This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-1892
Grefe Construction, Inc., Appellant,
vs.
Double J Concrete & Masonry, Inc., Respondent.
Filed July 18, 2016 Affirmed; motion denied Stauber, Judge
Kandiyohi County District Court File No. 34-CV-14-367
Peter M. Waldeck, Lindsey J. Woodrow, Waldeck Law Firm, P.A., Minneapolis, Minnesota (for appellant)
William L. Davidson, Jason R. Prochnow, João C. Medeiros, Lind, Jensen, Sullivan & Peterson, P.A., Minneapolis, Minnesota; and
Jessica K. Allen, Pfefferle Kane, L.L.P., Minneapolis, Minnesota (for respondent)
Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Stauber,
Judge.
UNPUBLISHED OPINION
STAUBER, Judge
In this action by appellant-contractor against respondent-masonry-subcontractor
for negligent installation, appellant argues that the district court erred by granting summary judgment to respondent because the controlling building code is subject to
alternative interpretations. Appellant also contends that the district court abused its
discretion by refusing to accept the late deposition of one of appellant’s experts. After
the parties filed their briefs in this matter, respondent moved to strike portions of
appellant’s principal brief and reply brief. We affirm the summary judgment in favor of
respondent and deny the motion to strike as moot.
FACTS
In 2003, Daniel and Janet Costello hired appellant Grefe Construction to remodel
and construct their lake home. Appellant subsequently contracted with respondent
Double J Concrete & Masonry, Inc. to install stone-veneer siding to the home. It is
undisputed that respondent installed a single layer of Grade 15 asphalt saturated felt
paper (grade 15 felt) as the weather barrier between the stone veneer siding and the
oriented strand board (OSB) wall sheathing. Specifically, respondent applied the felt
over a layer of OSB sheathing, secured a lath to the felt, and applied a scratch coat of
either plaster or mortar to the lath. Respondent then adhered the stone veneer siding to
the scratch coat.
Construction on the home was completed in August 2004. The Costellos later
observed signs of water/moisture intrusion in their home, which ultimately required
replacement of all the stone-veneer siding on the home. The Costellos filed a demand for
arbitration against appellant. Following arbitration in August 2012, the Costellos were
awarded approximately $500,000 for the repairs, remediation, and forensic investigation
incurred arising from the damage to their home, as well as approximately $50,000 in
2 costs, attorney fees, and expert-witness costs. The arbitration award allocated damages
between appellant and respondent, apportioning to respondent approximately $300,000 in
damages and approximately $30,000 in costs and fees.
In July 2014, appellant brought this action against respondent for contribution,
alleging that respondent was negligent in the installation of the stone-veneer siding
because the grade 15 felt installed behind the adhered stone veneer did not satisfy the
applicable building code. Respondent moved for summary judgment, arguing that it was
required to install the stone-veneer siding in compliance with International Residential
Code (IRC) § R703.7 (2000), which requires that one layer of grade 15 felt be used when
installing stone veneer siding. In response, appellant claimed that respondent was
required to install the stone veneer siding in compliance with IRC § R703.6, which
requires that two layers of building paper classified as “Grade D paper” be installed
behind the adhered stone veneer.
The district court found that “[t]he only real issue to be determined . . . in this
matter is which section of the [IRC] applied to the installation of the stone veneer siding,
i.e. whether the use of the [g]rade 15 [f]elt . . . was appropriate under the [IRC].”
Although appellant claimed that the “‘battle of experts’ on the issue of which [IRC]
section applies creates an issue of fact,” the district court concluded that “what the
experts believe the [IRC] says is not the issue” because a determination of the applicable
[IRC] provision is solely an issue of statutory construction. The district court then found
that section R703.7 governed, and specified that grade 15 felt be used during
construction. Because there was no dispute that respondent used grade 15 felt in the
3 construction of the home, the district court granted respondent’s motion for summary
judgment. This appeal followed.
DECISION
I.
