Glen A. Boyce, Central Office Building, 725 Main Street, P.O. Box 277, North Branch, MN 55056 (for James E. and Jean Gilmore)

Daniel A. Haws, Peter B. Tiede, Murnane, Conlin, White & Brandt, 1800 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for Jerry Bombard d/b/a Bombard Construction)

Lawrence M. Rocheford, Shari L. Johnson, Jardine, Logan & O'Brien, P.L.L.P., 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101-2160 (for Keith Gilmore individually and d/b/a Johnson Construction)

Stephen D. Garrison, Powell, Garrison, Swanson & Peterson, 7450 France Avenue South, P.O. Box 59033, Minneapolis, MN 55459-0033 (for K-Wood)

Considered and decided by Schumacher, Presiding Judge, Crippen, Judge, and Holtan, Judge.[*]

In this consolidated appeal, homeowners challenge the district court's grant of summary judgment in favor of their contractor. The court determined that the statute of limitations had expired. In addition, the contractor appeals the dismissal of its claim against its supplier in the event that this court reverses the grant of summary judgment. We affirm the district court's dismissal of the contractor's third-party suit against supplier and reverse the summary judgment in favor of the contractor.

1. The applicable statute of limitations in this case is Minn. Stat. § 541.051, subd. 1 (a) (1994), which provides that an action to recover damages based on defective and unsafe conditions of an improvement to real property must be brought within two years of discovery of the injury. Homeowners argue that there is a factual issue regarding when the building defects were discovered. The supreme court noted:

In the context of section 541.051, summary judgment is inappropriate "if 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 * * *."

City of Willmar v. Short-Elliott-Hendrickson, Inc., 475 N.W.2d 73, 77 (Minn. 1991) (quoting Wittmer v. Ruegemer, 419 N.W.2d 493, 497 (Minn. 1988)).

In Wittmer, the owner's observation of gradually increasing problems precluded determination of the date of discovery in the context of summary judgment and presented a fact issue for trial. For the same reason, awareness of an obnoxious odor did not, as a matter of law, determine the date of discovery when the owner was assured repeatedly that the odor was not indicative of design defects. City of Willmar, 475 N.W.2d at 78.

In this case, there are disputes as to when homeowners discovered what defects and when discovered. Like the defects in Wittmer, some damages appeared gradually. Determination of the date of discovery of the defects presents a genuine issue of material fact, and summary judgment was inappropriate.

2. Contractor argues that there are genuine issues of material fact regarding supplier's responsibility for the defects at issue in this case. Contractor points to expert's testimony that seemed to link some of the problems to the choice of materials. There is no evidence, however, that supplier had any role in the selection of materials. All existing evidence indicates that supplier merely filled orders for building materials selected by contractor.

Contractor also argues that supplier breached an implied warranty of merchantability (by allegedly selling goods unfit for ordinary purposes) and an implied warranty of fitness (because contractor allegedly relied on supplier's skill or judgment to select or furnish suitable goods). Again, even if the materials were defective, there was no evidence that the selection of materials was the responsibility of anyone other than contractor. The district court's grant of summary judgment in favor of the supplier is affirmed.

Affirmed in part and reversed in part.

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