This opinion will be unpublished and

may not be cited except as provided by

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






Al Blue, et al.,





City of Bemidji,



Young Excavating, Inc.,



State of Minnesota,



Filed ­­­August 13, 2002


Harten, Judge


Beltrami County District Court

File No. C6-00-960


Grant J. Merritt, Kalina, Wills, Gisvold & Clar, P.L.L.P., 6160 Summit Drive, Suite 560, Minneapolis, MN 55430 (for appellants)


Susan M. Sager, League of Minnesota Cities, 145 University Avenue West, St. Paul, MN 55103-2044 (for City of Bemidji)


Patrick J. Sweeney, Joann C. Toth, Spence, Ricke, Sweeney & Gernes, P.A., 600 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for Young Excavating, Inc.)


Mike Hatch, Attorney General, Marsha Eldot Devine, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103


Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N




            Respondents were granted summary judgment on the ground that appellants’ action arising out of an improvement to real property was barred by the statute of limitations.  Because we see no genuine issue of material fact and conclude that the district court correctly applied the law, we affirm.


Appellants Al and Jolene Blue, residents of respondent City of Bemidji (Bemidji), allege that their basement was flooded as the result of a dewatering project conducted by respondent Young Excavating, Inc., (Young), on a building site belonging to respondent State of Minnesota (State).  Appellant discovered the flooding on 29 June 1997 and brought this action on 1 July 1999. 

On 8 November 2001, respondents moved for summary judgment on the ground that Minn. Stat. § 541.051 (1996), providing that actions arising out of defective improvements to real property must be brought within two years, barred appellants’ action.  Their motion was granted, and appellants now challenge the summary judgment.[1]


            On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W. 2, 4 (Minn. 1990).  The construction and applicability of a statute of limitations is a question of law, which we review de novo.  Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn. 1998).

            Minn. Stat. §541.051, subd. 1 (1996), provides

(a) * * * [N]o action * * * arising out of the defective and unsafe condition of an improvement to real property * * * shall be brought * * * more than two years after discovery of the injury * * * .

(b) For the purposes of paragraph (a), a cause of action accrues upon discovery of the injury * * *.


It is undisputed that appellants did not bring their action until two years and two days after discovery of the injury.

            At oral argument, appellants conceded that their action arose out of “the defective and unsafe condition of an improvement to real property.”  See Minn. Stat. § 541.051, subd. 1.  Appellants argue, however, that respondents waived their right to invoke the two-year statute of limitations as a defense because they did not specifically raise that defense until they moved for summary judgment.

            Minn. R. Civ. P. 8.03 provides in part:

In pleading to a preceding pleading, a party shall set forth affirmatively * * * [a defense of] statute of limitations.


Minn. R. Civ. P. 15.01, gives a trial court discretion to grant leave to amend pleadings and provides that such leave “shall be freely given when justice so requires.”

            Here, respondents referred implicitly if not explicitly to the statute of limitations in their answers.  Bemidji and State reserved “any other affirmative defenses” and Young asserted that appellants failed to state a claim upon which relief could be granted.  Although it would have been better practice for respondents to raise the statute of limitations defense explicitly in their answers, the district court did not err by addressing the issue on respondents’ motion for summary judgment.

  [G]iven the trial court’s discretion to allow amendment of the pleadings, see Niccum v. Hydra Tool Corp., 438 N.W.2d 96, 98 (Minn. 1989), its consideration of the [statute of limitations] issue on a motion for summary judgment was not erroneous.  Cf. Ericksen v. Winnebago Indus., Inc., 342 F. Supp. 1190, 194 (D. Minn. 1972) (statute of limitation defense may be raised by a motion for summary judgment, to dismiss, or for judgment on the pleadings).


O’Reilly v. Allstate Ins. Co., 474 N.W.2d 221, 223 (Minn. App. 1991).  By deciding that motion, the district court implicitly exercised its discretion to allow respondents to amend their pleadings and affirmatively set forth their statute of limitations defense. 

            We conclude that the district court did not err by granting summary judgment for respondents.



[1] Appellants also challenge the district court’s dismissal of their action for failure to comply with a discovery order. Because our affirmance of the summary judgment renders that issue moot, we do not address it.