New Hope Wesleyan Church v. Ecclesia Construction Company, LLC

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
New Hope Wesleyan Church, )
)
Plaintiff, )
) ORDER DENYING DEFENDANT
vs. ) AND THIRD-PARTY DEFENDANTS’
) MOTIONS FOR SUMMARY
Ecclesia Construction Company, LLC, ) JUDGMENT
d/b/ Ecclesia Building Strategies, )
)
Defendant and Third-Party )
Plaintiff, ) Case No. 1:23-cv-105
)
vs. )
)
Chief Industries, Inc., d/b/a Chief )
Buildings; Hite Architecture, P.A.; Schultz )
Engineering Group, P.C.; Ironhidez )
Construction LLC, f/k/a Froemming )
Construction; Commercial Exterior )
Specialties, LLC, )
)
Third-Party Defendants, )
)
and )
)
Commercial Exterior Specialties, LLC, )
)
Fourth-Party Plaintiff, )
)
vs. )
)
Sergio Alaya Gomez d/b/a Stucco )
Solutions, )
)
Fourth-Party Defendant. )
______________________________________________________________________________
Before the Court are three motions for summary judgment. Defendant Ecclesia
Construction Company, LLC (“Ecclesia”) filed a motion for summary judgment on September 2,
2025. See Doc. No. 76. Third-Party Defendant Ironhidez Construction LLC filed a motion for
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summary judgment on September 11, 2025, that incorporated Ecclesia’s arguments. See Doc. No.
80. On September 23, 2025, Third-Party Defendant Shultz Engineering Group, P.C. also filed a
motion for summary judgment that incorporated Ecclesia’s arguments. See Doc. No. 83. Third-
Party Defendant Commercial Exterior Specialties, LLC (“Commercial Exterior”) filed a response
in support of Ecclesia’s motion on September 23, 2025. See Doc. No. 84. Fourth-Party Defendant
Sergio Alaya Gomez joined in Commercial Exterior’s response on September 23, 2025. See Doc.
No. 86. Plaintiff New Hope Wesleyan Church (“New Hope”) filed a response in opposition to
Ecclesia’s motion on October 10, 2025. See Doc. No. 87. Ecclesia filed a reply brief on October
24, 2025. See Doc. No. 88. For the reasons set forth below, the motions for summary judgment
are denied.
I. BACKGROUND
This case arises out of the construction of a renovation and an addition to the New Hope
Wesleyan Church located at 721 26th Street West, Williston, North Dakota, 58801 (“the Project”).
On December 7, 2012, Ecclesia provided New Hope with a proposal to perform architectural,
structural, civil, mechanical, electrical, fire alarm, and interior design services for new construction
and renovations of the church. New Hope and Ecclesia entered into a construction agreement on
May 2, 2013. Pursuant to the agreement, Ecclesia agreed to provide all design, labor, material,
equipment, and supervision to complete (1) new construction of a sanctuary, lobby, and adult
space, and (2) renovation of the existing building to convert it to a children’s and youth ministry
space. On May 8, 2013, New Hope entered into an agreement with Western Property Management,
LLC (“WPM”) under which WPM agreed to provide project management and owner’s
representative consulting services in support of the Project. Ecclesia entered into agreements in
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connection with the Project with Chief Industries, Inc., Hite Architecture, P.A., Schultz
Engineering, Ironhidez Construction LLC, Commercial Exterior, and Froemming Construction in
2012 and 2013.
The Project commenced in May 2013 and was constructed in two phases. Phase 1 included
the construction of a new building, including the sanctuary, lobby, and office space. Ecclesia
completed Phase 1 around May 2014. Phase 2 involved the remodel of the existing church. The
Phase 2 remodel began around June 2014. Ecclesia completed Phase 2 around December 2014.
During Phase 1 of construction, New Hope and Ecclesia became aware of leaks in the roof
of the property in areas constructed by Ecclesia. In December 2013 or January 2014, New Hope
observed water intrusion in several areas of the building. New Hope identified additional concerns,
including missing anchor bolts, HVAC system balancing, missing steel components, concrete
issues, and doors that did not close properly. On December 15, 2015, WPM documented
outstanding concerns at the property in a letter to Ecclesia, including: (1) roof leaks and cold
infiltration into wall cavities; (2) a failed structural connection inspection; and (3) roof drain and
stormwater issues. Other defects were found at later periods, including Ecclesia’s discovery of
structural defects pursuant to its own investigation in 2017 and the discovery of more than forty
leaks in the tower of the church in 2018.
