Kelsey v. R. P. Vogel and Company Inc., No. 27-CV-08-6724.
| Decision Date | 27 August 2008 |
| Docket Number | No. 27-CV-08-6724. |
| Parties | Julianna Kelsey, Plaintiff, v. R. P. Vogel and Company Inc., Defendant. |
| Court | Minnesota District Court |
Gary Larson, Judge of District Court.
The above-entitled matter came before the Honorable Gary Larson, Judge of Hennepin County District Court, on August 27, 2008, on Defendant's a motion for partial summary judgment.
Julianna Kelsey, appeared pro se and James Anderson, Esq., appeared for and on behalf of Defendant, R P Vogel and Company, Inc.
Based upon the files and proceedings herein, the Court makes the following:
1. Defendant's Motion for Summary Judgment is GRANTED.
2. The attached memorandum is incorporated herein.
MEMORANDUMIn 2001, Julianna Kelsey ("Plaintiff") contracted R.P. Vogel and Company, Inc. ("Defendant") to do a complete tear-off and re-roof on her home to repair storm damage. Since that time, the skylight area has continually leaked from rain and melting snow. Plaintiff contacted Defendant about the problem in 2004. A representative of Defendant inspected the roof and applied caulk to the roof and skylight area. The representative stated that the leaking was caused by a leaky skylight. Despite the caulking, the roof still continues to leak. The leaky roof has apparently caused considerable water damage to the interior bathroom ceiling and walls below the skylight, as well as to attic space.
Plaintiff sent a letter to Defendant in January 2007 requesting an assessment of the roof and leaks. Plaintiff subsequently received a letter stating that Defendant was no longer in business. In October 2007, Plaintiff filed a claim in conciliation court. Since then, Plaintiff discovered that Defendant failed to have the completed roof work inspected in 2001 and fraudulently claimed that the inspection had taken place.
The City of Oakdale inspected the roof and interior on August 5, 2008. The city inspector reported that, (Plf's Ex. 1.) Further, "the bathroom skylight has been leaking the entire time and has caused damage to the sheetrock and water has leaked into the ceiling fan/light." (Id.) The inspector also noted that, "There is no venting on the attached garage roof, and there is not enough venting on the house required per State code." (Id.)
Rule 56.03 of the Minnesota Rules of Civil Procedure establishes the standard for summary judgment:
Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Minn. R. Civ. P. 56.03. In a summary judgment motion, the facts are viewed in a light most favorable to the non-moving party. Offerdahl v. Univ. of Minn. Hosp. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). The moving party bears the burden of showing that the material facts in the case are undisputed. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Mems v. City of St. Paul, Dep't of Fire & Safety Serv., 224 F.3d 735, 738 (8th Cir. 2000).
Material facts are those tending to establish the existence of any element essential to a party's case, and on which the party will bear the burden of proof at trial, inasmuch as the complete failure of proof concerning any essential element of the non-moving party's case renders all other fact issues immaterial. See Celotex, 477 U.S. at 322-23; Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. Ct. App. 1989). If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The moving party cannot rely upon mere general statements of fact, hearsay, speculation or conjecture. Id.
The non-moving party must present specific facts showing there is a genuine issue for trial. DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252. To defeat a motion for summary judgment, the nonmoving party must submit "significant probative evidence . . . [it] must do more than simply show that there is some metaphysical doubt as to material facts." Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. Ct. App. 1989).
Plaintiff's 2007 complaint alleges that Defendant was negligent in installing the roof on her home. An action for damages based on negligent services or construction of an improvement to real property must be brought within two years of the date of discovery of the defect or damage. See State Farm Fire and Casualty Co. v. C & A Constr. Co., Inc., 412 N.W.2d 52 (Minn. Ct. App. 1987).
Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property ... arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of the injury, shall be brought ... more than two years after discovery of the injury ... nor, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction.
Minn. Stat. § 541.051, subd. 1(a) (2007). Because Plaintiff did not file a complaint until more than two years after discovery of the defect, her complaint is barred by the statute of limitations.
Courts use a common sense approach when determining whether something is an improvement to real property for purposes of the statute of limitations and give effect to the plain meaning of the statute's words. Williams v. Tweed, 520 N.W.2d 515, 518 (Minn. Ct. App.1994), rev. denied, (Minn. Oct. 27, 1994); Kline v. Doughboy Recreational Mfg. Co., 495 N.W.2d 435, 439 (Minn. Ct. App. 1993); Allianz Ins. Co. v. PM Services of Eden Prairie, Inc., 691 N.W.2d 79, 83-84 (Minn. Ct. App. 2005).
The Minnesota Supreme Court defines an improvement to real property as "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." Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 451 (Minn. 1988) (quoting Pac. Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 554 (Minn. 1977)).
"[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. Kloster-Madsen, Inc. v. Tafi's, Inc., 226 N.W.2d 603, 607 (Minn. 1975). "Common sense dictates that new roofing is an enhancement involving the expenditure of labor and money, integral to and incorporated into the structure, and designed to make the property more useful and more valuable." Merritt v. Mendel, 690 N.W.2d 570 (Minn. Ct. App. 2005). Based on this definition, new roofing is an improvement to real property.
Plaintiff relies on the language of Minn. Stat. § 541.051, subd. 1, which begins "[e]xcept where fraud is involved," to argue that the statute of limitations was tolled until evidence of Defendant's fraudulent concealment of all defects was discovered. Plaintiff claims that Defendant committed fraud when it applied caulk around the skylight in 2004 and Defendant allegedly told Plaintiff that the leaking was due to the existing skylight, rather than the roofing.
Fraud tolls the statute of limitations only until the fraud is discovered. Mut. Serv. Life Ins. Co. v. Galaxy Builders, Inc., 435 N.W.2d 136, 140 (Minn. Ct. App. 1989); see also Cohen v. Appert, 463 N.W.2d 787, 790-91 (Minn. Ct. App. 1990) (). Thus, fraud is relevant only to the extent that it postpones the time until a party discovers or in the exercise reasonable diligence, should have discovered, the defective conditions.
The Mut. Serv. Life Ins. Court relied on the opinion of Wittmer v. Ruegemer, 419 N.W.2d 493, 497-98 (Minn. 1988), where the Minnesota Supreme Court stated:
With respect, however, to the two-year limitation period, it is apparent that fraud does not toll the statute because the limitation period does not, according to its terms, begin to run until discovery of the defective condition. Of course, fraudulent concealment is relevant if it is contended that the plaintiff should, by exercising reasonable diligence, have sooner discovered the defective condition.
435 N.W.2d 136, 140 (Minn. Ct. App. 1989), rev. denied, (Minn. Apr. 19, 1989).
Here, fraudulent concealment by Defendant would only be relevant insofar as it prevented Plaintiff from learning of its injury. Once Plaintiff discovered...
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