3. Post-warranty repair activity generally does not create equitable estoppel

Hanson reframed Dabbert’s repair efforts as conduct inducing him not to sue. The Court separated accrual from estoppel: repair activity after inquiry notice does not change the date the clock starts; it only potentially supports estoppel if it objectively and actually caused forbearance.

Using Schmidt v. Grand Forks Country Club and Huber v. Oliver Cnty., the Court required proof that Dabbert’s conduct was “naturally calculated” to induce belief the claim would be resolved without litigation. It then made an explicit policy observation tailored to construction disputes: treating good-faith repairs as “lulling” conduct would discourage contractors from attempting remediation. The Court aligned North Dakota’s estoppel doctrine with the persuasive repair-effort cases it cited (Franklin v. Mitchell, Dean v. Frank W. Neal & Assocs., Inc., Lantzy v. Centex Homes, New England Power Co. v. Riley Stoker Corp., Moyer v. Doug Lasher Constr., Inc.).

The Court also found a missing causation link: Hanson testified his delay was driven by financial constraints from a workplace injury, undermining reliance. Under Narum v. Faxx Foods, Inc., estoppel fails without actual inducement and diligence.

4. No “duty-to-disclose” estoppel on this record

Hanson argued the district court wrongly required affirmative deception. The Supreme Court agreed duty-to-disclose can substitute for affirmative deception (Muhammed v. Welch), but held the exception did not apply: Hanson produced no evidence that Dabbert had actual knowledge of a specific defect uniquely within Dabbert’s control and suppressed it through the limitations period. The draft release’s language (“any voids … that may exist”) indicated uncertainty, not concealment. Hanson also had means to obtain information through ownership and independent inspection, defeating the “uniquely within defendant’s knowledge” predicate discussed in Snortland v. State and Krueger v. St. Joseph's Hosp..

C. Impact

  • Clearer path to summary judgment on accrual in defect cases where plaintiff’s own communications show inquiry notice: The decision signals that when contemporaneous documentation (emails, complaints, admissions) fixes knowledge, accrual can be decided as a matter of law.
  • Repair efforts are safer for contractors (estoppel-wise) absent “don’t sue” inducement: The Court’s policy discussion discourages characterizing good-faith remediation as “lulling,” which may encourage contractors to attempt repairs without forfeiting limitations defenses—while still leaving room for estoppel when a contractor uses repairs as a tactic to run out the clock.
  • North Dakota resists expansive “forfeiture by litigation conduct” theories: Timely pleading and a summary judgment motion filed within scheduling deadlines—despite intervening discovery and third-party practice—will ordinarily preserve limitations.
  • Narrow duty-to-disclose tolling/estoppel remains exceptional: Plaintiffs must show actual knowledge, unique access, suppression, and lack of equal means—conditions unlikely to be met in typical builder-homebuyer disputes.

IV. Complex Concepts Simplified

Accrual
The date a legal claim “starts the clock” for filing suit.
Discovery rule
Accrual is delayed until the plaintiff knew—or reasonably should have known—facts showing a wrongful act and injury.
Inquiry notice
The point when a reasonable person has enough information to prompt investigation. It does not require certainty, an expert report, or complete knowledge of the defect’s scope.
Waiver vs. forfeiture
Waiver is typically intentional relinquishment (in this context often failing to plead limitations). Forfeiture is losing a right through inconsistent conduct despite having preserved it.
Equitable estoppel (against limitations)
A fairness doctrine that can prevent a defendant from asserting limitations if the defendant’s conduct was intended to induce reliance, actually induced late filing, and occurred before limitations expired.
Duty to disclose
In narrow settings, failing to disclose a material fact the defendant is bound to disclose can substitute for affirmative deception—but usually only when the fact is uniquely within defendant’s knowledge and not equally obtainable by the plaintiff.

V. Conclusion

Hanson v. Dabbert Custom Homes 2026 ND 139 strengthens the practical enforceability of the six-year limit in N.D.C.C. § 28-01-16(1) in construction-defect litigation by: (1) treating a homeowner’s early, documented suspicion of a defect as dispositive inquiry notice; (2) rejecting the notion that ordinary litigation steps or third-party practice for contingent liability forfeits a pleaded limitations defense; and (3) limiting equitable estoppel where post-warranty repairs and negotiations reflect good-faith problem-solving rather than conduct calculated to induce forbearance. The decision is a cautionary precedent: once facts suggest a defect and injury, a homeowner must investigate promptly and file within six years, even if the builder continues attempting repairs.