Summary judgment is appropriate when the admissible evidence presents no
genuine issue of material fact and one party is entitled to judgment as a matter of law.
Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). This court reviews summary
judgment de novo to determine whether the district court properly applied the law and if
genuine issues of material fact exist to preclude summary judgment. Riverview Muir
Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010). In doing so,
any conflicting evidence is considered in the light most favorable to the party who
opposes summary judgment. Fabio, 504 N.W.2d at 761.
Appellant challenges the district court’s grant of summary judgment to
respondent, arguing that summary judgment was inappropriate because evidence was
presented demonstrating that the IRC “is subject to alternative interpretations as applied
to the facts of this case.” Specifically, appellant argues that the district court erred by
(1) concluding that section R703.7 was the applicable section of the IRC; (2) refusing to
consider or defer to the building official’s interpretation of the IRC; and (3) refusing to
consider expert testimony on the applicable standard of care. Appellant further argues
that summary judgment was inappropriate because there are issues of material fact as to
whether grade 15 felt is equivalent to two layers of Grade D paper.
4 A. Applicable section of the IRC
The State Building Code governs the construction, reconstruction, alteration, and
repair of buildings. Minn. Stat. § 326B.101 (2014). The purpose of the code is to
“provide basic and uniform performance standards, establish reasonable safeguards for
health, safety, welfare, comfort, and security of the residents of this state and provide for
the use of modern methods, devices, materials, and techniques which will in part tend to
lower construction costs.” Id. To effectuate this legislative purpose, the statute instructs
the commissioner of labor and industry to establish by administrative rule “a code of
standards for the construction, reconstruction, alteration, and repair of buildings,
governing matters of structural materials, design and construction, fire protection, health,
sanitation, and safety.” Minn. Stat. § 326B.106, subd. 1 (2014).
In 2003, the “2000 edition of the [IRC] as promulgated by the International Code
Council . . . [was] incorporated by reference and made part of the Minnesota State
Building Code except as qualified by the applicable provisions of the Minnesota Rules,
chapter 1300.” Minn. R. 1309.010, subp. 1 (2003). It is undisputed that IRC § R703,
entitled “Exterior Covering,” applies here. Section R703.1 provides that “[e]xterior walls
shall provide the building with a weather-resistant exterior wall envelope,” and that this
wall envelope “shall be designed and constructed in such a manner to prevent the
accumulation of water within the wall assembly by providing a water-resistive barrier
behind the exterior veneer as required by [s]ection R703.2.” IRC § R703.1. Section
R703.7, which is entitled “Stone and masonry veneer, general,” requires that “[a]ll stone
and masonry veneer shall be installed in accordance with this chapter,” including Figure
5 R703.7. IRC § R703.7. Figure R703.7, entitled “Masonry Veneer Wall Details,” depicts
proper construction of masonry veneer walls. IRC § R703.7 (figure). The diagram
points to the proper placement of “Building Paper or Approved Water-Repellent
Sheathing,” which references sections R703.2 and R703.7.4.1 Id. Section R703.2 was
amended by the Minnesota Department of Administration and is contained in the
Minnesota Rules. See Minn. R. 1309.0703, subp. 1 (2003). This rule, entitled “Weather-
resistant sheathing paper,” provides: “A minimum of one layer of No. 15 asphalt felt
complying with ASTM D 226 for Type 1 felt or other approved weather-resistive
material shall be applied over sheathing of all exterior walls.” Id.
In contrast to section R703.7, section R703.6 is entitled “Exterior Plaster.” IRC
§ R703.6. This section, as amended by the Minnesota Department of Administration and
contained in the Minnesota Rules, provides: “Exterior Plaster. Installation of these
materials shall be in compliance with ASTM C 926 and ASTM C 1063.” Minn. R.
