This opinion will be unpublished and

may not be cited except as provided by

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




Steven Pickard, et al.,



Alfred Goudge,

d/b/a Goudge Construction,


Lyman Lumber,

d/b/a Minnetonka Design,


Corbett Johnson,

d/b/a Johnson and Associates, et al.,


Filed November 24, 1998

Affirmed in part, reversed in part, and remanded

Klaphake, Judge

Chisago County District Court

File No. C7-97-1031

Steve and Joan Pickard, 6375 260th St., Wyoming, MN 55092 (appellants pro se)

David Essling, 1217 W. 7th St., St. Paul, MN 55102 (for respondent Goudge)

Leo I. Brisbois, Stich, Angell, Kreidler, Brownson & Ballou, P.A., The Crossings, Ste. 120, 250 Second Ave. S., Minneapolis, MN 55401 (for respondent Lyman Lumber)

Owen Reed Humphreys, Kristine Nelson Fuge, Hebert, Welch & Humphreys, P.A., 20 N. Lake St., Ste. 301, Forest Lake, MN 55025 (for respondents Johnson)

Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Klaphake, Judge.



Appellants Steven and Joan Pickard and their children commenced this action alleging injuries caused by the design, craftsmanship, and construction of their home. The district court granted summary judgment to all respondents, who include Brian Iverson, Corbett Johnson, and Century 21-Forest Lake, the seller's real estate agents and agency (Century 21); Alfred Goudge, d/b/a Goudge Construction, the construction company that built the home (Goudge Construction); and Lyman Lumber, d/b/a Minnetonka Design, the company that created the home blueprints and plans (Lyman Lumber). Because appellants failed to identify facts that could provide a basis of recovery against respondents Century 21 and Lyman Lumber, we affirm as to them. We reverse the grant of summary judgment as to Goudge Construction because appellants have raised material facts regarding their claim against Goudge Construction, and the record fails to establish (1) a valid settlement and a release between appellants and Goudge Construction, (2) a statute of limitations bar on appellants' claims against Goudge Construction, or (3) a failure to prosecute the case.


"On an appeal from summary judgment, we must examine two questions, whether there are any genuine issues of material fact and whether the lower courts erred in their application of the law." Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn. 1997). "A reviewing court must view the evidence in the light most favorable to the party against whom summary judgment was granted." Vetter v. Security Continental Ins. Co., 567 N.W.2d 516, 520 (Minn. 1997).

I. Claim Against Century 21

Appellants' complaint alleges that Century 21 negligently designed and constructed the home and violated warranties of fitness for a particular purpose and habitability. Century 21 claims that it was only an agent for Goudge Construction, the property owner, and that it had no other interest in the property or in appellants' home construction. In responding to Century 21's interrogatories, including a request to specify the warranties Century 21 made and breached and its role in the negligent design and/or construction of the home, appellants merely reasserted the allegations of the complaint. These bare allegations do not link Century 21's conduct to any injuries suffered by appellants. Therefore, the district court properly granted summary judgment to Century 21. See Minn. R. Civ. P. 56.05 (nonmoving party must "present specific facts showing that there is a genuine issue for trial" to withstand summary judgment motion); Nicollette Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 847-48 (Minn. 1995) (moving party entitled to summary judgment when no facts in record establish genuine trial issue).

II. Claim Against Lyman Lumber

Lyman Lumber argues that since appellants filed their complaint, they have offered no facts to establish their claim. Again, we agree. Appellants have not offered any evidence showing that their injuries were caused by a design defect in the plans or blueprints, rather than by defective construction. The record does not include the plans and blueprints, although it does include an invoice referencing relocation of the laundry and furnace. Without such a link between the house design and their injuries, appellants lack proof of an essential element of their claim. Cf. Jonathan v. Kvaal, 403 N.W.2d 256, 259 (Minn. App. 1987) (in defective design claim involving swimming pool, nonmoving party survived summary judgment motion by offering expert's affidavit asserting defect in pool design), review denied (Minn. May 20, 1987); see also DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997) (no genuine issue of material fact if nonmoving party presents evidence "which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative" of essential element of nonmoving party's case). Thus, the district court properly granted summary judgment to Lyman Lumber.

III. Claim Against Goudge Construction

Unlike the claims against the other respondents, appellants have offered material facts to support their claims against Goudge Construction. In addition to numerous construction defects enumerated by appellants, the record includes an affidavit by Michael Mueller, a plumbing and heating contractor, who tested the house for carbon monoxide and found a concentration level of 2,000 parts per million, the highest amount registered by his equipment. Mueller's report also states that the water heater, furnace, and ventilation of the house do not comply with the building code. The report of a thermographer, Steven Klossner, also notes mold, ventilation, and sewer problems, and suggests remedies for these problems. This evidence is sufficient to withstand a motion for summary judgment. See Minn. R. Civ. P. 56.05.

In granting summary judgment to Goudge Construction, the district court concluded that Goudge Construction offered three defenses that precluded appellants' claims. Because these defenses either involve fact questions or are unsupported by the record, we reverse the district court's findings on these defenses.

