This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-00-348

 

Ronald C. Lovejoy, et al.,
Respondents,

vs.

County of Dakota,
Appellant.

 

Filed October 3, 2000

Reversed

Klaphake, Judge

 

Dakota County District Court

File No. C4-98-8307

 

 

George L. May, Terence G. O’Brien, Jr., May Law Offices, 204 Sibley Street, Suite 202, Hastings, MN  55033 (for respondents)

 

James C. Backstrom, Dakota County Attorney, Michael R. Ring, Assistant Dakota County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN  55033 (for appellant)

 

 

            Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Huspeni, Judge.*


U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            After incurring more than $37,000 in attorney fees defending a trespass and encroachment action brought against them by their neighbors, respondents Ronald and Elizabeth Lovejoy sued appellant Dakota County (the county) in May 1998, alleging that the county had improperly relocated a section quarter corner monument in 1985, denied them due process by not informing them that it had relocated the monument, and deprived them of their property through “inverse condemnation.”  They sought consequential damages, “taking” damages, and their costs and attorney fees.

The county moved for summary judgment, arguing that the Lovejoys’ action was barred because it was not brought within 10 or 12 years, as required by the statute of limitations covering errors in land surveys, Minn. Stat. § 541.051 (1998).  The trial court denied the county’s motion, and the case proceeded to trial.

Based upon the jury’s response to the special verdict, the trial court determined that the county surveyor improperly relocated the corner monument in 1985, causing the Lovejoys’ northern boundary fence to be located on their neighbors’ property.  The trial court awarded the Lovejoys damages of $34,300.51 to reimburse them for attorney fees and expenses they had incurred in defending the lawsuit brought against them by their neighbors.

Both parties appeal.  Because the Lovejoys’ action for damages against the county is barred under any applicable statute of limitations, we reverse the judgment.  We decline to address the other issues raised by the parties as not dispositive or relevant to our decision.[1]

D E C I S I O N

Summary judgment is proper where no genuine issues of material fact exist and either party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.  When the material facts surrounding a statute of limitations issue are not in dispute, our review is limited to whether the trial court erred in its application of the law.  Hermann v. McMenomy & Severson, 590 N.W.2d 641, 643 (Minn. 1999) (citing Weeks v. American Family Mut. Ins. Co., 580 N.W.2d 24, 26 (Minn. 1998)); see also Benigni v. St. Louis County, 585 N.W.2d 51, 54 (Minn. 1998) (construction and applicability of statutes of limitation are questions of law that appellate court reviews de novo).  The general rule is that the statute of limitations in existence at the time an action is commenced applies.  Sarafolean v. Kauffman, 547 N.W.2d 417, 421 (Minn. App. 1996).

In support of its motion for summary judgment, the county argued that the Lovejoys’ action was barred by the 10- or 12-year statute of limitations for actions based on land survey errors, Minn. Stat. § 541.052 (1998).  That statute provides in pertinent part:

            Subdivision 1.  Except where fraud is involved, no action to recover damages for an error in the survey of land * * * may be brought against any person performing the survey more than two years after the discovery of the error, nor in any event more than ten years after the date of the survey.

            Subd. 2. Notwithstanding the provisions of subdivision 1, in the case of action which occurs during the ninth or tenth year after the date of the survey, an action to recover damages may be brought within two years after the date on which the action occurred, but in no event may an action be brought more than 12 years after the date of the survey.

 

Id.

            The trial court determined that summary judgment was not appropriate because a question of fact existed “as to whether a proper land survey was in fact completed, and whether [the county] properly filed a certified copy of the county surveyor’s notes and records from which the entire survey was relocated in 1985.”  Minn. Stat. § 381.12, subd. 1 (1998), the statute authorizing the county to relocate corner monuments, provides that the “surveyor shall make full and accurate notes and records from which the entire survey can be relocated and shall file a certified copy of the same, with a plat, in the office of the * * * county surveyor[.]”

            The county insists that its surveyor, Bernie Larson, complied with this requirement by making accurate file notes and drawings as he and his staff researched the corners in Section 19.  These notes are part of the records located within the county surveyor’s office and are available for inspection.  Despite the county surveyor’s failure to file a “certified copy” of his notes and records, with a plat, assistant county surveyor Fred Johnson, who prepared the “corner report” on the east quarter corner of Section 19, testified:

[T]here is a record of all the fieldwork, all the field notes exist, drawings of the fieldwork, drawings reduced to mathematical computations for the inverses around the sections that give you distances between monuments, a section line drawing of those results, a corner report on public record, by my definition of survey, yes.

 

Indeed, once Ronald Lovejoy actually visited the county surveyor’s office and spoke to Johnson in June 1997, he discovered that the county had relocated the corner monument in 1985; presumably, these documents and the basis for the county surveyor’s decision were accessible to Ronald Lovejoy.

            Thus, the Lovejoys’ action is one for damages based on alleged errors made by the county surveyor in 1985, when he determined, based on certain surveying techniques, that one of the corner monuments had been incorrectly placed in 1942 or 1943 by part-time county surveyor Paul McLagan.  See Minn. Stat. § 389.04 (requiring county surveyor to follow certain federal standards when making “surveys,” which includes subdividing sections or “restoring lost or obliterated government corners”).  Under Minn. Stat. § 541.052, the Lovejoys’ action is barred because it was brought more than 12 years after the date of the 1985 “survey.”

