IN COURT OF APPEALS
Duane F. Nelson, et al.,
Filed June 27, 2006
Washington County District Court
File No. C0-03-6170
Jamie R. Pierce, Thomas G. Wallrich, Cyrenthia D. Jordan, Mansfield, Tanick & Cohen, P.A., 1700 U.S. Bank Plaza South, 220 South Sixth Street, Minneapolis, MN 55402 (for appellant);
Stephen F. Buterin, Mark J. Heley, Coleman, Hull & Van Vliet, P.L.L.P., 8500 Normandale Lake Boulevard, Suite 2110, Minneapolis, MN 55437 (for respondent Short-Elliot-Hendrickson, Incorporated);
Elisa Martha Hatlevig, James Golembeck, Patrick S. Collins, Jardine, Logan, & O’Brien, P.L.L.P., 8519 Eagle Point Boulevard, Suite 100, Lake Elmo, MN 55042 (for respondent City of Stillwater).
Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Willis, Judge.
S Y L L A B U S
1. Appellants’ second claim against
2. A sedimentation pond built on an easement granted to respondent Stillwater to reduce the amount of nutrients and sediment flowing into a lake abutting appellants’ property is an improvement to real property under Minn. Stat. § 541.051, subd. 1(a) (2002).
O P I N I O N
This is an appeal from summary judgment in a drainage-related dispute. Appellant-property owners argue (a) the district court erred in ruling that a prior action by appellants against the city is a basis for applying res judicata in this action where, they argue, part of the basis of the current action occurred after the ruling in the prior case and the claims are distinct; (b) fact issues exist regarding whether the city failed to maintain the easement in question; (c) the city is liable for damages caused by its failure to maintain the easement; (d) the district court mischaracterized the drainage-related hole on appellants’ property as an improvement to real property, and hence erred in concluding appellants’ suit against the project designer is barred by the statute of limitations in Minn. Stat. § 541.051, subd. 1(a) (2002); (e) fact issues exist regarding appellants’ injury and hence summary judgment was inappropriate; and (f) the city’s notice of review regarding the alternative theories for the relief it sought is premature because the district court did not address those theories. We affirm.
Since 1968, appellants Duane and Margaret Nelson have
been owners of a parcel of land adjacent to Lily Lake (lake) located in the
City of Stillwater (Stillwater), respondent.
When purchased by appellants, the property was encumbered by an easement
in favor of
As a result of increased nutrient pollution in the lake,
The purpose of the plan was to reduce the amount of
nutrients and sediment flowing into the lake, thereby improving its water
quality. The plan required that an
above-ground sedimentation pond be built to capture harmful nutrients and
sediment before entering the lake. The
plan placed the sedimentation pond on
In October 2000, appellants brought suit against
In September 2003, appellants again brought suit against
The district court granted the summary judgment motion of
Appellants argue the following: (1)
the district court erred in ruling that the prior action by
Did the district court err by ruling that res judicata
barred appellants’ claim against
II. Did the district court err by ruling that the sedimentation pond on appellants’ property was an improvement to real property under to Minn. Stat. § 541.051, subd. 1(a) (2002)?
III. May this court review alternative theories raised by respondents when the district court did not base its order on the alternative theories?
Appellants argue that their previous suit against
The doctrine of res judicata is designed to prevent the relitigation of
causes of action already determined in a prior action. Beutz v. A.O. Smith Harvestore Prods.,
Inc., 431 N.W.2d 528, 531 (
second claim against
that the causes of action are different in the two claims and do not involve
the same claim for relief. Res judicata
involves circumstances that give rise to a claim and precludes a second claim
for the same cause of action “not only as to every matter which was actually
litigated, but also as to every matter which might have been litigated
therein.” Hauschildt v. Beckingham, 686 N.W.2d 829, 840 (
We conclude that both
claims arose out of the “same operative nucleus of facts.” Both claims arise from: (a) appellants’ ownership of specific
that their first claim of inverse condemnation required different evidence to
sustain in comparison to their second claim for breach of duty to maintain or
negligence in failing to act to maintain the water quality storm-sewer project. Although there may be instances where
different claims as a result of a cause of action need to be supported by
different evidence, this is not the case here.
In their first claim involving inverse condemnation, appellants sought
damages for nuisance. Although under a
different theory, appellants’ negligence theory under their second claim would
involve the same or similar evidence as their nuisance theory under their first
claim. Under their nuisance theory,
appellants alleged that they sustained damages “in the amount of the reasonable
value and use and occupation” of their property as a result of
Appellants could have brought their negligence claim in their first complaint. Appellants testified that they were aware of the cause of their injuries as a result of alleged negligence in December 1999 and certainly by the summer of 2000, prior to the commencement of their first claim. Appellants had the opportunity to litigate the matter. SEHI argues that res judicata also prevents appellants from bringing suit against it. Because the district court did not make findings or rule on this issue, we do not review it.
The district court found that “[i]t appears well settled and clearly held that storm sewer systems qualify as improvements to real property” under Minn. Stat. § 541.051. The district court also found the sedimentation pond, is “undeniably an integrated component of the city storm sewer system, designed to catch and treat run-off from the sewers before it can reach the lake.” The district court concluded that because appellants had first discovered their injury arising from the alleged defective condition of the pond more than two years prior to commencement of their claim, their action was time barred under the statute. Appellants argue that the pond and structures associated with the pond do not constitute “actual improvement to their real property.”