1309.0703, subp. 3 (2003). Sections R703.6.1 and R703.6.2 are entitled “Lath” and
“Plaster” respectively. Id. The latter provision states:
Plastering with Portland cement plaster shall not be less than three coats applied over metal lath or wire lath and shall be not less than two coats when applied over masonry, concrete or gypsum backing. If the plaster surface is completely covered by veneer or other facing material or is completely concealed, plaster application need be only two coats, provided the total thickness is set forth in Table R702.1(1).
1 R703.7.4 applies to anchorage of the veneer and is not relevant to this matter. See IRC § R703.7.4.
6 Id. When installing exterior plaster, the code requires that “[w]eather-resistant barriers
shall be installed as required in [s]ection R703.2 and, where applied over wood-based
sheathing, shall include a weather-resistive vapor permeable barrier with a performance
at least equivalent to two layers of Grade D paper.” Id.
Appellant argues that “[w]here methods of installation under the Exterior Plaster
[IRC] are used, the entirety of the work is governed by the specific requirements of that
section, including any specific weather restrictive barrier requirements.” According to
appellant, the manner in which respondent installed the siding involved a lath and scratch
coat made of plaster that was then completely covered by a veneer. Appellant argues that
because this method of installation falls into section R703.6.2, and that “provision makes
no distinction between an application of plaster veneer or where the plaster is completely
concealed by another veneer material,” the district court erred by concluding that section
R703.6 did not apply.
Appellant’s argument involves the interpretation of the IRC; thus, our first task is
to determine whether it is ambiguous. See J.D. Donovan, Inc. v. Minn. Dep’t. of Transp.,
878 N.W.2d 1, 5 (Minn. 2016). An administrative rule is ambiguous “if it is unclear or
reasonably susceptible to more than one reasonable interpretation.” In re Cities of
Annandale & Maple Lake NPDES/SDS Permit Issuance, 731 N.W.2d 502, 517 (Minn.
2007). In assessing whether a rule is ambiguous, we do not depend on a reading of words
or phrases in isolation; rather we rely on the meaning assigned to the words or phrases in
accordance with the apparent purpose of the regulation as a whole. J.D. Donovan, 878
N.W.2d at 5; see also Troyer v. Vertlu Mgmt. Co/Kok & Lundberg Funeral Homes, 806
7 N.W.2d 17, 24 (Minn. 2011) (stating that this court “construe[s] rules as a whole and
words and sentences are understood . . . in the light of their context” (quotation omitted)).
If a rule is unambiguous, we construe it “according to the common and approved usage of
its words and do not disregard the rule’s plain meaning to pursue its spirit.” Troyer, 806
N.W.2d at 24.
A logical reading of the IRC demonstrates that the district court correctly
concluded that section R703.7 controlled the installation of the stone veneer siding.
Section R703 pertains to “Exterior Covering” and the installation thereof. A review of
this section demonstrates that several parts of R703 focus on the installation of different
types of exterior siding. For example, section R703.3 is entitled “Wood, hardboard and
wood structural siding.” IRC § R703.3. Similarly, section R703.5 is entitled “Wood
shakes and shingles.” Id. § R703.5. And, as stated above, sections R703.6 and R703.7
pertain to “Exterior plaster” and “Stone and masonry veneer,” respectively. Id.
§§ R703.6, R703.7. The categorization of different types of exterior siding under section
R703 indicates that when a certain type of exterior siding is installed, it is required to be
installed under the mandates of that subsection of the IRC.
In this case, it is undisputed that the type of siding installed by respondent
consisted of stone veneer. This is distinct from plaster exterior siding such as stucco. See
Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/stucco (last
visited on June 14, 2016) (defining “stucco” as “a type of plaster used for decoration or to
cover the outside walls of houses”). When stone and masonry veneer siding is installed,
the IRC requires that “[a]ll stone and masonry veneer shall be installed in accordance
8 with this chapter.” IRC § R703.7 (emphasis added). This language is not only
unambiguous, it is also mandatory. See Minn. Stat. § 645.44, subd. 16 (2014) (providing
that “‘[s]hall’ is mandatory”). The mandatory language of section R703.7 demonstrates
that section R703.6 cannot be applicable because the installation of stone veneer in
accordance with R703.6 would conflict with the language of section R703.7 that requires
all stone veneer to be installed in accordance with section R703.7. See Miller v.
