The Miner Group, Limited, d/b/a Northprint International, et al., Appellants, vs. Stamson & Blair, Inc., Respondent, American Buildings Company, et al., Respondents, Kiehm Construction, Inc., Respondent, Damberg, Scott, Gerzina, Wagner Architects, Inc., Respondent, Robert C. Atkinson, Inc., Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-99-2195

                       

The Miner Group, Limited, d/b/a

Northprint International, et al.,

Appellants,

 

vs.

 

Stamson & Blair, Inc.,

Respondent,

 

American Buildings Company, et al.,

Respondents,

 

Kiehm Construction, Inc.,

Respondent,

 

Damberg, Scott, Gerzina, Wagner Architects, Inc.,

Respondent,

 

Robert C. Atkinson, Inc.,

Respondent.

 

Filed July 25, 2000

Affirmed in part, reversed in part, and remanded

Shumaker, Judge

 

Itasca County District Court

File No. C598405

 

 

James A. Wade, Johnson, Killen & Seiler, P.A., 800 Norwest Center, 230 West Superior Street, Duluth, MN 55802; and

 

Robert J. Terhaar, Bradley Hendrikson, Lisa R. Griebel, Terhaar, Archibald, Pfefferle & Griebel, L.L.P., 300 First Avenue North, Suite 220, Minneapolis, MN 55401 (for appellants)

Larry C. Minton, Jason M. Hill, Law Offices of Larry C. Minton, Ltd., 320 East Howard Street, Hibbing, MN 55746 (for respondent Stamson & Blair, Inc.)

 

Michael W. Haag, Steven J. Sheridan, Andresen, Haag, Paciotti & Butterworth, P.A., 1000 Alworth Building, P.O. Box 745, Duluth, MN 55801 (for respondent Kiehm Construction, Inc.)

 

William M. Hart, Mark J. Heley, Erica Gutmann Strohl, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent Damberg, Scott, Gerzina, Wagner Architects, Inc.)

 

Steven W. Schneider, Anthony S. Downs, Halverson, Watters, Downs, Reyelts & Bateman, Ltd., 700 Providence Building, Duluth, MN 55802, (for respondents American Buildings Company and Jerry Howell Williams)

 

Bradley A. Kletscher, William F. Huefner, Barna, Guzy & Steffen, Ltd., 200 Coon Rapids Boulevard, 400 Northtown Financial Plaza, Minneapolis, MN 55433 (for respondent Robert C. Atkinson, Inc.)

 

 

 

Considered and decided by Toussaint, Chief Judge, Schumacher, Judge, and Shumaker, Judge. 

 

 

 

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

 

The trial court granted summary judgment in favor of respondents, ruling that the statute of limitations barred appellants' action.  Appellants contend that there exists a genuine issue of material fact as to whether respondents may be estopped from raising the statute of limitations as a defense.  We affirm in part, reverse in part, and remand.

 

FACTS

The Miner Group, Limited, d/b/a Northprint International (Northprint) hired real estate broker Robert C. Atkinson, Inc. to draft proposals and specifications and to obtain bids for the expansion of Northprint's printing plant.

Northprint hired Stamson & Blair, Inc. (Stamson) in September 1993 to serve as general contractor.  Stamson subcontracted with Damberg, Scott, Gerzina, Wagner Architects, Inc. (Damberg) for architectural services and with Kiehm Construction, Inc. (Kiehm) to install a pre-engineered metal roof manufactured by American Buildings Company (ABC).

The new roof began to leak in the spring of 1994.  On June 17, 1994, Stamson agreed to repair the roof.  The roof leaked again in the winter of 1994-95.  On March 10, 1995, Damberg suggested corrective measures.  ABC indicated that the roof was in good shape and needed minor repairs that it agreed to do.  On September 14, 1995, Stamson agreed to correct the problems.

On January 25, 1996, Northprint informed Stamson that the roof was still leaking.  Stamson, Damberg, ABC, and Kiehm met with Northprint on February 1, 1996, to discuss the problem.  Stamson notified Northprint on February 2, 1996, that repairs would be made and would permanently correct the problem.

Northprint hired an independent expert to verify Stamson's assurances.  On February 27, 1996, the expert reported that leakage would continue unless the roof was completely reconstructed.

 

Stamson reviewed the independent report, disagreed with the conclusions, and assured Northprint that the corrective methods suggested by others involved in the project would solve the problem.

On May 1, 1996, Stamson informed Northprint of the warranty work on the roof and the repairs that remained to be done.  ABC told Stamson that there should be no problem with the warranty, and Stamson again, on July 18, 1996, notified Northprint that corrections would be made.

Northprint reported additional leaks to Stamson on November 19, 1996, and the roof partially collapsed on March 20, 1997.