Between 2014 and 2020 Ecclesia and New Hope engaged in ongoing communication
regarding roof repairs. Ecclesia repeatedly communicated its intention to resolve the roof leaks.
Ecclesia unsuccessfully attempted to repair the roof several times. On October 7, 2020, New
Hope’s legal counsel sent a letter to Ecclesia stating that New Hope intended to perform the repair
work itself. The letter instructed Ecclesia to cease all direct communication with New Hope and
route all future communication through counsel. New Hope retained American Engineering
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Testing, FCI Contractors, Mercer Engineering, PIE Consulting & Engineering, Sylvan Site
Services, and WMP to verify the scope and necessity of the repair work and to complete the repairs.
New Hope started the repair work in the Summer of 2022, and completed it in the Fall of 2022.
After completion, New Hope sent Ecclesia a bill totaling $1,634,235.01 for the cost of the repairs.
On May 2, 2023, New Hope brought claims against Ecclesia in state court for breach of
contract and negligence. See Doc. No. 1-2. Ecclesia removed the action to federal court on May
30, 2023, on the basis of diversity of jurisdiction. Id. New Hope alleges Ecclesia’s actions in
constructing the project were negligent and breached the parties’ construction agreement. On June
2, 2025, Ecclesia filed a third-party complaint against Chief Industries, Inc., Hite Architecture,
P.A., Schultz Engineering, Ironhidez Construction LLC, Commercial Exterior Specialties, LLC,
and Froemming Construction asserting claims of negligence, breach of contract, breach of
warranties, and indemnification and/or contribution in connection to the construction of the
project. See Doc. No. 2. Ecclesia alleges that any damages New Hope suffered were caused by the
third-party defendants, to the extent that such damages were not caused by New Hope. On June 3,
2025, Commercial Exterior filed a fourth-party complaint against Sergio Alaya Gomez d/b/a
Stucco Solutions, for negligence, breach of contract, breach of warranty, and contribution and/or
indemnification in connection to the construction of the project. Ecclesia, Ironhidez Construction
LLC, and Shultz Engineering Group, P.C. (collectively “Contractors”) filed motions for summary
judgment. See Doc. Nos. 76, 80, and 83. The motions have been fully briefed and are ripe for
disposition.
II. STANDARD OF REVIEW
Summary judgment is appropriate when the evidence, viewed in a light most favorable to
the non-moving party, indicates no genuine issues of material fact exist and that the moving party
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is entitled to judgment as a matter of law. Davison v. City of Minneapolis, Minn., 490 F.3d 648,
654 (8th Cir. 2007); see Fed. R. Civ. P. 56(a). Summary judgment is not appropriate if there are
factual disputes that may affect the outcome of the case under the applicable substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine if
the evidence would allow a reasonable jury to return a verdict for the non-moving party. Id. The
purpose of summary judgment is to assess the evidence and determine if a trial is genuinely
necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The court must inquire whether the evidence presents a sufficient disagreement to require
the submission of the case to a jury or whether the evidence is so one-sided that one party must
prevail as a matter of law. Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir.
2005). The moving party bears the responsibility of informing the court of the basis for the motion
and identifying the portions of the record which demonstrate the absence of a genuine issue of
material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). The non-
moving party may not rely merely on allegations or denials in its own pleading; rather, its response
must set out specific facts showing a genuine issue for trial. Id.; Fed. R. Civ. P. 56(c)(1). The court
must consider the substantive standard of proof when ruling on a motion for summary judgment.
Anderson, 477 U.S. at 252. If the record taken as a whole and viewed in a light most favorable to
the non-moving party could not lead a rational trier of fact to find for the non-moving party, there
is no genuine issue for trial and summary judgment is appropriate. Matsushita, 475 U.S. at 587.
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III. LEGAL DISCUSSION
A. NEGLIGENCE STATUTE OF LIMITATIONS
The Contractors argue New Hope’s negligence claim is barred by the applicable statute of
limitations. The Contractors maintain New Hope’s negligence claim accrued in 2014. New Hope
argues that when the claim accrued is a factual issue that precludes summary judgment.
General negligence claims in North Dakota are subject to a six-year statute of limitations
period under N.D.C.C. § 28-01-16. See Lang v. Barrios, 472 N.W.2d 464, 466 (N.D. 1991). The
statute of limitations for a claim “begins to run when the underlying cause of action accrues.”
