This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-01-2154

 

J.P.T. Corporation, et al.,

Appellants,

 

vs.

 

City of St. Paul, Minnesota,

Respondent.

 

Filed August 13, 2002

Affirmed

Hanson, Judge

 

Ramsey County District Court

File No. CX-01-3269

 

Daniel Zeddies, DANIEL ZEDDIES P.A., 208 Grain Exchange Building, 400 South 4th Street, Minneapolis, MN 55415 (for appellants) 

 

Manuel J. Cervantes, St. Paul City Attorney, John H. Stechmann, Assistant City Attorney, 15 West Kellogg Boulevard, 500 City Hall/Courthouse, St. Paul, MN 55102 (for respondent)

 

            Considered and decided by Halbrooks, Presiding Judge, Klaphake, Judge, and Hanson, Judge.

U N P U B L I S H E D  O P I N I O N

HANSON, Judge

On appeal from summary judgment dismissing appellant landowner’s action to enjoin enforcement of respondent city’s order that landowner disconnect its storm-discharge line from the city’s sanitary sewer, landowner argues that the district court erred by ruling that (1) the injunction action was time-barred by the limitation period of Minn. Stat. § 541.051 (2000); (2) the injunction was barred by the public-duty doctrine; and (3) the city was immune from liability.  We affirm.

FACTS

Appellant J.F.T. Corporation (J.F.T.)[1] operates a gas station at the intersection of Hamline and Marshall Avenues in St. Paul.  In July 1985, J.F.T. applied to respondent City of St. Paul for approval of its site plan to demolish and rebuild the gas station.  At that time, J.F.T. could lawfully use the city’s combined storm and sanitary sewer on Marshall Avenue for J.F.T.’s storm discharge. 

In February 1986, in response to funding offered by the state, the city adopted the Rainleader Disconnect Program under which sewer overflow into the Mississippi River would be decreased by separating the combined storm and sanitary sewers into two distinct systems.  In March 1986, one month after the Rainleader Disconnect Program was adopted, but before it was effective, J.F.T. submitted a first revised site plan to the city.  The plan contemplated the reconnection of J.F.T.’s storm discharge line to the combined sewer system on Marshall Avenue.  In January 1987, J.F.T. submitted a second revised site plan, contemplating the same connection.  The second revised site plan was partially approved by the city that same month. 

On April 20, 1987, the Rainleader Disconnect Program became effective under the city’s legislative code.  In September 1987, the city informed J.F.T. by letter that the city would construct separated sewer systems in the gas station’s vicinity the following year.  But that same month the city finally approved J.F.T.’s second revised site plan, which contemplated connection to the Marshall Avenue combined sewer.  J.F.T. began construction and connected its storm-discharge line to the Marshall Avenue combined sewer. 

The president of J.F.T. testified that about two weeks after he received the September 1987 letter, he called the city to ensure that the gas station would be in compliance.  He testified that he was not told that he needed to do anything further and that he was under the impression that the new facility would be in compliance. 

J.F.T. hired Sunde Engineering, Inc., to develop J.F.T.’s sewer specifications.  The engineer involved, Paul Swenson, testified that he understood that J.F.T. could only use the Marshall Avenue combined sewer through December 1987, but he believed that the separation of the Marshall Avenue sewer line would allow J.F.T. to reconnect its storm sewer discharge lines to a new Marshall Avenue storm-sewer line, and he designed J.F.T.’s storm-sewer discharge lines accordingly.

One year after the new gas station was built, the city began constructing the separated sewer systems on Hamline and Marshall Avenues.  The testimony conflicts with respect to the completion date of the new sewer systems.  One witness stated that the construction ended in June 1989, while the other stated that the construction on Hamline Avenue ended in August 1989 and the construction on Marshall Avenue ended sometime in the fall of 1989.  When completed, the new storm-sewer system on Marshall Avenue did not reach J.F.T.’s property.  As a result, the Hamline storm-sewer line presented the closest connection point.  But because J.F.T.’s gas station was constructed with a concrete drive and its storm-sewer discharge line was designed and had been located to connect at Marshall Avenue, J.F.T. alleged that it would now cost more than $32,000 to construct a new line to connect to the Hamline Avenue storm sewer.

