This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Ellen Feuling, et al.,
The City of Plymouth,
Bonestroo, Rosene, Anderlik & Associates, et al.,
Hennepin County District Court
File No. PD 04-19103
Brian N. Steele, Steele & Associates, 8421 Wayzata Boulevard, Suite 320, Golden Valley, MN 55426 (for appellant)
Thomas M. Scott, Campbell Knutson, Professional Association, 1380 Corporate Center Curve, Suite 317, Eagan, MN 55121 (for respondent)
Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Minge, Judge.
Appellants challenge the dismissal of their claims arguing that the doctrine of discretionary immunity and the statutes of limitations and repose in Minn. Stat. § 541.051 (2004) do not bar their claims. We affirm.
Feuling is the owner of her home located at
1987, respondent City of
The city hired a private engineering firm to prepare plans to modify the drainage south of the Property. In the fall of 1992, two new culverts were installed and the elevation of a dike was raised. In 1995, appellant Feuling’s front yard and garage were flooded, and she again complained to the city.
Appellant Feuling stated that her property continued to flood at least twice each year from 1995 through 2003. The flooding substantially interfered with her enjoyment of the property, killed trees, destroyed her gardens, and created sink holes. In 2002, the city “ear-marked” $200,000 to purchase appellant Feuling’s home. Appellant Feuling stated in her affidavit that the city told her “[it] believed [it] could solve the flooding problems and would instead spend these funds to modify its drainage system and construct a permanent pumping station on [her] property . . . by the spring of 2003.”
June 24-25, 2003, over six inches of rain fell in less than 12 hours in the
Appellants commenced this litigation on April 23, 2004, against both the city and the private engineering firm, alleging negligent employment, negligent maintenance, negligent development, nuisance, trespass, negligent design, negligent failure to assure compliance, and inverse condemnation. The parties stipulated to consolidation of the cases and dismissal of claims against the engineering firm. The city moved for summary judgment on the basis of discretionary immunity and the statute of repose. The district court granted respondent’s motion. Feuling and Okoh appeal.
“On an appeal from
summary judgment, we ask two questions: (1) whether there are any genuine
issues of material fact and (2) whether the [district] court erred in [its]
application of the law.” State by Cooper v. French, 460 N.W.2d 2,
The first issue is
whether the district court correctly entered summary judgment against appellants’
claims because of discretionary government immunity. The
There are two
types of discretionary functions: planning
level and operational level. Steinke v. City of
unit is only entitled to immunity when “it can produce evidence” that its
actions were the result of planning and policy-making and it has the burden of
proving that it engaged in protected planning-level activities and is entitled
to immunity. Conlin, 605 N.W.2d at 402 (quotation omitted). The court must “identify the conduct at
issue” before it can determine whether it is protected.
1. Negligent Employment
This court has
held that “[h]iring, supervising, training, and retaining municipal employees
are policy-level activities that are protected by statutory immunity.” Fear v.
Indep. Sch. Dist. 911, 634 N.W.2d 204, 212 (
2. Negligent Maintenance
In Christopherson, a city’s sewer system
was unable to keep up with flash flooding that “was so extensive that the lift
stations could not accommodate the excess water draining into the sewers. Although the sanitary-sewer-lift stations
operated properly, some could not keep up with rainfall.”
Here, the city attempted to improve the system in 1992 after contracting for an analysis by an engineering firm. In 1995, appellant Feuling experienced flooding and knew that the improvement had not resolved the flooding. Thereafter, from 1995 until 2002, the city used temporary equipment to manually pump the excess water to avoid flooding. The city then considered purchasing appellant Feuling’s property or constructing a permanent pumping station on her property. In 2003, the city told appellant that it would construct a permanent pumping station that would improve the problem. As a result, appellant Feuling did not attempt to sell her home.
Like the city in Christopherson,
3. Negligent Failure to Control Development
district court determined that this was a claim that the city wrongfully issued
building permits. Appellants do not
disagree with this characterization. The
Minnesota Supreme Court has held that “the issuance of a building permit is a
discretionary act and . . . municipalities
are immune from tort liability for issuing permits.” Vrieze
v. New Century Homes, Inc., 542 N.W.2d 62, 66 (
4. Nuisance, Trespass, and Negligent Design
city argues that appellants’ claims for nuisance, trespass, and negligent
design all arise out of its decisions about the construction and design of the
1992 improvement. Discretionary immunity
protects the government when its conduct was of a policy-making nature
involving social, political, or economic consideration. Christensen
second issue is whether the district court erred in granting summary judgment
dismissing appellants’ claim for compensation for inverse eminent domain.
Here, appellants’ claims based on the 2003 extraordinary rainfall were not reasonably anticipated. That rainfall event exceeded the hundred-year design standard. It is unreasonable to subject local government or anyone to liability for events that are not foreseeable. Based on the facts in this case, we conclude appellants’ damage is not compensable through an inverse eminent domain claim.
city also raised a statute-of-limitations defense. If not timely initiated, an inverse eminent
domain claim is barred by statutory limitation periods. See
11A Eugene McQuillin, Municipal
Corporations § 32.133 (3rd ed. 2000).
