Mileta Simonovic, Appellant, vs. 900 Como Lake Limited Partnership, et al., Respondents, Shaw Contract Carpet, Respondent, vs. Cory Farnquist, d/b/a Carpet Care Plus, Inc., Respondent.

Mileta Simonovic, Appellant, vs. 900 Como Lake Limited Partnership, et al., Respondents, Shaw Contract Carpet, Respondent, vs. Cory Farnquist, d/b/a Carpet Care Plus, Inc., Respondent. A04-852, Court of Appeals Unpublished, January 25, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-852

 

Mileta Simonovic,

Appellant,

 

vs.

 

900 Como Lake Limited Partnership, et al.,

Respondents,

 

Shaw Contract Carpet,

Respondent,

 

vs.

 

Cory Farnquist, d/b/a Carpet Care Plus, Inc.,

Respondent.

 

Filed January 25, 2005

Affirmed

Kalitowski, Judge

 

Ramsey County District Court

File No. CX-03-007441

 

Seamus R. Mahoney, Jennifer M. Macaulay, The Saint Paul Building, 6 West Fifth Street, Suite 700, St. Paul, MN 55102 (for appellant)

 

Raymond L. Tahnk-Johnson, 2600 Eagan Woods Drive, Suite 110, Eagan, MN 55121 (for respondents 900 Como Lake Limited Partnership, et al.)

 

Bradley D. Hauswirth, Norman I. Taple, Wagner, Falconer & Judd, Ltd., 3500 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent Shaw Contract Carpet)

 

L.T. Merrigan, Thomas K. Cambre, John Brandt, Merrigan, Brandt & Ostenso, P.A., 25 Ninth Avenue North, P.O. Box 458, Hopkins, MN 55343 (for respondent Carpet Care Plus)

 

            Considered and decided by Kalitowski, Presiding Judge; Wright, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Mileta Simonovic challenges the district court's determination that his tort action was barred by the two-year statute of limitations under Minnesota law.  Appellant argues that the district court erred in (1) determining that this action arises out of an improvement to real property; (2) determining that this action involves a defective and unsafe condition; and (3) determining that the two-year statute of limitations applies to this failure-to-warn claim.  We affirm. 

D E C I S I O N

I.

            In April 2000, appellant fell in the hallway of his apartment building during a carpet-replacement project.  Appellant slipped when he stepped onto the bare concrete floor covered by a slippery glue.  Three years later, appellant served a complaint, alleging that respondents negligently failed to warn him of the dangerous condition in the hallway.  Respondents in this matter are (1) 900 Como Lake and Legacy Management (Como), the building owner and manager; (2) Shaw Contract Carpet (Shaw), hired by Como to replace the carpet in the building's hallway; and (3) Carpet Care Plus (Carpet Care), a subcontractor hired by Shaw to install the carpet.  

            In motions to dismiss and a motion for summary judgment, respondents argued that appellant's claim was time-barred by the two-year statute of limitations under Minn. Stat. § 541.051 (2002).  The district court granted respondents' motions.

            Appellant first contends that the district court erred in its interpretation of the statute, which provides in relevant part:

           (a) 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 personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property . . . shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury[.] . . .

          

           . . . .

 

           (c) Nothing in this action shall apply to actions for damages resulting from negligence in the maintenance, operation or inspection of the real property improvement against the owner or other person in possession.

 

Minn. Stat. § 541.051, subd. 1(a), (c).

            Here, the district court noted:

           The parties do not dispute that if the statute applies, the claims are barred.  [Appellant] claims the statute is inapplicable because the glue's only use was to secure the carpet to the floor, and its temporary, exposed condition was not an improvement to real property.  [Appellant] does not contend that the carpet itself is not an improvement. 

 

On appeal, appellant argues that even if the glue was an improvement to real property, the replacement of existing carpet with different carpet is not an improvement to real property.  We disagree.

            The construction of a statute, including a statute of limitations, is a question of law subject to de novo review.  Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn. 1998).  The supreme court has held that the following common-sense definition applies to the term improvement to real property as used in Minn. Stat. § 541.051, subd. 1: "a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs."  Pac. Indem. Co. v. Thompson-Yaeger, Ind., 260 N.W.2d 548, 554 (Minn. 1977) (citing Kloster-Madsen, Inc. v. Tafi's, Inc., 303 Minn. 59, 226 N.W.2d 603 (1975) that quotes Webster's Third New International Dictionary 1138 (1971)).  This court applied this common-sense definition in O'Conner v. M.A. Mortensen Co., 424 N.W.2d 92, 94 (Minn. App. 1988), review denied (Minn. July 28, 1988), and held that an unfinished steel and concrete stairway was an improvement to real property under the statute in question.           