Nine and one-half years later, in June 1999, the city notified J.F.T. that its sewer system violated the city’s legislative code.  J.F.T. filed an administrative appeal and was given an extension to disconnect its storm-sewer discharge from the Marshall Avenue sanitary sewer until November 2001.  In November 2000, J.F.T. sued the city for negligence and for violations of the Minnesota and United States Constitutions.  As to the negligence of the city, J.F.T. alleged three claims: (1) that the city was negligent in approving J.F.T.’s site plan;[2] (2) that the city was negligent in designing the new Marshall Avenue storm sewer to end before reaching J.F.T.’s property; and (3) that the city was negligent in failing to install a stub on the Hamline Avenue storm sewer to allow easier connection by J.F.T.  J.F.T. sought damages in excess of $50,000 and injunctive relief enjoining the city from enforcing its disconnection order except on condition that the city reimburse J.F.T. for the cost of constructing a connection to the Hamline Avenue storm sewer. 

The city filed a motion for summary judgment, and J.F.T. voluntarily dismissed its claims for damages in the first and second counts of the complaint, apparently in recognition that damage claims were barred by the statute of limitations.  The district court granted summary judgment in favor of the city, dismissing the third count for injunctive relief, based on its determination that the statute of limitations barred injunctive claims as well as claims for damages.  The district court also determined that even if the statute of limitations was inapplicable, summary judgment for the city was appropriate under either the public-duty doctrine or the discretionary-immunity doctrine.  This appeal followed.

D E C I S I O N

On appeal from summary judgment, a reviewing court asks whether there are any genuine issues of material fact to be determined and whether the district court erred by its application of the law.  O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996); see Minn. R. Civ. P. 56.03 (stating summary judgment is appropriate if the record shows “there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.”).  When a motion for summary judgment is properly made and supported, the nonmoving party may not rest upon mere averments or denials, “but must present specific facts showing that there is a genuine issue for trial.”  Minn. R. Civ. P. 56.05; see D.L.H., Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997) (stating that nonmovant must do more than create a “metaphysical doubt” as to an issue).  The reviewing court views the evidence in a light most favorable to the nonmovant.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).

I

J.F.T. argues that the statute of limitations would not bar its claim for damages and, even if it did, it cannot bar its claims for injunctive relief.  The city argues that the district court correctly determined that the statute of limitations bars all of J.F.T.’s claims because it applies equally to cases brought in equity and in law.

The Relevant Statute of Limitations

The district court determined that the relevant statute of limitations is Minn. Stat. § 541.051, which provides in subdivision 1 as follows:

541.051 Limitation of action for damages based on services or construction to improve real property.

 

            Subdivision 1.  (a) Except where fraud is involved, 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 * * * 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.

 

Minn. Stat. § 541.051, subd. 1(a) (2000).

 

J.F.T. does not seriously argue that Minn. Stat. § 541.051 is irrelevant to this action.  To do so might not benefit J.F.T. because it would invite application of the six-year residual statute of limitations under Minn. Stat. § 541.05, subd. 1(5) (2000), which applies to “any other injury to the * * * rights of another, not arising on contract, and not hereinafter enumerated.”  In any event, the supreme court has held that Minn. Stat. § 541.051 is relevant to claims of negligent design and construction of a storm sewer.  Capitol Supply Co. v. City of St. Paul, 316 N.W.2d 554, 555 (Minn. 1982).  We hold that Minn. Stat. § 541.051 provides the relevant statute of limitations in this case.

An “action * * * to recover damages”

J.F.T. argues that Count III of its complaint is not barred by Minn. Stat. § 541.051 because it seeks an injunction and is not an “action * * * to recover damages.”  Although Count III requests injunctive relief, J.F.T.’s claims in that count are essentially claims for damages.  J.F.T.’s counsel acknowledged at oral argument before this court that J.F.T. does not ask the court to permanently enjoin enforcement of the city’s disconnection order, but seeks reimbursement of J.F.T.’s costs to comply with the order.  Reimbursement for these costs would be measured in the same way that damages would have been calculated for the damage claims under counts I and II.  We construe J.F.T.’s reimbursement request to be an “action * * * to recover damages,” within the meaning of Minn. Stat. § 541.051.  Because Count III, in substance, is a claim for damages resulting from improvements to real property, the district court properly looked to Minn. Stat. § 541.051 for the limitations period applicable to this case.