The construction and applicability of a statute of limitations is a
question of law subject to de novo review.
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 . . . 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.
Minn. Stat. § 541.051, subd.
1(a) (2004) (emphasis added). For
purposes of the statute of limitations and statute of repose, “a cause of
action accrues upon discovery of the injury.”
The district court barred appellant Feuling’s claim of inverse condemnation, among others, because it found that: (1) the improvements that allegedly resulted in the taking of her property were substantially completed in 1992; (2) appellant Feuling’s claim accrued in 1995 when she noticed a marked difference in the frequency and volume of flood events; (3) the two-year statute of limitations provided in section 541.051 began to run in 1995; (4) the city did not make assurances that appellant could rely on until 2002; and (5) appellant Feuling did not file her claims until 2004.
Appellants argue to this court that actions the city took to manually pump out water from 1995 until 2002 were assurances that equitably estop the city from raising a defense based on the statute of repose or limitations. See, e.g., Rhee v. Golden Home Builders, Inc., 617 N.W.2d 618, 622 (Minn. App. 2000) (reversing summary judgment on the ground that there was a genuine issue of material fact as to whether the builder was estopped from asserting a statute-of-limitation defense because of his repeated, but failed, attempts to repair leaks in the home and his continued assurances to the homeowners); United States Leasing Corp. v. Biba Info. Processing Servs., Inc., 436 N.W.2d 823, 826 (Minn. App. 1989), review denied (Minn. May 24, 1989).
This court summarized the rule regarding estoppel as follows:
1. There must be conduct–acts, language or silence–amounting to a representation or a concealment of material facts. 2. These facts must be known to the party estopped . . . . 3. The truth concerning these facts must be unknown to the other party claiming the benefit of estoppel, at the time when such conduct was done, and at the time when it was acted upon by him. 4. The conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon . . . . 5. The conduct must be relied upon by the other party, and, thus relying, he must be led to act upon it. 6. He must in fact act upon it in such a manner as to change his position for the worse . . . .
Rhee, 617 N.W.2d at 621-22 (quotation omitted).
Appellants represent that the city’s staff promised that the 1992 modifications would reduce flooding and keep water from their homes, that they regularly plugged culverts to minimize backflow and manually pumped excess water, and that in 2001, 2002, and 2003, the city’s staff promised that the city would either purchase the Property or construct a permanent pumping station and that all these activities constituted ongoing acts that estopped the city from raising the limitations defense. However, at the same time appellants represent that from 1995 to 2003, the backyards continued to flood a minimum of twice a year. The frequency and severity of the flooding continued to grow each year.
Appellants never alleged or argued to the district court any specific assurances that the city made to them between 1995 and 2000 that it would repair the old system or construct a new one. Rather, according to appellant Feuling, the city promised her that it was “always ready to manually pump” water and that water would never reach appellant’s backyard walk-out again. Appellant Feuling states that during that period, the flooding “substantially interfered” with her use of her backyard, and that she “continued to demand that the city do something to remedy the problem throughout this period.” Based on Feuling’s own statements, the problems were apparent and appellants knew the city’s efforts were inadequate. The facts alleged by appellants undermine their estoppel argument.
On this record, the district court did not err by granting summary judgment on claims allegedly arising from the 1992 and earlier improvements because at the latest, appellant Feuling discovered her injuries resulting from the claims in 1995, and respondent made no assurances nor performed any actions to entirely remedy the problem until at least 2001. Although the city’s efforts to address the situation were laudable, they do not revive a claim that is already time-barred. The two-year statute of limitations under section 541.051 applies and the claims were properly dismissed.
Appellant Okoh filed an identical complaint against respondent with regard to the 1992 improvement and 2003 flood event. The district court noted that appellant Okoh brought her claims on December 27, 2004, but the 1992 improvement was substantially completed before December 1992. Her claims for inverse condemnation were time-barred by the 10-year statute of repose and the 2-year statute of limitations. There is no evidence that respondent had made assurances to appellant Okoh that might trigger equitable estoppel. Accordingly, we conclude the district court did not err by dismissing appellant Okoh’s claims.
Although appellants present a sympathetic case for compensation, judicial relief is limited by the statutes providing for discretionary immunity and limiting time for bringing actions. Such limits do not preclude voluntary municipal relief.
 Although the record before the district court was not fully developed with regard to appellant Okoh, the claims in her complaint are identical to those of appellant Feuling and we consider them jointly. Unless otherwise noted, we will assume that the factual setting for her claim parallels that of appellant Feuling.
 Although appellants allege that another important factor was the failure by the city personnel to clean debris from the system, they presented no evidence on that point. Although such a maintenance failure may not be discretionary and protected by immunity, without an evidentiary basis for this claim in the record, the district court properly granted summary judgment.