In April, 1997, Northprint's consultant determined that the roof had been inadequately braced, some necessary bracing was not shown on ABC's plans, and some bracing shown on the plans had not been installed.

Between January 14 and February 26, 1998, Northprint commenced an action against Atkinson, Stamson, Damberg, ABC, and Kiehm, alleging various claims relating to the defective roof.

The district court granted summary judgment to all respondents, except on the breach of warranty and consumer protection claims against Stamson and ABC, ruling that the statute of limitations had run prior to the commencement of the suit.  The court specifically rejected Northprint's contentions that the respondents' alleged fraud tolled the statute and that respondents are estopped from raising the statute as a defense.

Northprint appeals from the judgments, and ABC seeks review of the court's denial of its summary judgment motion on the warranty and consumer protection claims.

D E C I S I O N

On appeal from summary judgment, we determine whether there are genuine issues of material fact for trial and whether the trial court erred in its application of law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

Summary judgment is a "blunt instrument" and should not be employed to determine issues which suggest that questions be answered before the rights of the parties can be fairly passed upon.  It should be employed only where it is perfectly clear that no issue of fact is involved, and that it is not desirable nor necessary to inquire into facts which might clarify the application of the law.

 

Donnay v. Boulware, 275 Minn. 37, 45, 144 N.W.2d 711, 716 (1966).

Minn. Stat. § 541.051, subd. l.(a) (1996), requires that an action for damages from injury to real property be commenced within two years after discovery of the injury. Respondents contend that Northprint discovered the leaking roof in 1994, not long after its erection.  Because Northprint did not start the lawsuit until 1998, respondents argue that the statute of limitations bars the action.

When a party allegedly responsible for an injury to real property makes assurances or representations that the injury will be repaired, that party may be estopped from asserting a statute of limitations defense if the injured party reasonably and detrimentally relied on the assurances or representations.  See Hydra-Mac, Inc. v. Onan Corp., 450 N.W.2d 913, 919 (Minn. 1990); Mutual Serv. Life Ins. Co. v. Galaxy Builders, Inc., 435 N.W.2d 136, 140-41 (Minn. App. 1989), review denied (Minn. Apr. 19, 1989).  "Estoppel depends on the facts of each case and ordinarily presents a question for the jury."  Brenner v. Nordby, 306 N.W.2d 126, 127 (Minn. 1981).

Northprint argues that the respondents are estopped from asserting the statute of limitations because of their representation that the leakage problem was minor and their repeated assurances that it would be permanently corrected.

Respondents contend that Northprint argued fraud and not estoppel in the trial court and cannot raise that issue on appeal.  Although Northprint's primary focus was on fraud, the record shows that it also raised estoppel in the trial court.  We conclude that estoppel is properly before us on appeal.

Northprint points to no evidence that Atkinson, Damberg or Kiehm made representations or assurances that would create a fact issue as to the applicability of estoppel to them.  Northprint cites Stamson's representation that corrective measures were being taken by those involved in the construction project, but provides no authority for the proposition that one party's alleged representations can estop another party from asserting a defense.  See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (stating that assignment of error based "on mere assertion" and not supported by authority is waived unless prejudicial error is obvious on mere inspection).

Atkinson, Damberg, and Kiehm raised the statute of limitations as a defense to Northprint's action.  Northprint has failed to show that there exists a genuine fact issue as to whether these parties may be estopped from asserting the statute as a defense.  The trial court did not err in granting summary judgment to Atkinson, Damberg, and Kiehm.

Northprint had ongoing contacts and discussions with Stamson and ABC about the nature of the roof problem and its repair.  We view the evidence of those contacts and discussions in a light most favorable to Northprint as the party against whom summary judgment was granted.  See Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  There are genuine fact disputes as to what the assurances and representations were and whether Northprint reasonably relied on them.  The evidence is fairly subject to different interpretations and thus presents fact questions for the jury as to the applicability of estoppel.  See Brenner, 306 N.W.2d at 127.  The trial court erred in granting summary judgment to Stamson and ABC.

ABC contends that the trial court erred by failing to grant summary judgment on Northprint's claims of breach of warranty and consumer fraud.

ABC asserts that it did not discuss warranties with Northprint.  Allegedly, ABC intended that Stamson would communicate to Northprint its representations as to the nature and extent of warranty work.  There are fact questions on this issue for resolution at trial.  There are also fact issues as to estoppel respecting any applicable breach of warranty statute of limitations.  The trial court did not err in denying ABC's motion for summary judgment on Northprint's breach of warranty claim.

The trial court denied as untimely ABC's motion for summary judgment on Northprint's consumer fraud claim under Minn. Stat. § 325 F. 69 (1998).  We find no error in the trial court's procedural denial of the motion.

Affirmed in part, reversed in part, and remanded.