This opinion will be unpublished and

may not be cited except as provided by

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






JoAnn Schuster,





Kenneth Welton, individually and

d/b/a Quality Contracting,



Filed August 3, 2004


Harten, Judge


Ramsey County District Court

File No. C6-02-10651


Sidney L. Brennan, Jr., 1013 Ford Road, Minnetonka, MN 55305 (for appellant)


Michael J. Tomsche, Bryan B. Carroll, Tomsche, Sonnesyn & Tomsche, P.A., 610 Ottawa Avenue North, Minneapolis, MN 55422 (for respondent)


            Considered and decided by Minge, Presiding Judge; Harten, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N



            On appeal from adverse summary judgment, appellant argues that the district court erroneously determined that her negligence action arose out of the defective and unsafe condition of an improvement to real property that occurred during reroofing and therefore was barred by the two-year limitation under Minn. Stat. § 541.051.  Because appellant’s injury was caused by an improvement to her real property, we affirm.


            In 1980, appellant Joanne Schuster purchased a townhouse.  In 1997, respondent Kenneth Welton d/b/a Quality Contracting was hired by appellant’s townhouse association to replace the roofs on the townhouse units.

            In early spring of 1999, appellant first noticed water leaking down the exterior wall of her townhouse near her front door.  The water did not appear to run out of the soffits, and it created a brown spot on the ground below.  Eventually that leak stopped, but two water spots appeared in her ceiling.  Appellant called the townhouse association president and maintenance worker repeatedly through the summer of 1999.  Eventually, they inspected appellant’s townhouse unit with respondent and told appellant that the roofer had inspected the roof and found no problems.

            In January 2000, appellant filed a claim with her insurance company.  In February 2000, the water began to drip down the exterior wall again.  Again, she immediately contacted the association president and maintenance worker and told them that “[she] had never had any water damage in the 20 years that [she] lived in this house, informed him that there must be something wrong with the new roof.”  Respondent inspected her home in February 2000; he told her that the ceiling was wet and that the sheetrock was collapsing, but found nothing wrong with her roof.  Roughly one week later, appellant had a contractor look at the house.  Appellant looked into the attic with the contractor and found that everything was wet.  The contractor returned in March 2000 and discovered that some cardboard tubing in the attic had collapsed because it was wet.  The contractor put fans in the attic to dry it out, but never went near the chimney.

            On 10 January 2001, appellant hired another roofer to look at the attic and roof.  The roofer told her that respondent had removed the furnace vent pipe when replacing the roof, but did not properly replace the pipe.  The roofer repaired the furnace vent pipe, and the water stopped leaking.

            In March 2002, appellant initiated this suit against respondent, claiming that respondent negligently failed to properly connect the furnace vent pipe in her roof.[1]  In June 2003, respondent moved for summary judgment, claiming that appellant’s claim was barred because the two-year statute of limitations under Minn. Stat. § 541.051, subd. 1 (2000), had tolled.  The district court granted summary judgment for respondent, which appellant now challenges.


            On appeal from summary judgment, a reviewing court asks (1) whether any genuine issues of material fact exist and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  Appellant argues that the district court erred by applying the statute of limitations under Minn. Stat. § 541.051, subd. 1 (2000), to bar her claim.  On appeal, evidence is viewed in a light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  The construction and applicability of a statute of limitation is a question of law, which is reviewed de novo.  Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn. 1998).

            Actions to recover for damages to property “arising out of the defective and unsafe condition of an improvement to real property” must be brought within two years after the discovery of the injury.  Minn. Stat. § 541.051, subd. 1.  An improvement to real property has been defined as “a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.”  Taney v. Indep. Sch. Dist. No. 624, 673 N.W.2d 497, 504 (Minn. App. 2004) (quotation omitted), review denied (30 Mar. 2004).  Courts use 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. 27 Oct. 1994).

