This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).








John Collopy,



Beverly Fiedler,





Colson Construction, Inc.,

defendant and third party plaintiff,





Mark Entsminger, d/b/a Mark's Stucco; et al.

Third-Party Defendants.



Filed December 2, 2003


Robert H. Schumacher, Judge


Hennepin County District Court

File No. 0015233



Richard A. Lind, William L. Davidson, Lind, Jensen, Sullivan & Peterson, P.A., 150 South Fifth Street, Suite 1700, Minneapolis, MN 55402 (for appellant)


John E. Varpness, Gislason, Martin & Varpness, P.A., 7600 Parklawn Avenue South, Suite 444, Edina, MN 55435 (for respondent)



            Considered and decided by Randall, Presiding Judge; Schumacher, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


Beverly Fiedler appeals from the summary judgment awarded to respondent Colson Construction, Inc., arguing her statutory warranty claims are not time barred under Minn. Stat. § 541.051 (2002).  She also argues that the summary judgment was inappropriate because genuine issues of fact exist regarding whether Colson Construction is equitably estopped from asserting a statute of limitations defense.  We affirm.


In 1994, Fiedler and her husband, John Collopy, contracted with Colson Construction to build a home.  The purchase agreement was later amended, making Fiedler the sole purchaser.  Although Collopy was a plaintiff below, he no longer retains an interest in the outcome of this case.  The home was completed in October 1994.

Shortly after moving in, Fiedler and Collopy began noticing water leakage.  They first noticed water seeping into the house around a large window system in the main floor.  Then in the spring of 1995, they noticed water in the heating ducts running under their lower-level floor slab.  Finally, later in 1995, they also noticed water intrusion in the lower-level bathroom and a walk-out.

Before Fiedler and Collopy instituted this lawsuit, multiple parties made attempts to remedy the problems.  From 1995 until 1997, Colson Construction, either through its employees or through contractors operating at its request, made numerous attempts to repair the water intrusion problem.  Colson Construction's final attempt occurred in July 1998, when Louis Colson requested Bruce Varner, d/b/a Master Heating and Cooling, to return to Fiedler's home to address the water in the heating ducts.   

On August 10, 2000, Fiedler and Collopy sued Colson Construction, alleging 1) negligent construction of their home, 2) breach of the contract between the parties, 3) breach of the contractual warranties, and 4) breach of the statutory warranties.  In April 2002, Colson Construction filed a motion for summary judgment, alleging there was no genuine issue of material fact because Minn. Stat. § 545.051 barred all of their claims.  The district court granted Colson Construction's motion for summary judgment. 


On appeal from a summary judgment, this court determines whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  Odenthal v. Minn. Conference of Seventh-Day Adventists, 649 N.W.2d 426, 429-30 (Minn. 2002).  This court will affirm a summary judgment if it can be sustained on any ground.  Winkler v. Magnuson, 539 N.W.2d 821, 828 (Minn. App. 1995), review denied (Feb. 13, 1996).  Summary judgment is appropriate if the evidence, when viewed in a light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and judgment is appropriate as a matter of law.  Odenthal, 649 N.W.2dat 429.  In order to defeat a motion for summary judgment the nonmoving party "must do more than rest on  mere averments."  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  Rather, the nonmoving party must present evidence that is "sufficiently probative with respect to an essential element of the nonmoving party's case to permit reasonable persons to draw different conclusions."  Id.

Fiedler argues Minn. Stat. § 541.051, subd. 4, and not Minn. Stat. § 541.051, subd. 1, provides the proper limitation, and according to general statutory construction principles, "discovery of the breach" in subdivision 4 must refer to something different from "discovery of the injury" used in subdivision 1.

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, 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.


Minn. Stat. § 541.051, subd. 1(a) (2002) (emphasis added).  But "[t]his section shall not apply to actions based on breach of the statutory warranties set forth in section 327A.02, or to actions based on breach of an express written warranty, provided such actions shall be brought within two years of the discovery of the breach."  Id., subd. 4 (emphasis added).  While we agree discovery of the breach in this case occurred at a date later than discovery of the injury, we conclude the distinction is irrelevant in this case. 

Even if discovery of the breach did not occur until Fiedler "discovered or should have discovered that Colson Construction was unable or unwilling to maintain and provide her a new home free from defects," as Fiedler would have us conclude, she has failed to present any evidence that the discovery occurred within two years of commencing this lawsuit.  The lawsuit was commenced on August 10, 2000, when Colson Construction was served with the summons and complaint.  See Minn. R. Civ. P. 3.01(a) (stating civil action is commenced "when the summons is served upon that defendant").  Fiedler must present sufficiently probative evidence to permit reasonable persons to draw different conclusions whether she knew or should have known Colson Construction breached its warranties before August 10, 1998.  Mere averments that she did not discover the breach until late August 1998 are not sufficient to defeat summary judgment. 

According to Collopy's deposition, at some point in 1998, Louis Colson, the president of Colson Construction, stopped responding to Fiedler and Collopy, refusing to return their phone calls.  Working backwards from dates Collopy did know, the latest date Fiedler and Collopy knew they were "on their own" was July 1998.  Furthermore, according to Fiedler's deposition, she had no communication with Colson Construction in 1998.  Thus, the latest Fiedler knew or should have known Colson Construction breached its warranties is July 1998.  We conclude Fiedler failed to file her claims in a timely manner under Minn. Stat. § 541.051 and therefore summary judgment for Colson Construction was proper as a matter of law.

Fiedler also argues Colson Construction should be estopped from asserting a statute of limitations defense for any of her claims.  Estoppel is an equitable doctrine that is intended to prevent a contractor from "taking unconscionable advantage of his own wrong by asserting his strict legal rights."  Mut. Serv. Life Ins. Co. v. Galaxy Builders, Inc., 435 N.W.2d 136, 140 (Minn. App. 1989) (citation and quotation omitted), review denied (Minn. April 19, 1989).  A party seeking to invoke the doctrine of estoppel has the burden of proving three elements: (1) that promises were made; (2) that it reasonably relied upon the promises; and, (3) that it will be harmed if estoppel is not applied.  Hydra-Mac, Inc. v. Onan Corp., 450 N.W.2d 913, 919 (Minn. 1990).  We find no evidence in the record that any promises were made to Fiedler or Collopy by any representative of Colson Construction outside of the construction contract.  We affirm the summary judgment entered in favor of Colson Construction.