This opinion will be unpublished and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

C5-96-2423

DuWayne C. Kirchner, et al,

Respondents,

vs.

Karl Bloedel,

d/b/a Karl Bloedel Construction,

Appellant.

Filed May 20, 1997

Affirmed

Toussaint, Chief Judge

Freeborn County District Court

File No. C196150

Chester D. Swenson, Swenson Law Office, 206 South Washington, Post Office Box 426, Albert Lea, MN 56007 (for respondents)

Dale A. Hansen, Erickson, Zierke, Kuderer & Madsen, P.A., 114 West Second Street, Post Office Box 571, Fairmont, MN 56031-0571 (for appellant)

Considered and decided by Toussaint, Presiding Judge, Randall, Judge, and Holtan, Judge.[*]

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

Toussaint, Chief Judge

Appellant Karl Bloedel, doing business as Karl Bloedel Construction, challenges the trial court's determination under Minn. Stat. § 541.051, subd. 1 (1996), of the discovery date of the injury that resulted to real property. Because the trial court's finding that the injury discovery date was March 1995, is not clearly erroneous, we affirm.

D E C I S I O N

I.

Determination of when a statute of limitations begins to run presents a question of law requiring statutory construction. Ryan v. ITT Life Ins. Corp., 450 N.W.2d 126, 128 (Minn. 1990). Construction of statutes is subject to de novo review on appeal. Id. (citing Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985)).

The statute at issue, Minn. Stat. § 541.051, subd. 1 (1996), provides:

(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, * * * arising out of the defective and unsafe condition of an improvement to real property, * * * shall be brought against any person * * * more than two years after discovery of the injury * * *.

(b) For purposes of paragraph (a), a cause of action accrues upon discovery of the injury * * *.

(Emphasis added.) The parties agree that the applicable statute of limitations is Minn. Stat. § 541.051.

However, appellant asserts that determination of when respondents discovered their injury raises a question of law that this court reviews de novo. Wittmer v. Ruegemer, 419 N.W.2d 493 (Minn. 1988), directly analyzes whether the discovery date of a defective condition under Minn. Stat. § 541.051 is a question of law or fact, concluding:

[I]f reasonable minds may differ about the time of discovery or when the defective and unsafe condition should have been discovered in the exercise of reasonable diligence, the question is one for the trier of fact.

Thus, according to Wittmer, the question of when respondents discovered the injury to their real property is a question of fact.

Appellant additionally contends that because the trial court made a conclusion of law that respondents "discovered the injury in March 1995[,]" the date the injury was discovered should be considered a legal issue subject to de novo review. However, "a fact found by the court, although expressed as a conclusion of law, will be treated upon appeal as a finding of fact." Graphic Arts Educ. Found. v. State, 240 Minn. 143, 145-46, 59 N.W.2d 841, 844 (1953). We conclude that the trial court's determination of the injury discovery date was a factual determination under Wittmer v. Ruegemer, 419 N.W.2d 493, 498 (Minn. 1988).

II.

Factual determinations of when injury occurred shall be reviewed by this court under a clearly erroneous standard. See Minn. R. Civ. P. 52.01 (findings of fact shall not be set aside unless clearly erroneous); First Trust Co. v. Union Depot Place, 476 N.W.2d 178, 181 (Minn. App. 1991) ("standard of review of the trial court's findings is 'clearly erroneous'"). Appellant contends that the trial court's determination that the injury was not discovered until March 1995, was clearly erroneous. Appellant asserts that respondents should have taken whatever steps that were necessary to discover the injury in October 1992, or March 1993. Appellant relies on Greenbrier Vill. Condo. 2 v. Keller Inv., 409 N.W.2d 519 (Minn. App. 1987), which provides:

[W]e hold that the limitation period in section 541.051, subd. 1 begins to run when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, an injury sufficient to entitled him to maintain a cause of action.

Id. at 525 (citing Dalton v. Dow Chemical Co., 280 Minn. 147, 152, 158 N.W.2d 580, 583 (1968). See Rivers v. Richard Schwartz/Neil Weber, Inc., 459 N.W.2d 166, 169 (Minn. App. 1990). We conclude the trial court finding that respondents first discovered the injury in March 1995, was not clearly erroneous. Respondents were unable to open the door between their patio and porch on the day in October 1992, that appellant constructed the new patio. Appellant returned and corrected that problem. Respondents also became aware of leakage in 1993 and 1994. Respondents were unable to identify the source of the leakage. Exercising reasonable diligence, they called appellant and requested that appellant discover the cause of the problem. Appellant twice informed them that there was nothing wrong with the patio and that he believed the source of the water damage was a leak in the roof, an area on which appellant had never worked. When respondents had the roof inspected, they were unable to find leaks. The record supports the trial court's determination that respondents were not able to ascertain the source of the injury with sufficient certainty to maintain a cause of action until March 1995, when the patio door was removed and it was discovered that the surface of the patio was approximately one inch higher than the surface of the porch.

Additionally, appellant analogizes this case to Condominium Ass'n, Inc. v. Hyland Hill Co., 549 N.W.2d 617 (Minn. 1996), to demonstrate that mere awareness of the problem may be sufficient to constitute discovery of the injury. However, Hyland Hill is distinguishable from this case. The leakage that occurred in Hyland Hill was always traceable to leakage from the roof, among other locations, and to ascertainable defendants, whereas here, the source of the leakage was not sufficiently identifiable for respondents to bring a cause of action until 1995. In addition, the Minnesota Supreme Court in Hyland Hill used the clearly erroneous standard to uphold the trial court's finding that injury had occurred earlier than the date of major leakage, whereas here, the standard of review leads to the conclusion that the injury was discovered later. Thus, it was not until after the 1995 leakage that respondents were able to "discover" the cause of the injury. The trial court's finding were not clearly erroneous.

III.

Minn. Stat. § 549.21, subd. 2 (1996) provides:

Upon motion of a party, or upon the court's own motion, the court in its discretion may award to that party costs, disbursements, reasonable attorney fees and witness fees if the party or attorney against whom costs, disbursements, reasonable attorney and witness fees are charged acted in bad faith, asserted a claim or defense that is frivolous and that is costly to the other party.

Respondents assert that this court should award them attorney fees because appellant's appeal is "totally frivolous." We conclude that the record neither supports respondent's claim that appellant acted in bad faith nor that this appeal was brought frivolously. No attorney fees shall be awarded.

Affirmed.

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