Summary 2010 WY 148

Summary of Decision November 17, 2010

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Case Name: Adelizzi v. Stratton

Citation: 2010 WY 148

Docket Number: S-09-0257

URL: http://tinyurl.com/2882hny

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

Representing Appellant (Plaintiffs): James R. Bell of Murane & Bostwick, Casper, Wyoming.

Representing Appellee (Defendants): Patrick J. Murphy of Williams, Porter, Day & Neville, Casper, Wyoming.

Date of Decision: November 17, 2010

Facts: 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 for negligently and intentionally failing to disclose that the house they were purchasing was subject to flooding.

Issues: When did the limitation period for professional negligence begin to run under Wyo. Stat. 1-3-107 (2009)? Whether the district court correctly concluded that neither exception to the commencement of the limitation period found in Wyo. Stat. 1-3-107(a)(i) is applicable given the undisputed facts of this case.


Holdings: First, statutory construction is a matter of law; second, it is an attempt to seek legislative intent; third, the court will construe a statute only if it is ambiguous, with the question of ambiguity being a question of law; and fourth, a statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistency and predictability. In addition, a basic tenet of statutory construction is that omission of words from a statute is considered to be an intentional act by the legislature, and the court will not read words into a statute when the legislature has chosen not to include them. Finally, a closely related principle is that when the legislature specifically uses a word in one place, the court will not interpret that word into other places where it was not used.

Wyo. Stat. 1-3-107 is unambiguous. A plain reading of Wyo. Stat. 1-3-107 shows that the time for filing suit is governed by the date when the ‘act, error or omission’ occurs, rather than the date when the cause of action accrues. The concept of “when the cause of action accrues,” which defines every other period of limitation found in Wyo. Stat. 1-3-102 through 1-3-116 (2009), is not present in Wyo. Stat. 1-3-107. Under no theory of statutory construction are we free to interpret the words “within two years of the date of the alleged act, error or omission” to mean “within two years of the date when the cause of action accrues.” There could be no clearer example of the legislature using one set of words in some statutes and another set of words in the statute at issue. The statute of limitations began to run in this case on the last day that Appellees performed professional services for the Appellants under their agreement.

The period of limitations found in Wyo. Stat. 1-3-107 does not begin to run on the date of the alleged act, error or omission if the plaintiff can establish either that the alleged act, error or omission was not reasonably discoverable within the statutory two-year period or that the plaintiff failed to discover the alleged act, error or omission within the statutory two-year period, despite the exercise of due diligence. In the instant case, the alleged act, error or omission of Appellee was reasonably discoverable during the two-year period, and that fact that the Appellants did not discover the alleged act, error or omission was because they did not exercise due diligence. It was less than a month after the sale closed that the Appellants suffered the first of four flooding incidents that occurred during the two-year statutory period. It cannot reasonably be disputed that the Appellants had sufficient knowledge about the water problems and the non-disclosure of those water problems to make any professional negligence by Appellees reasonably discoverable well within the statutory two-year period.

The district court is affirmed because there are no genuine issues of material fact, and the appellees are entitled to judgment as a matter of law.



J. Voigt delivered the opinion for the court.