Statute of Limitations

As a basis for granting summary judgment, the district court found that more than "two years had passed after the accrual of this cause of action before the action was commenced." See Minn. Stat. § 541.051 (1996) (two-year statute of limitations for claims based on construction to improve real property). The statute of limitations begins to run when the property owner discovers, or with reasonable diligence should have discovered, the injury caused by the defective condition of the property. 200 Levee Drive Assocs., Ltd. v. Bor-Son Bldg. Corp., 441 N.W.2d 560, 564 (Minn. App. 1989). If reasonable minds may differ on when an injury should have been discovered, the time of discovery is a fact question. Metropolitan Life Ins. Co. v. M.A. Mortenson Cos., 545 N.W.2d 394, 399 (Minn. App. 1996) (citation omitted), review denied (Minn. May 21, 1996).

The house closing occurred on May 28, 1991, and this action was commenced on July 21, 1993. Appellants' complaint does not allege a specific date when their injuries were discovered, although Joan Pickard was first hospitalized in May 1992 with respiratory problems. Because the defects were of the type that would not be readily apparent or ascertainable and that could accumulate over time, the date of injury is a fact question precluding summary judgment. Therefore, the district court erred in granting summary judgment on this basis.

Failure to Prosecute

The district court found that appellants had failed to prosecute their claim because, without justification, they failed to take any action in this matter for over three years. See Minn. R. Civ. P. 41.02(a) (court may dismiss action for failure to prosecute). The district court considers two factors in determining whether to dismiss for failure to prosecute: (1) whether the delay prejudiced the defendant and (2) whether the delay was "unreasonable and inexcusable." Scherer v. Hanson, 270 N.W.2d 23, 24 (Minn. 1978) (footnote omitted). Prejudice may not be presumed merely because of the delay, and prejudice is not evidenced by matters such as ordinary expenses and inconvenience of trial preparation, which can be redressed by less drastic sanctions. Firoved v. General Motors Corp., 277 Minn. 278, 283 152 N.W.2d. 364, 368 (1967); Ed H. Anderson Co. v. A.P.I, Inc., 411 N.W.2d 254, 256 (Minn. App. 1987), review denied (Minn. Oct. 30, 1987).

Neither the record nor the district court's findings demonstrate any prejudice to respondents, other than the time delay. Further, although the court found that appellants' change of counsel did not justify their failure to prosecute, the court made no finding regarding the validity of appellants' claim that the delay was due to their serious health problems. See Sherer, 270 N.W.2d at 25 (denial of motion to dismiss for failure to prosecute appropriate if delay attributable to appellant's counsel and not to plaintiff). In addition, although rule 41.02 does not require the district court to provide some formal warning before dismissing a case, such a warning would have been warranted here because the action was not filed until 1997 and the court granted summary judgment in February 1998, several months before its own discovery deadline. Finally, the three-year delay, while significant, is of less duration than the delays in other cases involving dismissals after an extended period of years. See, e.g., State v. St. Paul Fire & Marine Ins. Co., 434 N.W.2d 6, 9 (Minn. App. 1989) (almost seven-year dormancy period), review denied (Minn. Mar. 17, 1989); Copeland v. Bragge, 378 N.W.2d 35, 39 (Minn. App. 1985) (five-year dormancy period); Dvoracek v. Lovely, 366 N.W.2d 391, 394 (Minn. App. 1985) (almost eight-year dormancy period); Reichert v. Union Fidelity Life Ins. Co., 360 N.W.2d 664, 668 (Minn. App. 1985) (six and one-half year dormancy period). For these reasons, we conclude that the district court abused its discretion in granting summary judgment to respondents for appellants' failure to prosecute their claim. See Chahla v. City of St. Paul, 507 N.W.2d 29, 32 (Minn. App. 1993), review denied (Minn. Dec. 14, 1993) (trial court's decision on failure to prosecute discretionary and reversed only for abuse of discretion).

Settlement and Release

Finally, the district court found that appellants had "already released any potential claims against defendant Goudge through their claim against, settlement with, and release of defendant Goudge's warranty insurer." The release documents included in the record do not provide a sufficient factual basis to support this finding. The release between National Home Insurance Company (NHIC) and appellants is entitled, "WORKMANSHIP/SYSTEMS PARTIAL CASH RELEASE," and releases NHIC from liability and assigns to NHIC all claims appellants

now have or might have in the future arising out of the items listed below only.

Item 1b. of the Analysis of Defects written by Custard Insurance Adjusters dated February 24, 1993 with agreed costs from J. Benson Construction.

Because the record does not include the "Analysis of Defects," which would provide the underlying basis for appellants' claim against NHIC, it is impossible to determine whether the district court properly determined that the release included all of appellants' claims against Goudge Construction.

The record also includes a release between NHIC and Goudge Construction that releases Goudge Construction from any liability from and any and all claims against Goudge Construction, for the payment of $850. This document is unrelated to any release of claims between Goudge Construction and appellants. Because the burden was on Goudge Construction to prove its entitlement to summary judgment and because there are unresolved factual issues regarding any settlement and release between Goudge Construction and appellants, Goudge Construction is not entitled to summary judgment on this basis.

Affirmed in part, reversed in part, and remanded.