Appellant concedes that the new roof installed on her property constitutes an improvement to the property.  She argues that the disconnection of her furnace vent pipe did not arise from the condition of the improvement, but from the respondent’s negligence while performing the improvement.  Appellant analogizes this case to Wiita v. Potlatch Corp., 492 N.W.2d 270 (Minn. App. 1992), to support her argument.  In Wiita, construction workers were injured when cement blocks fell from a crane; the injury took place during the construction process.  Id. at 270.  In Witta, the two-year statute of limitations did not apply because the crane was not part of the improvement and because the injury “arose, not from the condition of the improvement, but from the defective condition or negligent operation of the crane.”  Id. at 272.  Here, appellant’s water leak did not take place until after the new roof had been completed; the injury did not take place during the re-roofing process.  In addition, the record reveals that the leak arose from the condition of the completed new roof, which included a disconnected furnace vent pipe.  Respondent’s answers to interrogatories indicate that, although the furnace vent pipe was not replaced as part of the re-roofing process, the pipe was incorporated into the new roof:

8.         With reference to the furnace roof vent pipe/stack involved, please state:


a)         How it was removed;

b)         Explain how it was re-attached.


ANSWER:      The roof was re-shingled without the removal of the furnace vent/pipe.  [Respondent] removed the nails around the jack for the furnace vent/pipe.  The shingles were then placed underneath the jack and cut to fit.  The collar, the jack and furnace vent/pipe were not removed.

Because the leaking water resulted from condition of the improvement to her townhouse, the district court properly applied the two-year statute of limitations under Minn. Stat. § 541.051, subd. 1.

            Appellant argues that, even if the two-year statute of limitations applies, the district court erred by making a factual determination as to the date the injury was discovered.  The function of the district court on a motion for summary judgment is to determine whether any genuine issues of material fact exist, rather than weighing the evidence and deciding issues of fact.  DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997).  But a district court may make factual conclusions where no genuine issues of material fact exist because “reasonable persons could not draw different conclusions from the evidence presented.”  Id.  Here, the district court concluded that appellant had knowledge of the water damage to her townhouse no later than January 2000.  The district court relied on several undisputed facts: (1) in the spring of 1999, appellant began to notice water running down her exterior wall; (2) in April 1999, she reported the problems to the townhouse association president; (3) in January 2000, appellant filed a claim with her insurance company; (4) in February 2000, she told the townhouse association president that the problem had to be the roof because she never had any problems before the reroofing; and (5) in March 2000, she asked a contractor to determine the cause.  The undisputed facts establish that appellant had, or should have had, knowledge of the water damage by January 2000; she brought her action against respondent on 19 March 2002.

Appellant argues that the statute of limitations did not begin to run until 10 January 2001, when she discovered that the furnace vent pipe was not properly attached.  But “the statute of limitations begins to run when an actionable injury is discovered or, with due diligence, should have been discovered, regardless of whether the precise nature of the defect causing the injury is known.”  Dakota County v. BWBR Architects, Inc., 645 N.W.2d 487, 492 (Minn. App. 2002); see also Vlahos v. R & I Constr. of Bloomington, Inc., 676 N.W.2d 672, 677 (Minn. 2004) (comparing “discovery of the injury” in the limitation under Minn. Stat. § 541.051, subd. 1 to “discovery of the breach” in the limitation under Minn. Stat. § 541.051, subd. 4).  Although appellant did not know the cause of the leaking water until 2001, the undisputed facts reveal that she was aware of the water damage by January 2000.  Therefore, we conclude that the district court properly determined that the statute of limitations under Minn. Stat. § 541.051, subd. 1, barred appellant’s claim and granted summary judgment dismissing appellant’s negligence action.


[1] Although respondent was not actually served with the summons and complaint until 2 May 2004, appellant delivered the documents to the sheriff’s department on 19 March 2002.  See Minn. R. Civ. P. 3.01(c) (civil action is commenced when the summons is delivered to the sheriff in the defendant’s county of residence and actual service occurs within 60 days thereafter).