Roger T. Collins, M.D., et al., Appellants, vs. Terrance Buus, operating under the assumed name of C B Construction Co., Respondent.

Roger T. Collins, M.D., et al., Appellants, vs. Terrance Buus, operating under the assumed name of C B Construction Co., Respondent. A05-1771, Court of Appeals Unpublished, July 18, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1771

 

Roger T. Collins, M.D., et al.,
Appellants,
 
vs.
 
Terrance Buus,
operating under the assumed name of C B Construction Co.,
Respondent.

 

Filed July 18, 2006

Affirmed

Peterson, Judge

Dissenting, Minge, Judge

 

St. Louis County District Court

File No. 69DU-CV-05-108

 

Erik F. Hansen, J. Robert Keena, Hellmuth & Johnson, P.L.L.C., 10400 Viking Drive, Suite 500, Eden Prairie, MN  55344 (for appellants)

 

Kenneth A. Kimber, Robin C. Merritt, Hanft, Fride, P.A., 1000 U.S. Bank Place, 130 West Superior Street, Duluth, MN  55802-2094 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from summary judgment in a construction dispute, appellant homeowners argue that (1) a transcript of their oral report of damage to their home, which was received by the contractor that built the home, satisfies the written-notice requirement of Minn. Stat. § 327A.03(a) (2004); and (2) actual notice should be sufficient to comply with the statutory notice requirement.  Because, under the plain language of the statute, liability does not extend to damage that is not reported in writing and appellants did not report damage in writing, the district court did not err in concluding that appellants cannot maintain a statutory cause of action, and we affirm.

FACTS

            Respondent Terrance Buus, operating under the assumed name of CB Construction Co., constructed a home for appellants Roger and Florence Collins.  In the fall of 2003, the Collinses discovered damage to their home and contacted Buus and told him about the damage.  On October 31, 2003, an adjuster for Buus's insurer and an engineer representing Buus came to the Collinses' home.  Roger Collins described the damage to his home, and the insurance adjuster tape recorded his statement.  The recorded statement was later transcribed. 

            During July 2004, the Collinses brought this statutory-warranty action against Buus, alleging that their home contained major construction defects.  Buus moved for summary judgment on the ground that appellants failed to provide written notice of the loss or damage within six months after discovery as required under Minn. Stat. § 327A.03(a) (2004).  The Collinses argued that the oral statement provided to and transcribed by Buus's insurer satisfied the written-notice requirement or, alternatively, that actual notice of the damage was sufficient.  Following a hearing, the district court rejected the Collinses' argument and granted summary judgment for Buus.  This appeal followed.

D E C I S I O N

            On appeal from a summary judgment, this court examines the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This court must view the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

            "Statutory construction is a question of law subject to de novo review."  Vlahos v. R&I Constr., 676 N.W.2d 672, 679 (Minn. 2004).  The object of statutory construction is to ascertain and effectuate the legislature's intent.  Minn. Stat. § 645.16 (2004).  "When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit."  Id.   "If the statute is free from all ambiguity, we look only to its plain language."  Olson v. Ford Motor Co., 558 N.W.2d 491, 494 (Minn. 1997).

I.

            Vendors of new homes in Minnesota are required by statute to provide certain warranties.  The statute provides:

            In every sale of a completed dwelling, and in every contract for the sale of a dwelling[1] to be completed, the vendor shall warrant to the vendee that:

 

            . . . .

 

            (c) during the ten-year period from and after the warranty date, the dwelling shall be free from major construction defects due to noncompliance with building standards.

 

Minn. Stat. § 327 A. 02, subd. 1(c) (2004).

            "Upon breach of any warranty imposed by section 327 A. 02, subdivision 1, the vendee shall have a cause of action against the vendor for damages arising out of the breach, or for specific performance."  Minn. Stat. § 327 A. 05, subd. 1 (2004).  But

[t]he liability of the vendor or the home improvement contractor under sections 327 A. 01 to 327 A. 07 . . . does not extend to . . .

            (a) loss or damage not reported by the vendee or the owner to the vendor or the home improvement contractor in writing within six months after the vendee or the owner discovers or should have discovered the loss or damage.

 

Minn. Stat. § 327A.03(a) (2004).

