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Fuhr v. D.A. Smith Builders12/13/2005
Mark and Jane Fuhr appeal from summary judgment denial of their claims for damages for alleged defects in the construction of their residence, claiming that the limitations period in Minn. Stat. § 541.051, subd. 1 (2004) had not run and that they did not have to give written notice of breaches of statutory warranties pursuant to Minn. Stat. § 327A.03(a) (2004). Because factual issues exist with respect to the injuries suffered and the time of their discovery, the district court erred in granting summary judgment based on the limitations period. Because, however, the Fuhrs have not established any exception to the written notice requirement for claims of breach of statutory warranties, we affirm summary judgment dismissing those claims. We affirm in part, reverse in part, and remand.
FACTS
In 1993, appellants Mark and Jane Fuhr contracted with respondent D.A. Smith Builders, Inc. (Smith) to build their home. Acting as the general contractor, respondent Smith subcontracted with respondent Battin Stucco to apply stucco to appellants' home. Fuhrs took possession of the home in March 1994. They found water in their basement each year.
In 1998, Fuhrs discovered water damage in the form of discolored sheetrock beneath the window in their dining room. Fuhrs notified their insurer and that insurer sent an adjuster to inspect the damage. The adjuster identified the cause of the damage as the exterior stucco crumbling and chipping under the window. The insurer agreed to cover the interior damages, but not the repairs to the exterior of the home.
Fuhrs removed and repaired the damaged sheetrock themselves. Mark Fuhr does not remember whether he removed the insulation under the sheetrock or saw the sheathing behind the insulation, but he did see the studs behind the sheetrock and described them as "clean as a whistle." To prevent future exterior stucco damage, appellants had a sealant called Dryvit applied to the exterior of their home in 1998. Mark Fuhr claims that he contacted David Smith, from respondent Smith, and that David Smith indicated that Fuhrs should contact respondent Battin Stucco regarding these problems. David Smith does not recall this conversation.
In 1998, Fuhrs brought a claim against Battin Stucco in conciliation court, seeking damages to cover the cost of the repairs and the Dryvit application. The conciliation court dismissed Fuhrs' case because they did not provide expert testimony on defective workmanship.
In November or December 2002, Fuhrs again noticed water damage near the dining room window, this time in the form of a rotted interior window sill. Fuhrs cut a hole in the sheetrock to investigate and found "massive mold." The studs were black and rotten.
In early 2003, Fuhrs hired a moisture-testing service to perform an inspection of the house. The service's report indicated mold and moisture problems not just near the dining room window but throughout the house. The report attributed the problems to defective stucco work, including unsatisfactory caulking and improper flashing where the stucco met the other exterior surfaces, lack of a weather-resistant barrier under the stucco, and stucco installation below grade. Respondent Smith's insurer hired a company to perform an inspection of the home, and the company's report also identified the stucco installation as the source of the problem.
Mark Fuhr testified that he talked to David Smith regarding these problems and may have sent him a letter. Fuhr's notes indicate that he informed David Smith he would send a letter. David Smith does not deny the possibility of a letter, and admits that he talked with Fuhrs about the problems in the sp
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