This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Ngoan Van Dang, et al.,
Crist Construction, Inc.,
Defendant and third-party plaintiff,
Kerry D. Nelson, d/b/a S & K Stucco, Inc.,
J.R. Concrete & Masonry, Inc.,
Andersen Windows, Inc.,
Steven M. Johnson,
d/b/a Quality Construction Roofing Specialist,
Filed July 17, 2007
Affirmed in part, reversed in part, and remanded
Washington County District Court
File No. C4-05-5723
Robert T. Scott, Vincent F. Waters, Waters & Scott, PLLP, 2040 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellants)
Louise A. Behrendt, James D. Knudsen, Stich, Angell, Kreidler & Dodge P.A., 250 Second Avenue South, Suite 120, Minneapolis, MN 55401 (for respondent Crist Construction, Inc.)
Kerry D. Nelson,
Scott D. Lake, Lake Law Firm, LLC, 18621 Hobby Hills Trail, Prior Lake, MN 55372 (for respondent J.R. Concrete & Masonry, Inc.)
Neal J. Robinson, Conley, Peterson & Borgeson, 2550 University Avenue West, Suite 220-S Court International, St. Paul, MN 55114 (for respondent Andersen Windows, Inc.)
Steven M. Johnson, Quality Construction Roofing Specialists,
Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Parker, Judge.*
challenge the district court’s grant of summary judgment, dismissing their
claims for breach of statutory warranty, breach of contract, and common law
negligence, arguing that the court erred in concluding that a breach of
claim was barred for failure to comply with the six-month notice requirement of statute, and the contract and tort claims were barred by the applicable statute of limitations. Because the district court erred in concluding that appellants’ breach of statutory warranty claim was barred by the six-month statutory notification requirement, but correctly determined that appellants’ breach of contract and negligence claims were barred by the applicable statute of limitations, we affirm in part, reverse in part, and remand.
Appellants Ngoan Van Dang and My-Dung Nguyen, husband and wife, are the original owners of a home located in Woodbury, which they purchased from respondent Crist Construction in 1994. In 2002, at the suggestion of a neighbor who had experienced moisture intrusion problems with his home, appellants hired Private Eye, Inc. to perform a moisture survey of their home. Private Eye conducted a survey in June 2002, and inspected 12 sites of the exterior of the house. It identified six sites as needing “repairs and/or modifications . . . to protect the home from moisture.” The report concluded:
You have one or more areas showing signs of excessive moisture intrusion and soft or damaged sheathing. These areas should be opened up and explored further to determine if any structural damage is present.
You have one or more areas of moderate moisture intrusion without signs of structural damages. You may attempt to stop the moisture intrusion by chalking, sealing, or adding missing flashing.
The report noted that kick-out flashing, which is necessary to prevent water from entering the interior wall of the house, was missing at several locations and needed to be installed. Private Eye also observed that the stucco was installed below grade or within six inches of grade, which could result in moisture “wicking” up from the soil and entering into the walls of the building. It recommended that the stucco be trimmed to six or eight inches above the existing grade of the property.
Private Eye also reported that several locations of the house had moisture readings in excess of 20% which may indicate active mold growth. It stated “[s]ince some molds can cause severe health problems you should consider testing for the presence of elevated mold spores in your home.” Finally, the report stated, “We suggest that a follow-up inspection be completed in six to twelve months after all repairs are completed to ensure that the corrections are working to prevent moisture intrusion.”
then contacted the City of
Appellant also contacted
the Minnesota Department of Commerce.
Subsequently, appellants received a letter dated October 16, 2002, from
Zurich North America, Crist’s liability insurance company, which stated that
In March 2003, Claims Management Consulting, Inc. sent appellants a letter stating that it was “handling the investigation pertaining to the claim being made against our insured, Christ [sic] Construction, Inc.” The agent visited appellants home later that spring, took some photographs, and conducted a visual inspection.
appellants heard nothing further from respondent,
Appellants served respondent with a complaint in March 2005 alleging breach of warranty, breach of contract, and negligent design and construction. In April 2006, respondent moved for summary judgment. Following the hearing, the district court filed its order determining that appellants failed to satisfy the six-month written notice requirement of Minn. Stat. § 327A.03(a) (1994) with regard to their statutory warranty claim, and failed to file their breach of contract and negligence claims before the statute of limitations, Minn. Stat. § 541.051, subd. 1 (2000), had run. This appeal follows.
D E C I S I O N
Appellants argue that
the district court erred in concluding that their claim for breach of warranty
is barred by their failure to comply with the six-month statutory-notification
requirement under Minn. Stat. § 327A.03 (1994).
“A motion for
summary judgment shall be granted when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue of material fact and that either party is
entitled to a judgment as a matter of law.” Fabio v.
Bellomo, 504 N.W.2d 758, 761 (
To survive summary judgment,
a party need not show substantial evidence; it must only produce sufficient
evidence to permit reasonable persons to draw different conclusions. Schroeder
“[w]hen reasonable minds can differ about when the injury was discovered, summary judgment is inappropriate because the issue should be left to the trier of fact.” Lake Superior Ctr. Auth. v. Hammel, Green & Abrahamson, Inc., 715 N.W.2d 458, 472-73 (
that respondent breached its statutory warranty under Minn. Stat. § 327A.02,
subd. 1(c) (1994), that “during the ten-year period from and after the warranty
date, the dwelling shall be free from major construction defects.” A “major construction defect” in the
statutory new-home warranty is defined as “actual damage to the load-bearing
portion of the dwelling” occurring during and after the completion of
[L]oss or damage not reported by the vendee or the owner to the vendor or the home improvement contractor in writing within six months after the vendee or the owner discovers or should have discovered the loss or damage.
