This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-1830

Miles Q. Fiterman,

Appellant,

v.

Fairways of West Oaks Limited Partnership,

Respondent,

Paragon Designers and Builders Corporation, et al.,

Respondents,

and

Paragon Designers and Builders Corporation, et al.,

third-party plaintiffs,

Respondents,

Fairways of West Oaks Limited Partnership,

third-party plaintiff,

Respondent,

v.

Braun Intertec Corporation d/b/a

Braun Intertec Engineering a/k/a

Braun Engineering Testing, Inc.,

third-party defendant,

Respondent.

Filed January 28, 1997

Affirmed

Huspeni, Judge

Hennepin County District Court

File No. 952064

James D. Hoeft, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Blvd., Minneapolis, MN 55433 (for Appellant)

Bradley J. Betlach, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Respondent Fairways of West Oaks Ltd. Partnership)

Gerald L. Svoboda, Holly A.R. Hart, Julie A. Doherty, Fabyanske, Svoboda, Westra & Hart, Suite 1100, 920 Second Avenue South, Minneapolis, MN 55402 (for Respondent Paragon Designers and Builders Corporation, et al.)

Considered and decided by Norton, Presiding Judge, Huspeni, Judge, and Foley,[*] Judge.

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

HUSPENI, Judge

Appellant seeks reversal of the district court's grant of summary judgment in favor of respondents. Because there are no material facts in dispute, and because the district court did not err in its application of the law, we affirm.

FACTS

On August 14, 1989, appellant Miles Q. Fiterman contracted with respondent Fairways of West Oaks (Fairways) to purchase a parcel of land for the purpose of having a home built upon it. Pursuant to the contract, the home was to be built by respondent Paragon Designers and Builders (Paragon). Appellant hired his own architect and structural engineer to design the house and prepare the plans and specifications. Construction was completed in early 1991.

Sometime in the spring of 1991, appellant found water in his basement. There was standing water in a number of rooms in the basement; appellant testified that "thousands of gallons" of water were "gushing" out of the heating ducts. Appellant immediately notified Fairways and Zvi Leibovich, the sole owner of Paragon, of the water problem.

During the spring and summer of 1991, Paragon arranged for the repair of a damaged sprinkler line, the addition of gutters to the house, the patching of a hole behind an electrical panel, and the re-grading of a portion of the yard. Despite these corrections, appellant continued to have water in the basement after any significant rainfall. Paragon proposed further changes.

On October 1, 1991, appellant wrote to Paragon stating that the water problems continued, that he disagreed with the solutions proposed by Paragon and with the actions previously taken to correct the problem, and that the problem was critical and required redress.

On October 12, 1991, Paragon responded by letter recounting the measures taken to correct the water problem. Paragon stated that if the problem with the water in the heating ducts continued, drain tile could be installed from the furnace plenum to the drain basket, and that the water along the south side of the basement was caused by two planters adjacent to the foundation wall.

Appellant found Paragon's letter unsatisfactory and wrote back on October 22, 1991, stating that neither the sprinkler system nor the planters caused the problem; rather, the problem arose from defects in the waterproofing system, the drain field system, and the finish grading of the back yard.

On October 31, 1991, Paragon responded, stating that the house had been properly constructed, that there had been no breach of contract or architectural standards, that the corrective measures previously taken had solved the problem, and that any continuing problem was caused by the planters. Paragon requested payment from the contingency fund for the prior work that had been done to correct the water problem and stated that it would continue to serve appellant as it had done in the past and would correct any problems on a "cost plus" basis pursuant to the terms of their agreement.

Appellant responded on November 20, 1991, accusing Paragon of negligence and breaching industry standards. Appellant stated that Paragon's explanations for the water problem were inconceivable and did not address the problem; and that even though the house was built on a "cost plus" basis, it did not absolve Paragon from its responsibility. Paragon responded in a letter dated November 29, 1991, stating again that it had proposed additional corrective measures with respect to the water in the heating ducts and was awaiting appellant's approval of them and that it expected to be reimbursed for any further work to correct the water problem.