Dunford v. Tryhus, 2009 ND 212, ¶ 7, 776 N.W.2d 539. Typically, the statute of limitations begins
to run from the commission of a wrongful act giving rise to the cause of action. BASF Corp. v.
Symington, 512 N.W.2d 692, 695 (N.D. 1994). However, when an injury only manifests itself
through the passage of time, the North Dakota Supreme Court applies the discovery rule for
determining when the cause of action accrues. “Under the discovery rule, the action does not
accrue and the limitations period does not begin to run until the claimant knows, or with reasonable
diligence should know, that a potential claim exists.” Id. “The determination of when a plaintiff's
cause of action has accrued is generally a question of fact, but if there is no dispute about the
relevant facts, the determination is for the court.” Dunford, 2009 ND at ¶ 6.
In this case, when New Hope’s cause of action accrued is disputed. The Contractors claim
the cause of action accrued in January 2014, when New Hope first became aware of issues with
construction. However, New Hope argues the determination of when the statute of limitations
period commenced is not straightforward. Although defects were first discovered in 2014, other
serious defects were discovered at later periods. For example, Ecclesia found structural defects
pursuant to an investigation in 2017. In 2018, Ecclesia found more than 40 leaks in just one area
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of the church. Further, Phase 2 construction was ongoing when New Hope first discovered the
leaks in the roof in Phase 1. Any injuries resulting from the construction of Phase 2 would not
have occurred yet at the time of the initial discovery of roof leaks in January 2014. Accordingly,
the injury could not have accrued yet. It is unclear whether the injuries that were discovered in the
years following 2014 could have been discovered with reasonable diligence in 2014, or if they
were latent injuries that could have been revealed only through the passage of time. Further,
Ecclesia repeatedly attempted to repair the defects, which was ultimately unsuccessful. The effect
of Ecclesia’s attempts to repair the defects also creates factual issues as to when the statute of
limitations period commenced. When the evidence is viewed in the light most favorable to the
non-moving Party (New Hope), the Court finds that there are genuine issues of material fact in
dispute that should be resolved by a jury rather than the Court. The Court concludes New Hope
may maintain a claim for negligence at this stage of proceedings.
B. BREACH OF CONTRACT STATUTE OF LIMITATIONS
New Hope brings a breach of contract claim against Ecclesia for an alleged breach of the
parties’ construction agreement. New Hope argues that Ecclesia’s defective work on the Project
constitutes a breach of Ecclesia’s contractual obligation to provide competent construction and
workmanship. The Contractors argue New Hope’s breach of contract claim is barred by a six-year
statute of limitations. New Hope argues the applicable statute of limitations provides a ten-year
limitations period.
The Contractors argue N.D.C.C. § 28-01-16 applies to New Hope’s breach of contract
claim. Under N.D.C.C. § 28-01-16, “an action upon a contract, obligation, or liability, express or
implied, subject to the provisions of sections 28-01-15 and 41-02-104” must be commenced within
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six years after the claim for relief has accrued. New Hope argues that N.D.C.C. § 28-01-44 applies,
rather than N.D.C.C. § 28-01-16. Section 28-01-44 provides in relevant part:
1. No action, whether in contract, oral or written, in tort or otherwise, to recover
damages:
a. For any deficiency in the design, planning, supervision, or observation of
construction or construction of an improvement to real property;
b. For injury to property, real or personal, arising out of any such deficiency;
or
c. For injury to the person or for wrongful death arising out of any such
deficiency, may be brought against any person performing or furnishing the
design, planning, supervision, or observation of construction, or
construction of such an improvement more than ten years after substantial
completion of such an improvement …
Nothing in this section may be construed as extending the period prescribed by
the laws of this state for the bringing of any action.
N.D.C.C. § 28-01-44. New Hope contends Section 28-01-44 allows it to bring its breach of contract
claim within ten years of accrual. New Hope is mistaken in its assertion that Section 28-01-44 is a
statute of limitations. The North Dakota Supreme Court has clearly established that N.D.C.C. §
28-01-44 is a statute of repose. See, e.g., Hebron Pub. Sch. Dist. No. 13 of Morton Cnty. v. U.S.