Colortyme, Inc., 518 N.W.2d 544, 551 (Minn. 1994) (stating that “[a] statute is to be
construed, whenever reasonably possible, in such a way as to avoid irreconcilable
differences and conflict with another statute”). Therefore, the district court did not err by
concluding that section R703.7 is the applicable section of the IRC.
B. Building official
Appellant also contends that the district court erroneously refused to consider the
building official’s interpretation of the IRC. We disagree. Minnesota law provides that
“[i]f a municipality has adopted or adopts the State Building Code, the responsibilities for
code administration and enforcement are under the authority of its designated building
office.” Minn. Stat. § 326B.133, subd. 3a (2014). These building officials are
“responsible for all aspects of code administration for which they are certified, including
the issuance of all building permits . . . .” Id., subd. 4 (2014). Local building officials
have considerable discretion in enforcing code provisions, as well as interpreting unclear
or ambiguous portions of the code. State v. Arkell, 672 N.W.2d 564, 568-69 (Minn.
2003).
9 Here, the building official’s interpretation of the IRC is allegedly contained in
handwritten notes on the building plans for the Costellos’ house. These plans, which
were attached as Exhibit A to appellant’s memorandum in opposition to respondent’s
motion for summary judgment, contain a notation referencing “two layers of grade D
building paper or [equivalent] required behind the stonework or brick.” But the district
court refused to “give any credence” to these notations because there was “nothing in the
record to indicate who placed these comments on [the] document, when they were
placed, any reason requiring this deviation from the Building Code, or whether this was
ever brought to the attention of [respondent].”
Appellant argues that the building official’s stamp “Reviewed for Code
Compliance” demonstrates that he reviewed the plans and “approved the construction
with the inclusion of the revision[s].” Appellant argues further that in light of the
building official’s considerable expertise in the field, the district court erred by refusing
to consider and give deference to the building official’s interpretation of the IRC. We
disagree. As we determined above, the IRC is unambiguous. Because the IRC is
unambiguous, its plain meaning is clearly discernible from its language. Thus, the
district court was not required to consider or give deference to the building official’s
interpretation of the IRC. See St. Otto’s Home v. Minn. Dept. of Human Servs., 437
N.W.2d 35, 40 (Minn. 1989) (“No deference is given to the agency interpretation if the
language of the regulation is clear and capable of understanding; therefore, the court may
substitute its own judgment.”).
10 C. Expert testimony
Next, appellant argues that the district court erred by refusing to consider expert
testimony on the issue of the applicable standard of care. Ordinarily, expert testimony is
required to establish the prevailing standard of care and the consequences of departure
from that standard. City of Eveleth v. Ruble, 302 Minn. 249, 254-55, 225 N.W.2d 521,
525 (1974). “When qualified expert opinion with adequate foundation is laid on an
element of a claim, a genuine issue of material fact exists.” Admiral Merchs. Motor
Freight, Inc. v. O’Connor & Hannan, 494 N.W.2d 261, 266 (Minn. 1992).