Correspondence between the parties continued during the summer and fall of 1992. Appellant continued to blame Paragon for the water problem, and Paragon continued to deny any responsibility for the problem, insisting that the drain tile had been properly installed and blaming any continuing problems on the planters.

Appellant brought suit on June 27, 1994. On March 21, 1996, respondents moved for summary judgment, claiming that appellant had failed to bring his action within the two-year statute of limitations and had failed to come forward with expert testimony establishing a prima facie case. The trial court granted respondents' summary judgment motion, determining that appellant was subject to the two-year statute of limitations and that the statute had run.

D E C I S I O N

On appeal from a grant of summary judgment, the court determines whether any genuine issues of material fact exist and whether the district court erred in its application of the law. Offerdahl v. University of Minn. Hosp. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). The court views the evidence in the light most favorable to the non-moving party. Id. The court need not defer to the district court's decision regarding questions of law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

1. Defect discovery date.

Appellant argues that the discovery date from which to calculate the statute of limitations is a disputed material fact. We disagree.

As a threshold matter, appellant may be precluded from raising this argument on appeal. Generally, a reviewing court must consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). A dispute over the discovery date of the injury was never raised before the trial court. Appellant agreed that the facts, for the purposes of the summary judgment motion, were as asserted in respondents' memorandum, and the trial court specifically stated that "the time of discovery is not disputed."

Moreover, appellant's discovery argument fails when considered on its merits. Minn. Stat. § 541.051 (1990) provides in relevant part that:

Subdivision 1. (a) 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 * * * more than two years after discovery of the injury * * *.

(b) * * * [A] cause of action accrues upon discovery of the injury * * *.

Wittmer v. Ruegemer, 419 N.W.2d 493, 497 (Minn. 1988), applied Minn. Stat. § 541.051, subd. 1:

[w]hen a * * * party is injured in a sudden, unexpected mishap arising out of the defective and unsafe condition, * * * the commencement of the two year limitation can ordinarily be decided as a matter of law. Similarly, when sudden, calamitous damage arises out of a hidden defect, the matter of the owner's discovery may be a matter for summary disposition.

Here, appellant discovered his injury when "thousands of gallons" of water began "gushing" out of the heating ducts, not when he allegedly learned that improper backfill may have caused the problem. Thus the injury was discovered in the spring of 1991.

2. Fraud and the statute of limitations.

Appellant argues that the two-year statute of limitations does not apply, citing Mutual Serv. Life v. Galaxy Builders, 435 N.W.2d 136 (Minn. App. 1989), review denied (Minn. Apr. 19, 1989).[1] Mutual Serv. Life establishes that fraud does not toll the statute of repose because the limitation period does not begin to run until discovery of the defective condition. Id. at 139. Mutual Serv. Life, however, provides no basis for holding that the statute of limitations in an action based on improvement to real property, regardless of fraud, is anything other than Minn. Stat. § 541.051. See id. at 139-40.

In essence, appellant argues that because respondents concealed the fact that improper backfill material was used, the statute of limitations did not begin to run until appellant discovered not the injury, but its cause. Again, appellant did not raise this argument before the trial court. Even if we were to address the merits of this issue, however, we would conclude that Minn. Stat. § 541.051, subd. 1(b), and case law establish unequivocally that the statute begins to run upon discovery of injury. See Metropolitan Life Ins. Co. v. M.A. Mortenson Cos., Inc., 545 N.W.2d 394 (Minn. App. 1996) (Minn. Stat § 541.051 bars actions for building defects brought more than two years after discovery of the injury), review denied (Minn. May 21, 1996). As such, appellant's claim is barred because, even if there were fraud, appellant's injury and cause of action arose when "thousands of gallons" of water began "gushing" out of the heating ducts.

Affirmed.

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

[ ]1Before the trial court, appellant argued that he was subject to Minn. Stat. § 541.05, subd. 1(6), and a six-year statute of limitations. Appellant cites to a 1938 federal district court decision regarding the six-year statute of limitations for fraud, but makes no further argument on the applicability of that statute.