Gypsum Co., 475 N.W.2d 120, 126 (N.D. 1991) (referring to N.D.C.C. § 28-01-44 as a statute of
repose); See also Blikre v. ACandS, Inc., 1999 ND 96, 593 N.W.2d 775, 777-78 (discussing the
legislature’s intent in adopting the ten-year statute of repose under N.D.C.C. § 28-01-44).
In Hoffner v. Johnson, the North Dakota Supreme Court distinguished statutes of repose
from statutes of limitations. 2003 ND 79, 660 N.W.2d 909.
A statute of limitation bars a right of action unless it is filed within a specified
period of time after an injury occurs. The purpose of a statute of limitation is to
prevent plaintiffs from sleeping on their legal rights to the detriment of defendants.
A statute of limitation period commences either upon the occurrence of an injury,
or when the injury is discovered. A statute of limitation must allow a reasonable
time after a cause of action arises for the filing of a lawsuit.
A statute of repose terminates any right of action after a specific time has elapsed,
regardless of whether or not there has as yet been an injury. A statute of repose
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period begins to run from the occurrence of some event other than the event of an
injury that gives rise to a cause of action and, therefore, bars a cause of action before
the injury occurs. A person injured after the statutory period of repose is left without
a remedy for the injury.
Id. at ¶ 9 (internal quotations omitted). A statute of limitations commences from the time of injury
whereas a statute of repose commences from the date of the alleged wrongful act.
As a statute of repose, N.D.C.C. § 28-01-44 does not extend the limitations period
prescribed in N.D.C.C. § 28-01-16. Further, N.D.C.C. § 28-01-44 provides that “[n]othing in this
section may be construed as extending the period prescribed by the laws of this state for the
bringing of any action.” The plain language of the statutes, together with the North Dakota
Supreme Court’s treatment of statutes of repose and limitations, makes clear New Hope must
satisfy both statutory requirements. It must file its breach of contract claim within the six-year
period after discovery of the injury and before the ten-year statute of repose expires. Accordingly,
the six-year statute of limitations in N.D.C.C. § 28-01-16 is the applicable limitations period for
New Hope’s breach of contract claim.
Although it is clear that the six-year statute of limitations applies, the date the limitations
period began is a factual determination for the jury. Because the statute of repose is not at issue
here, the date of substantial completion that commences the statute of repose period is not relevant.
The relevant issue is when the cause of action accrued, which commences the six-year statute of
limitations period pursuant to N.D.C.C. § 28-01-16. The Court’s conclusion regarding the
existence of factual issues as to the accrual of New Hope’s negligence claim also applies to New
Hope’s breach of contract claim because both claims arise from the same factual basis. The year
that New Hope’s breach of contract claim accrued is a factual dispute that should be resolved by a
jury. Accordingly, for purposes of these summary judgment motions, the Court finds that there are
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genuine issues of material fact in dispute. The Court cannot conclude as a matter of law that New
Hope’s breach of contract claim is barred by the statute of limitations.
C. EQUITABLE ESTOPPEL
New Hope argues equitable estoppel requires the Court to the toll the statute of limitations
for its negligence and breach of contract claims. Ecclesia argues equitable estoppel does not apply
to this case. In addition to factual issues pertaining to the accrual of New Hope’s breach of contract
and negligence claims, there are genuine issues of material facts as to whether the doctrine of
equitable estoppel applies in this case.
Under North Dakota law, “[t]he doctrine of equitable estoppel may preclude application of
the statute of limitations as a defense by one whose actions misled another, thereby inducing that
person not to file a claim within the statutory period.” Superior, Inc. v. Behlen Mfg. Co., 2007 ND
141, ¶ 24, 738 N.W.2d 19 (citations omitted). “A delay may be excusable if it is not unreasonably
protracted, but is induced by the defendant's promises, suggestions, or assurances which, if carried
into effect, would result in a solution or adjustment without litigation.” Id. A plaintiff must
establish three elements to prove equitable estoppel: “(1) the defendant made statements intending
that plaintiff would rely on them; (2) the plaintiff in fact relied on the defendant's representations,
and as a result failed to commence the action within the limitation period; and (3) the defendant's
statements were made prior to the expiration of the limitation period.” Id. at ¶ 25. Although the
mere conduct of settlement negotiations or discussions between the plaintiff and defendant alone
is insufficient to provide the basis for estopping the defendant from pleading the statute of
limitations, “it is sufficient if the defendant's conduct or promises are such as are naturally
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calculated to and do induce plaintiff into a belief that his claim would be adjusted if he did not
sue.” Muhammed v. Welch, 2004 ND 46, ¶ 18, 675 N.W.2d 402.