A review of appellant’s arguments demonstrates that appellant is not claiming that
expert testimony is necessary to establish that two layers of Grade D paper is the
applicable industry standard. Instead, appellant repeatedly contends in its appellate
submissions that the expert opinions pertain to “which particular [IRC] code provisions
applied to respondent’s work.” But, as the district court determined, the IRC is
unambiguous and clearly sets forth the applicable industry standard for installation of
“all” stone and masonry veneer. See IRC § R703.7. Thus, the interpretation of the IRC
is a legal issue, and expert testimony is unnecessary to determine the applicable standard
of care under the IRC. Compare City of Brainerd, 827 N.W.2d at 755 (stating that when
the statute is unambiguous, the court interprets the language according to its plain
meaning without resorting to other principles of statutory construction), with
Christianson v. Henke, 831 N.W.2d 532, 537 (Minn. 2013) (stating that if a statute is
ambiguous, factors set forth by the legislature may be considered for interpreting the
statute). Therefore, because appellant’s argument is that expert testimony is necessary to
11 determine the applicable section of the IRC—which is a legal issue—rather than whether
respondent’s installation of grade 15 felt failed to meet industry standards—which is a
factual issue—the district court did not err by refusing to consider expert testimony with
respect to standard of care. And because appellant failed to establish that respondent
breached the applicable standard of care, the district court properly dismissed appellant’s
negligence action without considering expert testimony on causation. See Lee v. State,
Dep’t. of Nat. Res., 478 N.W.2d 237, 239 (Minn. App. 1991) (stating that if an element of
a negligence claim is not proved, the claim must be dismissed), review denied (Minn.
Feb. 10, 1992).
D. Material used by respondent
Appellant further argues that because the experts disagree as to whether grade 15
felt is equivalent to two layers of Grade D paper, an issue of material fact exists that
precludes summary judgment. But again, the IRC unambiguously states that grade 15
felt is the proper material to be used when installing “all” stone veneer. IRC § R703.7. It
is undisputed that respondent used grade 15 felt in installing the stone veneer on the
Costellos’ home. As the district court found, although the experts disagree as to whether
the grade 15 felt is equivalent to two layers of Grade D paper, the “issue is moot because
the [IRC] did not require Grade D water resistant sheathing.” Thus, the district court
properly concluded that the issue need not be decided because respondent complied with
the applicable IRC provisions.
In sum, the district court properly concluded that Section R703.7 was the
applicable section of the IRC. And because the undisputed facts demonstrate that
12 respondent complied with the applicable section of the IRC, the district court did not err
by granting summary judgment to respondent.
II.
At the summary-judgment hearing, appellant asked the district court to accept the
deposition transcript of Joel Johnson, which had not been filed with its motion papers.
The district court denied the motion. Appellant argues that the district court’s ruling was
an abuse of discretion.
The Minnesota Rules of General Practice require the nonmoving party to respond
to a dispositive motion by serving and filing any affidavits and exhibits on the opposing
party at least nine days before the hearing. Minn. R. Gen. Pract. 115.03(b). This court
reviews a district court’s procedural and evidentiary rulings for an abuse of discretion.
Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied (Minn. Oct.
24, 2001).
Here, it is undisputed that the deposition transcript was not filed within the time
limits set forth in Minn. R. Gen. Pract. 115.03(b). Because appellant did not timely file
the deposition transcript, the district court did not abuse its discretion by refusing to
consider it. Moreover, even if the district court abused its discretion by refusing to accept
the untimely exhibit, appellant cannot establish that it was prejudiced by the ruling.
Johnson’s deposition testimony was offered to show his opinion as to the proper
interpretation of the IRC. But, as discussed above, the interpretation of the IRC is a legal
question due to its lack of ambiguity. Therefore, expert testimony was unnecessary, and
the district court properly declined to consider expert testimony on the issue.
13 III.
Finally, respondent moved to strike the portions of appellant’s principal brief and
reply brief that cite to or rely on the portion of the summary-judgment hearing transcript
for the “truth of the matters asserted” by the attorneys as to the content of the untimely
Johnson deposition transcript. But the content of Johnson’s deposition is not relevant to
the issues in this appeal because the interpretation of the IRC is a legal issue that does not
require the consideration of expert testimony. Because we do not rely on the challenged
material contained in appellant’s briefs, we deny the motion to strike as moot. See
Drewitz v. Motorwerks, Inc., 728 N.W.2d 231, 233 n.2 (Minn. 2007) (denying motion to
strike as moot when court did not rely on material).
Affirmed; motion denied.