Genuine issues of material fact

The district court decided that J.F.T.’s action was time-barred under the alternative limitation of Minn. Stat. § 541.051, subd. 1, that provides, “[N]or, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction.”  J.F.T. commenced its action on November 18, 2000.  Although there are some discrepancies in the testimony as to when construction was substantially completed, if we view that testimony in the light most favorable to J.F.T. and choose the latest date supported by the evidence, we would select “the fall of 1989,” which is at least 11 years before the action was brought.  Thus, there is no genuine issue of material fact under subdivision 1 of the statute.

J.F.T. argues on appeal that even if the action was not commenced within ten years after the completion of construction, the limitation period should be extended under the following repose provisions of subdivision 2:

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

 

Minn. Stat. § 541.051, subd. 2 (2000).  Because the action was commenced within 12 years after the completion of construction, this subdivision would save J.F.T.’s action if it were applicable.

            The city argues against the extension on two grounds.  First, it argues that J.F.T. did not preserve this issue because it did not present it to the district court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that this court generally will not consider matters that were not argued to and considered by the district court).  Although J.F.T. does not counter this argument, we proceed to the city’s second ground because it independently defeats the extension of the limitation period.

            The city argues that the extension does not apply because any claim of J.F.T. accrued well before the ninth year after substantial completion of construction.  The statute states that “a cause of action accrues upon discovery of the injury * * * .”  Minn. Stat. § 541.051, subd. 1(e) (2000).  We conclude that as a matter of law J.F.T. discovered its injury by 1989, upon the completion of the construction by the city of the sewer-separation project.

            First, J.F.T. certainly had constructive notice of the city’s legislative code, under which the connection of its storm discharge to the Marshall Avenue sanitary sewer became unlawful at least as soon as the construction of the new Marshall Avenue storm sewer was completed, no later than the fall of 1989.  See Snyder v. City of Minneapolis, 441 N.W.2d 781, 786-87 (Minn. 1989) (recognizing that a party can have constructive notice of a zoning ordinance, which bars that party’s action to recover damages).  More importantly, J.F.T. had actual knowledge at that time that the new storm sewer on Marshall Avenue had not been extended to its property and was not available for connection to its storm-discharge line.

In addition, the knowledge of J.F.T.’s engineer, Swenson, is imputed to J.F.T.  Swenson was hired to “get the approval with the city for storm drainage.”  Swenson testified that he knew of the future need to change the combined sewer into separate sewer systems; that he understood that J.F.T.’s connection to the Marshall Avenue combined sewer was temporary; and that the connection to that sewer would be noncompliant upon completion of the Marshall Avenue storm sewer.  See Restatement (Second) of Agency § 268 (1958) (“a notification given to an agent is notice to the principal if it is given” to an agent who is actually or apparently authorized to receive it or who is authorized to conduct a transaction in which that type of notice is typically given).  Because J.F.T. was aware of the injury at the completion of the construction of the new storm sewer, subdivision 2 does not apply in this case.

II

The district court granted summary judgment on the alternative grounds of the public-duty exception, citing Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806 (Minn. 1979).  J.F.T. does not challenge the district court’s ruling on the public-duty exception.  Accordingly, summary judgment is affirmed on that alternative ground.  See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating that issues not raised or briefed on appeal are waived).

Given the propriety of dismissal on either the statute of limitations or the public-duty exception, we need not address the further alternative ground of discretionary immunity.

            Affirmed.

 



[1] The property was originally owned by J.P.T. Properties.  Since 1991, the property has been owned by J.F.T.  For the purposes of this opinion, we will refer to the property owner as J.F.T. even though earlier events happened when the property was owned by J.P.T.

[2] While this claim of negligence has factual elements of a claim for equitable estoppel, J.F.T. did not plead or argue equitable estoppel and we will not consider whether such a claim could have been made.  Generally, estoppel is applied sparingly to governmental actions.  See, e.g., Ridgewood Dev. Co. v. State, 294 N.W.2d 288, 293-94 (Minn. 1980); Dege v. City of Maplewood, 416 N.W.2d 854, 856 (Minn. App. 1987).