            The Lovejoys offer several arguments in an attempt to circumvent this result.  They first argue that this action is governed by the six-year statute of limitations for actions based on a liability created by statute, Minn. Stat. § 541.05, subd. 1(2) (1998).  However, Minn. Stat. § 381.12 does not create a statutory liability for improper relocation of corner monuments.  Cf. Manteuffel v. City of North St. Paul, 570 N.W.2d 807, 812 (Minn. App. 1997) (“A cause of action is a ‘liability created by statute’ for limitations purposes when it is imposed by a statute that does not merely recognize or codify liability existing at common law.”).

            In addition, the Lovejoys’ action against the county is untimely even under this six-year statute of limitations, whether it is considered a negligence action or an action based on a liability created by statute.  See Minn. Stat. § 541.05, subd. 1(2), (5).  Although the Lovejoys argue that the statute of limitations did not begin to run until 1996 when they were sued by their neighbors and discovered that they had been damaged by the actions taken by the county in 1985, the supreme court has recently rejected adoption of the “discovery rule”[2] to the six-year statute of limitations for negligence in a legal malpractice case.  See Hermann, 590 N.W.2d at 643.  The Lovejoys were first injured in 1985, when the county relocated the corner monument and changed their property lines; at that point, they could have brought an action challenging the county’s actions and seeking to reestablish their boundary lines.  In the absence of fraud, ignorance of a cause of action does not prevent the statute of limitations from running.  Id.

            The Lovejoys next argue that application of Minn. Stat. § 541.052 to their cause of action constitutes an impermissible retroactive application of that statute.  See Minn. Stat. § 645.21 (1998) (“No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature.”).  Minn. Stat. § 541.052 was enacted in 1986 and became effective on August 1, 1986.  See 1986 Minn. Laws ch. 455, § 93; see also Minn. Stat. § 645.02 (1998) (“Each act, * * * enacted finally at any session of the legislature takes effect on August 1 next following its final enactment, unless a different date is specified in the act.”).

            A newly enacted statute generally may not be retroactively applied to an existing cause of action.  See Midwest Family Mut. Ins. Co. v. Bleick, 486 N.W.2d 435, 438 (Minn. App. 1992), review granted in part, denied in part (Minn. July 27, 1992).  Some cases have created an exception to this general rule and allow a new statute of limitations to be applied to a cause against which an old statute is running, provided that the new statute has the effect of extending and not shortening the period in which a plaintiff may file a lawsuit.  See, e.g., Klimmek v. Independent Sch. Dist. No. 487, 299 N.W.2d 501, 502 (Minn. 1980); Wschola v. Snyder, 478 N.W.2d 225, 226-27 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992).

            If the Lovejoys’ cause of action existed prior to 1986, then we must examine whether application of Minn. Stat. § 541.052 to their existing cause of action would extend or shorten the time for bringing suit.  As already discussed, the six-year statute of limitations, which presumably would have applied to the Lovejoys’ action in 1985, would have run in 1991.  Thus, application of Minn. Stat. § 541.052 to their cause of action would have enlarged the time in which the Lovejoys could have sued the county, from only six years after 1985 (1991), to as many as 10 or 12 years after that date (1995 or 1997).  Even with this extension, however, the Lovejoys’ action is untimely.

            Finally, even if we accept the Lovejoys’ argument that their cause of action did not exist or accrue until 1996, when they were sued by their neighbors and discovered their damages, there is no retroactive application.  If the Lovejoys’ cause of action did not exist in 1986 when Minn. Stat. § 541.052 became effective, application of that statute of limitations to their cause of action is not a retroactive application.  See Bleick, 486 N.W.2d at 438 (where injury and death occurred after effective date of statute, there is no retroactive application, even though statute affected pre-existing insurance contract).  Nothing prevents the legislature from changing or even shortening a statute of limitations for a cause of action that does not yet exist.  See Klimmek, 299 N.W.2d at 502.

            Because the Lovejoys’ cause of action is barred under either the six-year statute of limitations or under the 10- or 12-year statute of limitations for actions based on surveying errors, we reverse the district court’s denial of the county’s motion for summary judgment.

            Reversed.

 



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

 

[1] Although this action was pled and litigated as one for damages, we note that the trial court also ordered the county to reset the corner monument at its pre-1985 position.  Because this equitable relief has not been challenged on appeal, our decision here has no effect on that part of the judgment.

[2] The “discovery rule” has been used by courts and legislatures to avoid the harsh result that often allows a statute of limitations to run when some damage is incurred, even if the plaintiff has not yet discovered that he has suffered damages.  W. Page Keeton, Prosser on the Law of Torts § 30, at 165-66 (5th ed. 1984).  Many statutes of limitations that incorporate a discovery rule also include an outer time limit, called a statute of repose.  Id. at 167.  Indeed, Minn. Stat. § 541.052 (1998) is such a statute, as it incorporates elements of a discovery rule, by requiring actions to be brought within two years of discovery of a surveying error, with a statute of repose, by limiting any action to 10 or 12 years after the date of the survey.