            The Collinses argue that the statement provided by Roger Collins to Buus's insurer in October 2003 and later transcribed by the insurer satisfies the written-notice requirement of Minn. Stat. § 327A.03(a) because it is a written report of the damage.  But under the plain language of Minn. Stat. § 327A.03(a), the liability of a vendor does not extend to loss or damage not reported by the vendee in writing within six months after the vendee discovers the loss or damage.  The Collinses did not report any loss or damage in writing; during his meeting with an insurance adjuster and an engineer, Roger Collins orally reported damage, and someone other than the Collinses transcribed the oral report.  The statute does not require only that a damage report be reduced to writing by someone; it requires that a vendee report damage in writing.

II.

            The Collinses argue that the actual notice of damage that Buus received should be sufficient to satisfy Minn. Stat. § 327A.03(a), and the district court erred in relying on an unpublished decision of this court to support its conclusion that actual notice is insufficient.  Unpublished opinions do not provide a basis for deciding an issue in the district court.  See Minn. Stat. § 480 A. 08, subd. 3(c) (2004) (stating "[u]npublished opinions of the court of appeals are not precedential"); Vlahos, 676 N.W.2d at 676 n.3 (stating district court erred "both as a matter of law and as a matter of practice" by relying on an unpublished opinion of the court of appeals, "stress[ing] that unpublished opinions of the court of appeals are not precedential," and noting both that "[t]he danger of miscitation [of unpublished opinions] is great because unpublished decisions rarely contain a full recitation of the facts" and that "[u]npublished opinions should not be cited by the district court as binding precedent").

            The district court did not rely solely on an unpublished opinion of this court when making its decision; it also cited a published opinion of this court and an opinion of the supreme court, although it acknowledged the limited relevance of those opinions with respect to whether actual notice satisfies the requirements of Minn. Stat. § 327A.03(a).   Regardless of the authorities it cited, the district court concluded that the Collinses cannot maintain an action for breach of a statutory warranty under Minn. Stat. § 327 A. 02, subd. 1(c), because they did not provide written notice of damage within six months as required by the exclusion created by Minn. Stat. § 327A.03(a).  Because the plain language of Minn. Stat. § 327A.03(a) provides that liability under the statutory warranty does not extend to damage that is not reported by the vendee in writing, the district court did not err in concluding that when there is no written report, actual notice is insufficient to satisfy Minn. Stat. § 327A.03(a).

            Affirmed.

 

MINGE, Judge (dissenting)

            I respectfully dissent.  The problem of whether timely notice has been provided for claims of defective construction is increasingly troublesome.  The facts in this case when viewed most favorably to the appellant allow the conclusion that homeowner Roger Collins provided adequate notice to contractor Buus.  First, Collins talked to Buus.  Next, Buus notified his insurer.  Then the claims representative for the insurer came to the Collins' home to investigate the claim, interviewed Collins, transcribed Collins' statement into a written report, and provided this report to the insurer.  Although it is unclear when Buus received a copy of the transcribed report, the insurer had taken initial responsibility for handling the claim and it was acting on behalf of Buus.  The insurance agency was Buus' agent.  To say that the "damage [was] not reported by the . . . owner to the . . . contractor in writing" places too confining interpretation on this language in Minn. Stat. § 327A.03(a) (2004). 

            I recognize the statute requires a written claim.  In this appeal, Collins persuasively argues that a careful reading of the statute allows us to conclude the notice was adequate.  Unlike the factual setting of other cases, here there was a written statement based on the report of the homeowner.  Just because the claims agent for the insurance company transcribed the statement does not mean the owner's role was lacking.  The statute does not require that the writing is physically prepared by the homeowner.  The claims agent's transcription of the homeowner's statement should be adequate.  I would conclude that on the facts in the case before us, the technical requirements of the statute are met. 

            Although not presented to the district court for consideration and difficult to assess on appeal, preparation of a written statement of the homeowner's complaint by the claims agent of the contractor's insurance carrier arguably lulls the homeowner into believing that he does not need to give any other notice or, as long as the claim is being processed, seek legal advice.  Whether in such a situation there are legal bases for construing a report as adequate or waiving a requirement that the homeowner physically write the report was not before this court.

[1] "‘Dwelling' means a new building, not previously occupied, constructed for the purpose of habitation."  Minn. Stat. § 327 A. 01, subd. 3 (2004).