            Here, the district court identified the carpet replacement as an improvement to real property, and concluded that the glue was part of the process of constructing the improvement.  The district court reasoned that like the unfinished stairway in O'Connor, an unfinished carpet-replacement project "does not lose its character as an improvement due to the fact that it is unfinished."  The district court also relied on Fiveland v. Bollig & Sons, 436 N.W.2d 478, 481 (Minn. App. 1989), review denied (Minn. Apr. 24, 1989), in which this court held that Minn. Stat. § 541.051, subd. 1, time-barred a plaintiff's claim for an injury sustained when he fell into an excavation site left open during the construction of a new garage and basement. 

            Referring to Fiveland, the district court stated:

The open excavation was not the final state of the improvement, and as such was temporary in the same way that exposed glue during the process of laying new carpet is a temporary condition.  However, like the glue that holds the carpet to the floor, the excavation of the site for a new garage is an integral and inseparable part of the process for constructing the improvement to real property.

 

We agree with the district court's analysis in concluding that the glue stage of the carpet-replacement project was an improvement to real property under Minn. Stat. § 541.051, subd. 1.  Thus, the district court properly determined that appellant was time-barred from bringing his claim.

II.

            Appellant also argues that even if the glue stage of the carpet-replacement project was an improvement to real property, Minn. Stat. § 541.051, subd. 1, does not apply because the improvement was not a "defective and unsafe condition."  The statute applies to an action in tort "arising out of the defective and unsafe condition of an improvement to real property."  Minn. Stat. § 541.051, subd. 1(a).  Appellant concedes that the glue-covered floor was unsafe, but claims that it was merely incomplete rather than defective.  We disagree.

            This court addressed a similar argument in Fiveland where the plaintiff claimed that the excavation site was unsafe but not defective.  436 N.W.2d at 479-80.  The Fiveland court stated that "[b]ecause the Minnesota Supreme Court has adopted a common sense definition of the term ‘improvement' to realty, we believe it would probably adopt a common sense or ordinary definition of ‘defective' as well."  Id. (citation omitted).  The Fiveland court concluded that the ordinary meaning of "defective" is "having a defect or defects; incomplete; faulty."  Id. at 480 (quoting Webster's New Universal Unabridged Dictionary, 475 (2d ed. 1983)).  The Fiveland court then noted that "defect" is defined as (1) the "lack or absence of something necessary for completeness; shortcoming[,]" and (2) "an imperfection; fault."  Id.   

            The Fiveland court held that the unguarded and unlighted excavation site fell within the ordinary definition of "defective" because "[a]n open excavation site is normally both guarded and lighted to warn passers-by to stay away.  To the extent it is not guarded or lighted, it remains incomplete or imperfect, and needs or desires something further to make it complete or perfect."  Id.  The Fiveland court concluded that "because the condition of the improvement was defective as well as unsafe, section 541.051 applies."  Id.  Similarly, we conclude that the glue stage of the carpet-replacement project was defective in the sense that it was incomplete or imperfect because it resulted in a slippery surface and there was nothing to alert passers-by to the unsafe condition.

III.

            Appellant also contends that his failure-to-warn claim was not subject to Minn. Stat. § 541.051 because he was not complaining about the improvement itself, but "just wishes somebody would have warned him that the floor was slippery."  Appellant generally cites Horvath v. Liquid Controls Corp., 455 N.W.2d 60, 64 (Minn. App. 1990), review denied (Minn. July 13, 1990), to support his argument that respondents had an ongoing duty to warn separate from the improvement.  We conclude Horvath is not applicable here.

            Horvath involved a wrongful-death suit against the designer and installer of an anhydrous-ammonia facility and the manufacturer of component parts.  Horvath, 455 N.W.2d at 62.  And the Horvath court ruled that the statute of limitations under Minn. Stat. § 541.051 did not apply, but that "[t]he wrongful-death statute and the cases relative thereto govern[ed] this cause of action."  Id. at 64, 65. 

            We conclude that neither the facts nor the analysis of Horvath apply here.  Moreover, the district court correctly held that appellant's "theories of negligence and of failure to warn are actions in tort," subject to the broad language in the statute of limitations under Minn. Stat. § 541.051, subd. 1.

            Finally, appellant argues for the first time on appeal that the exception under subdivision 1(c) of the statute saves his claim from the statute of limitations.  But we limit our review to the matters argued before and considered by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that "[a] reviewing court must generally consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it." (quotation omitted)).  Because this argument was not presented to the district court it is not properly before us.

            Affirmed.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.