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Collopy v. Colson Construction12/2/2003
Beverly Fiedler appeals from the summary judgment awarded to respondent Colson Construction, Inc., arguing her statutory warranty claims are not time barred under Minn. Stat. §á541.051 (2002). She also argues that the summary judgment was inappropriate because genuine issues of fact exist regarding whether Colson Construction is equitably estopped from asserting a statute of limitations defense. We affirm.
FACTS
In 1994, Fiedler and her husband, John Collopy, contracted with Colson Construction to build a home. The purchase agreement was later amended, making Fiedler the sole purchaser. Although Collopy was a plaintiff below, he no longer retains an interest in the outcome of this case. The home was completed in October 1994.
Shortly after moving in, Fiedler and Collopy began noticing water leakage. They first noticed water seeping into the house around a large window system in the main floor. Then in the spring of 1995, they noticed water in the heating ducts running under their lower-level floor slab. Finally, later in 1995, they also noticed water intrusion in the lower-level bathroom and a walk-out.
Before Fiedler and Collopy instituted this lawsuit, multiple parties made attempts to remedy the problems. From 1995 until 1997, Colson Construction, either through its employees or through contractors operating at its request, made numerous attempts to repair the water intrusion problem. Colson Construction's final attempt occurred in July 1998, when Louis Colson requested Bruce Varner, d/b/a Master Heating and Cooling, to return to Fiedler's home to address the water in the heating ducts.
On August 10, 2000, Fiedler and Collopy sued Colson Construction, alleging 1) negligent construction of their home, 2) breach of the contract between the parties, 3) breach of the contractual warranties, and 4) breach of the statutory warranties. In April 2002, Colson Construction filed a motion for summary judgment, alleging there was no genuine issue of material fact because Minn. Stat. §á545.051 barred all of their claims. The district court granted Colson Construction's motion for summary judgment.
DECISION
On appeal from a summary judgment, this court determines whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Odenthal v. Minn. Conference of Seventh-Day Adventists, 649 N.W.2d 426, 429-30 (Minn. 2002). This court will affirm a summary judgment if it can be sustained on any ground. Winkler v. Magnuson, 539 N.W.2d 821, 828 (Minn. App. 1995), review denied (Feb. 13, 1996). Summary judgment is appropriate if the evidence, when viewed in a light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and judgment is appropriate as a matter of law. Odenthal, 649 N.W.2d at 429. In order to defeat a motion for summary judgment the nonmoving party"must do more than rest on mere averments." DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). Rather, the nonmoving party must present evidence that is"sufficiently probative with respect to an essential element of the nonmoving party's case to permit reasonable persons to draw different conclusions." Id.
Fiedler argues Minn. Stat. §á541.051, subd. 4, and not Minn. Stat. §á541.051, subd. 1, provides the proper limitation, and according to general statutory construction principles,"discovery of the breach" in subdivision 4 must refer to something different from"discovery of the injury " used in subdivision 1.
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
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