In this case, the Ecclesia committed to repair the construction issues for six years. From
2014 to 2020 Ecclesia repeatedly told New Hope it would work on the repairs until the issues were
resolved. Ecclesia also repeatedly made unsuccessful attempts at repairing the issues. New Hope
alleges Ecclesia’s commitments and repair attempts occurred both before and after the expiration
of the limitation period alleged by the Contractors. New Hope argues Ecclesia misled it into
believing the issues ultimately would be resolved. The Contractors argue Ecclesia’s repair attempts
did not affirmatively cause New Hope to delay bringing this action. The parties dispute whether
Ecclesia’s actions and representations constitute settlement discussions or an inducement to delay
suit. The parties also contest whether a sufficient causal link exists between Ecclesia’s conduct
and New Hope’s alleged delay in filing this action.
The Court finds that there are genuine issues of material fact as to whether Ecclesia misled
New Hope with its commitments to fix the repairs; whether New Hope in fact relied on such
representations; and whether such representations rise to the level of inducement required to
establish equitable estoppel. The Court concludes that genuine issues of material fact exist as to
whether equitable estoppel precludes the Contractors from asserting a statute of limitations
defense. Accordingly, material factual disputes preclude summary judgment.
D. SPOLIATION
Finally, the Contractors assert that New Hope failed to provide Ecclesia with the
opportunity to inspect and preserve critical evidence by having a different contractor repair the
defects. The Contractors argue this alleged spoliation warrants dismissal of New Hope’s claims or
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the exclusion of its expert reports and/or testimony. New Hope argues the Contractors had
sufficient opportunity to inspect the condition of the building prior to New Hope’s repairs. The
Court agrees with New Hope and finds the extreme sanction requested is unwarranted.
“Spoliation of evidence occurs when a party destroys or fails to preserve evidence.”
Simmons v. Cudd Pressure Control, Inc., 2022 ND 20, ¶ 16, 969 N.W.2d 442. “There is a duty to
preserve evidence when litigation is reasonably foreseeable.” Id. However, “The duty to preserve
evidence is not unlimited, and a party may reasonably need to destroy evidence that it has a duty
to preserve.” Toman Eng'g Co. v. Koch Constr., Inc., 2022 ND 104, ¶ 20, 974 N.W.2d 680. When
evidence relevant to a lawsuit is destroyed, the district court may exercise its inherent power to
sanction. Fines v. Ressler Enters., Inc., 2012 ND 175, ¶ 7, 820 N.W.2d 688. “The purpose of
imposing sanctions for spoliating evidence is to penalize the party who spoliated the evidence, to
protect the integrity of the legal process by evening the playing field, and to prevent others from
engaging in similar conduct.” Simmons, at ¶ 16. (internal quotation marks omitted). “Dismissal
of the entire case with prejudice is perhaps the most restrictive sanction which exists.” Fines, at ¶
8.
The Contractors argue New Hope should have provided Ecclesia with notice that repair
work was being completed and should have provided Ecclesia with a full and fair opportunity to
inspect the evidence. It is undisputed that New Hope sent Ecclesia a letter on October 7, 2020,
informing Ecclesia that New Hope intended to complete the repairs itself. This is sufficient notice
of the repairs. Second, Ecclesia had an adequate opportunity to inspect the evidence throughout
the six years it spent unsuccessfully attempting repairs. Given Ecclesia’s investigations and
attempts at repairing the issues, Ecclesia should be well-acquainted with the defects. The Court
concludes Ecclesia had sufficient access and an opportunity to inspect the defects prior to New
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Hope’s completion of the repairs. New Hope’s repairs were ultimately completed in 2022, seven
years after the problems first arose. The Court acknowledges the reasonableness of New Hope’s
completion of the repairs after enduring a leaking roof for seven years. Accordingly, the Court
denies the Contractors’ request for sanctions.
IV. CONCLUSION
The Court has carefully reviewed the entire record, the parties’ briefs, and relevant case
law. For the reasons set forth above, the Defendant and Third-Party Defendants’ motions for
summary judgment (Doc. Nos. 76, 80, and 83) are DENIED.
IT IS SO ORDERED.
Dated this 4th day of November, 2025.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
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