Sherbrook Co. v. E & H Earth Movers, Inc., C7-87-1797
| Decision Date | 01 March 1988 |
| Docket Number | No. C7-87-1797,C7-87-1797 |
| Citation | 419 N.W.2d 818 |
| Court | Minnesota Court of Appeals |
| Parties | SHERBROOK COMPANY, Respondent, v. E & H EARTH MOVERS, INC., Appellant. |
Syllabus by the Court
Respondent's claim is not barred by Minn.Stat. Sec. 541.051 (1984).
Appeal from District Court Anoka County; Hon. Edward F. Coleman, Judge.
Virgil C. Herrick, Herrick & Newman, P.A., Fridley, for Sherbrook Co.
Michael S. Kreidler, Lasley, Gaughan, Stich & Angell, P.A., Minneapolis, for E & H Earth Movers, Inc. Heard, considered and decided by FORSBERG, P.J., and NIERENGARTEN and CRIPPEN, JJ.
This appeal is from an amended order denying E & H Earth Movers' motion for dismissal and certifying the issues raised in that motion as important and doubtful under Minn.R.Civ.App.P. 103.03(h). We affirm the trial court's disposition of the motion.
The facts are not in dispute. Respondent Sherbrook Company ("Sherbrook"), a property developer, contracted with appellant, E & H Earth Movers ("E & H"), on October 13, 1978. E & H agreed to grade and grub property and render it suitable for building foundations. E & H substantially completed the work by July 31, 1980.
Sherbrook discovered a material breach of the contract on July 1, 1983, when soil tests showed that the land was improperly prepared for building sites. Sherbrook brought this action for breach of contract, and personally served E & H with a complaint on October 30, 1985.
In its answer, E & H denied the breach and asserted that Sherbrook's claim was untimely under the two-year limitation provided in Minn.Stat. Sec. 541.051 (1984). E & H thereafter moved for dismissal.
In denying the motion, the trial court concluded that the two-year limitation did not bar the claim because
the statutory words "defective and unsafe condition of an improvement to real property" do not apply to the [E & H's] soil correction activities involved here.
Did the trial court err in determining that the two-year limitation of Minn.Stat. Sec. 541.051 (1984) did not apply to this breach of contract claim?
Minn.Stat. Sec. 541.051, subd. 1 (1984) provides in part:
Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages * * * arising out of the defective and unsafe condition of an improvement to real property * * * shall be brought more than two years after the discovery thereof * * *.
(Emphasis added.)
Sherbrook's claim is based solely on a defective improvement, not on an injury arising from an unsafe condition. Our supreme court has applied the statute only to claims involving an injury caused by a defective and unsafe condition in an improvement. See Wittmer v. Ruegemer, 419 N.W.2d 493 (Minn.1988) (); Frederickson v. Alton M. Johnson Co., 402 N.W.2d 794 (Minn.1987) (); Bulau v. Hector Plumbing and Heating Co., 402 N.W.2d 528 (Minn.1987) (); Ocel v. City of Eagan, 402 N.W.2d 531 (Minn.1987) (); Lovgren v. Peoples Electric Co., 380 N.W.2d 791 (Minn.1986) (); Calder v. City of Crystal, 318 N.W.2d 838 (Minn.1982) (); Capitol Supply Co. v. City of St. Paul, 316 N.W.2d 554 (Minn.1982) (); Pacific Indemnity Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548 (Minn.1977) (). The...
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...as, for example, when a building might fall onto another building. The trial court in this case relied on Sherbrook Co. v. E & H Earth Movers, Inc., 419 N.W.2d 818, 819 (Minn.App.1988), pet. for rev. denied (Minn. Apr. 20, 1988), for its interpretation. The Sherbrook court stated: Our Supre......
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