See also Peterson v. Johnson, ___ N.W.2d. ___, ___ 2007 WL 1816276, at *2 (Minn. App. June 26, 2007) (stating that Minn. Stat. § 327A.03(a) limits vendor liability in home-warranty disputes if the loss or damage is not reported in writing within six months after the owner discovers, or should have discovered, the loss or damage).
The district court concluded that the Private Eye report put appellants on notice of possible structural damage to their house, that appellants failed to provide written notice within six months after they received the Private Eye report and, therefore, their claim was barred. Appellants assert that the Private Eye report did not put them on notice of loss or damage. We disagree.
The Private Eye report identified, among other things, six areas of the house as in need of repair or modification, one or more areas of “moisture intrusion and soft or damaged sheathing” that should be explored “to determine if any structural damage is present,” and several areas of the house that had moisture readings in excess of 20%, which may indicate “active mold growth.” The report concluded that the house should be reinspected after the repairs were completed. On this record, we conclude that the Private Eye report was sufficient to put appellants on notice of a claim of loss to the property.
Appellants next argue that respondent waived its right to receive written notice under Minn. Stat. § 327A.03(a) for the loss or damage to their house. Specifically, appellants contend that appellants’ conversation with respondent’s president, together with the October 2002 letter from Zurich North America, acknowledged notice of their claim and, therefore, waived the right to receive written notice under the statute.
Waiver is a
“voluntary and intentional relinquishment of a known right.” Illinois
Farmers Ins. Co. v. Glass Serv. Co., 683 N.W.2d 792, 798 (
waiver is ordinarily a question of fact for the jury. It is only where there is but one inference which can be drawn from the facts that the question of waiver becomes one of law. The general rule seems to be that where different inferences may be drawn waiver must be resolved as a fact question by the jury.
that there is no evidence that it “impliedly authorized
doctrines allow a third party to infer that a presumptive agent is acting on
behalf of a principal: apparent authority and agency by estoppel. “Apparent authority to do an act is created
as to a third person by written or spoken words or any other conduct of the
principal.” Hagedorn v. Aid Ass’n for Lutherans, 297
Under the doctrine
of agency by estoppel, if the principal places an agent in such a situation
that a third person is justified in assuming that the agent has authority to
perform a particular act and deals with the agent on that assumption, the
principal is estopped from denying the agent’s authority. See
The district court
concluded that there was “no evidence that [respondent] expressly or impliedly
Please allow this correspondence to acknowledge recent notice from Crist Construction Inc. of a claim relating to [appellants’ home]. We maintain a Commercial General Liability (“CGL”) policy on behalf of Crist Construction Inc., with effective dates from May 1, 1997, through May 1, 2002. It will be necessary that the CGL carriers for Crist Construction Inc. prior to and after our policy effective dates be put on notice and immediately involved in this matter and we will work with Crist Construction Inc. to make sure that is done.
through its insurer, acknowledged that it had received notice of the claim, that
respondent had a CGL policy through
that respondent is estopped from asserting that the claim is barred for failure
to comply with the notice requirement of Minn. Stat. § 327A.03(a). Respondent argues and that there was no
agency relationship between respondent and
prevents the assertion of otherwise valid rights where one has acted in such a
way as to induce another party to detrimentally rely on those actions. Drake
v. Reile’s Transfer & Delivery, Inc., 613 N.W.2d 428, 434 (
district court concluded that appellants failed to present sufficient evidence
of equitable estoppel. Based on our
previous analysis, the relevant inquiry is whether appellant’s conversation
with respondent’s president and
We also observe that the parties did not argue before the district court or on appeal whether the two-year statute of limitations under Minn. Stat. § 541.051, subd. 4 (2000), bars appellants’ warranty claims, and, therefore, we do not reach that issue.
that the district court erred in concluding that the breach of contract and
negligence claims were barred by Minn. Stat. § 541.051, subd. 1 (2000), because
equity required that the statute of limitations be tolled. On appeal from summary judgment, we review de novo whether
there are any genuine issues of material fact and whether the district court
erred in applying the law. STAR Ctrs., Inc.,644 N.W.2d at 77. Construction
and applicability of a statute of limitations is a question of law, which we
review de novo. Benigni v.
§ 541.051, subd. 1, states that no action “arising out of the defective
and unsafe condition of an improvement to real property” shall be brought
against the builder or contractor after two years of the discovery of the
injury. See also Dakota County v. BWBR Architects, 645 N.W.2d 487, 492 (
The district court
did not specifically address this issue.
Appellants admit that neither respondent nor
do observe, however, that even if the court were to adopt such a rule, the
facts of this case preclude any finding that appellants “reasonably relied” on
Affirmed in part, reversed in part, and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
applicable statutory warranty accrued in 1994, the date when the construction
of appellant’s home was completed. Thus,
the appropriate statutory warranty is Minn. Stat. § 327A.02, subd. 1(c)
(1994). The law was amended and
clarified in 2001 to warrant that a dwelling shall be free from major
construction defects “due to noncompliance with building standards.” See 2001
 The applicable statute of limitations is the version in effect when the Private Eye report was conducted in June 2002.