This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-96-1128

Steven P. Sjostrom, et al.,

Appellants,

vs.

Luxury Homes, Inc.,

Respondent.

Filed December 10, 1996

Affirmed

Schumacher, Judge

Dakota County District Court

File No. C3956503

Steven J. Vodonik, 1200 West 79th Street, Minneapolis, MN 55420 (for Appellants)

Loren M. Solfest, Severson, Sheldon, Dougherty & Molenda, P.A., 7300 West 147th Street, Suite 600, Apple Valley, MN 55124-7538 (for Respondent)

Considered and decided by Norton, Presiding Judge, Schumacher, Judge, and Forsberg, Judge.[*]

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Steven P. and Denise M. Sjostrom appeal from a judgment, arguing the trial court erred in not addressing their claim for breach of contract against respondent Luxury Homes, Inc. We affirm.

FACTS

On January 28, 1992, the Sjostroms entered into a purchase agreement for a new house with Luxury Homes. During that winter and spring, the foundation footing and basement walls cracked, causing damage throughout the house. It was later determined that the house was built at a lower elevation than specified in the original plat drawing. The Sjostroms took possession on April 20, 1992.

In early May 1992, the Sjostroms made a claim against their structural warranty insurer, Builders Structural Services, Inc. (BSS), for damages to the house. BSS denied coverage and entered non-binding arbitration. The arbitrator decided in BSS's favor, concluding the foundation had not "failed" under the terms of the policy.

On July 29, 1992, the Sjostroms sent Luxury Homes the first of three lists of requested repairs. The lists detailed numerous claimed defects in the house, including the cracked foundation, and mud and water damage. Luxury Homes repaired some of the items on the lists but stopped the repairs in March of 1993 when the Sjostroms threatened legal action.

In late 1993 or early 1994, the Sjostroms brought a declaratory judgment action against BSS, alleging coverage under the policy. The trial court concluded there was coverage because the lower elevation of the basement footings and walls was a "major construction defect" as defined by the policy and Minn. Stat. § 327A.01, subd. 5 (1994). As a result, BSS paid for reinforcing the foundation footing and basement wall. The house, however, was not raised to the proper elevation.

The Sjostroms subsequently brought actions against Luxury Homes for breach of contract and warranty of workmanship. Luxury Homes moved for summary judgment. The trial court granted partial summary judgment on the breach of contract issue only, concluding the structural problems had been repaired and reimbursed by the insurance policy with BSS. The trial court concluded there were "no genuine issues of material fact regarding the fact that the house sits too low." The breach of warranty of workmanship claim was allowed to proceed to trial.

After a court trial, the court held that Luxury Homes had breached its warranty of workmanship and awarded damages for the uncompleted repair list items. The trial court did not address the issue of whether Luxury Homes was responsible for building the house at too low an elevation because the court noted that the issue had been dealt with on partial summary judgment. The Sjostroms appeal.

D E C I S I O N

1. The Sjostrom's argue that the trial court erred in refusing to address their claim against Luxury Homes for the diminution in value of their home because the diminution issue is separate from the major construction defects issue dismissed on partial summary judgment.

We agree the issues are distinct, but affirm the trial court because the trial court granted summary judgment for both issues. The trial court concluded that

there are no genuine issues of material fact * * * regarding * * * [the Sjostrom's] claim of liability for major construction defect or damage to the premises specifically including, without limitation, the basement floor and walls, and the diminished fair market value of the property.

(emphasis added). The diminution in value issue was addressed and dismissed by the trial court on partial summary judgment.

2. The Sjostrom's argue that if the diminution in vlaue issue was addressed, then the trial court erred in granting partial summary judgment. On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the lower court erred in the application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The evidence must be viewed in the light most favorable to the one against whom summary judgment was granted. Abdallah, Inc. v. Martin, 242 Minn. 416, 424, 65 N.W.2d 641, 646 (1954).

Here, the Sjostrom's agree that BSS made and paid for repairs to the foundation. There is no evidence of continued problems with the foundation and basement wall. The Sjostrom's have presented no evidence of any continuing damages because the foundation sits too low nor have they presented any probative evidence that the value of their house has decreased because of the lower foundation.

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.