Improvement to Real Property
Minn. Stat. § 541.051, subd. 1(a) states:
. . . no action by any person in contract, tort, or otherwise to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of the injury, shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury or, in the case of an action for contribution or indemnity, accrual of the cause of action, nor, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction. Date of substantial completion shall be determined by the date when construction is sufficiently completed so that the owner or the owner's representative can occupy or use the improvement for the intended purpose.
We conclude the district court properly found that the sedimentation pond and its structures are improvements to real property for purposes of Minn. Stat. § 541.051.
This court uses a
common sense approach when determining whether something is an improvement to
real property for purposes of the statute of limitations. Williams v. Tweed, 520 N.W.2d 515, 518 (Minn. App.
1994), review denied (Minn. Oct. 27, 1994). While statutes that limit
damages based on improvements to real property are
construed strictly, court, nonetheless, give effect to the plain meaning of the
statute’s words without resort to technical legal constructions of its
terms. Kline v. Doughboy Recreational
Mfg. Co., 495 N.W.2d 435,
N.W.2d at 439; Thorp v. Price Bros. Co., 441 N.W.2d 817, 820 (Minn. App. 1989), review denied (Minn. Aug. 15, 1989).
Appellants also cite
this court’s decision in Johnson v.
Steele-Waseca Co-op. Elec. where this court concluded that a pole installed
on a farmer’s property by the electric company to properly distribute power to
the farmer, did not constitute an improvement to real property. 469 N.W.2d 517, 519-20 (
In Johnson, an electric company installed
equipment onto a farmer’s barn and a pole located on the farmer’s
In our decision, we
ruled that the equipment installed onto the farmer’s barn was an improvement to
real property because it added value to the farmer’s barn.
Based on Johnson, appellant argues that the
sedimentation pond is an addition to
First, the decision in Johnson is distinguishable in regards to SEHI. In Johnson, this court noted that the electric company “owns and has maintained continuous control” over the pole. 469 N.W.2d at 520. This court stated:
Minn. Stat. § 541.051 limits the time to bring an action in order to protect from suits those who install or create the improvement and then surrender control of it. We do not interpret Minn. Stat. § 541.051 to shelter from liability an electric power company that installs and maintains control of an electric pole and transformer, especially when the purpose is to distribute power. Minn. Stat. § 541.051 does not protect the installer/owner from its own ongoing negligence.
Per the language
of Johnson, SEHI never “maintained control”
of the pond or was the owner of the pond responsible for its “own ongoing
negligence.” SEHI surrendered control of
the pond to
We conclude that
the pond was an improvement to real property.
Although the sedimentation pond may or may not have increased the dollar
value of appellants’ property, it improved the quality and betterment of
Discovery of Injuries
Because we conclude that the sedimentation pond is an improvement to real property, appellants’ claims for negligence against SEHI are barred by Minn. Stat. § 541.051, subd. 1(a), appellants did not bring their claim within two years of discovery of their injuries.
Minn. Stat. § 541.051, subd. 1(a) states:
no action by any person in contract, tort, or otherwise to recover damages for any injury to property, real or personal . . . arising out of the defective and unsafe condition of an improvement to real property . . . shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury . . . .
The statute further instructs “a cause of action accrues upon discovery of the injury . . . .” Minn. Stat. § 541.051, subd. 1(b). Because appellants discovered their injury more than two years before they filed their lawsuit, their negligence claims under subdivision 1(a) are untimely.
Appellants testified that they began to experience problems with the sedimentation pond in the summer of 2000, three years before they filed suit. Mr. Nelson testified that prior to the pond being built, he used his physics book and determined that the pond was not big enough. Mr. Nelson noticed the sedimentation pond smelled like a cesspool right after the pond was completed. He also testified that he noticed dead fish and muskrats in the pond “all years” meaning every year since the pond was built. Mr. Nelson testified that his former son-in-law, a geotechnical engineer, whose work involved storm-water sewer systems, opined that the pond was inadequate both before it was built and immediately after. Mrs. Nelson also testified that she first noticed a mosquito problem and foul smells in the spring and summer of 2000.
There is an
abundance of testimony from both appellants showing that they first became
aware of problems in December 1999, and by the summer of 2000. The present suit did not commence until
September 2003. Under
The district court
dismissed claims against
The district court dismissed claims against SEHI based on Minn. Stat. § 541.051 although SEHI presented alternative theories. The district court failed to make a written analysis on alternative theories because, “of the conclusive statute of limitations issue.” On appeal, SEHI argues that this court should also affirm the district court’s decision because appellants failed to serve an affidavit of expert of review within 60 days after receiving SEHI’s demand for expert certification.
Appellants argue that
because the district court did not make a determination on respondents’
alternative theories, this court may not review claims based on the alternative
theories. This court can, if it needs to, affirm
summary judgment on alternative theories presented but
not ruled on at the district court level. See, e.g., Winkler v. Magnuson, 539 N.W.2d 821, 827 (Minn. App. 1995),
review denied (
D E C I S I O N
Appellants’ allegations against
The sedimentation pond is an improvement to real property; thus, appellants’ claim against SEHI is barred by the statute of limitations under Minn. Stat. § 541.051, subd. 1(a).