Thomas Wascher v. Carved Stone Creations ( 2022 )

2022 WI APP 10
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2020AP1961
†Petition for Review filed
Complete Title of Case:
THOMAS WASCHER AND PAMELA WASCHER,
† PLAINTIFFS-APPELLANTS-CROSS-RESPONDENTS,
V.
ABC INSURANCE COMPANY, CONTINENTAL WESTERN INSURANCE
COMPANY, NATURAL SURFACES, LLC AND WILSON MUTUAL
INSURANCE COMPANY,
DEFENDANTS-RESPONDENTS,
CARVED STONE CREATIONS,
DEFENDANT-RESPONDENT-CROSS-APPELLANT.
Opinion Filed: February 9, 2022
Submitted on Briefs: October 12, 2021
Oral Argument:
JUDGES: Stark, P.J., Hruz and Gill, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the plaintiffs-appellants-cross-respondents, the cause was
submitted on the briefs of George R. Burnett of Law Firm of Conway,
Olejniczak & Jerry, S.C., Green Bay.
Respondent
ATTORNEYS: On behalf of the defendant-respondent, Continental Western Insurance
Company, the cause was submitted on the brief of Thomas R. Schrimpf
of Hinshaw & Culbertson LLP, Milwaukee.
On behalf of the defendants-respondents, Natural Surfaces, LLC and
Wilson Mutual Insurance Company, the cause was submitted on the
brief of Christopher R. Bandt and Sean A. Bukowski of Nash, Spindler,
Grimstad & McCracken, LLP, Manitowoc.
On behalf of the defendant-respondent-cross-appellant, the cause was
submitted on the briefs of Erik J. Pless and Gabriel G. Siehr of
Everson, Whitney, Everson & Brehm, S.C., Green Bay.
2
2022 WI App 10COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 9, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2020AP1961 Cir. Ct. No. 2018CV1112
STATE OF WISCONSIN IN COURT OF APPEALS
THOMAS WASCHER AND PAMELA WASCHER,
PLAINTIFFS-APPELLANTS-CROSS-RESPONDENTS,
V.
ABC INSURANCE COMPANY, CONTINENTAL WESTERN INSURANCE
COMPANY, NATURAL SURFACES, LLC AND WILSON MUTUAL INSURANCE
COMPANY,
DEFENDANTS-RESPONDENTS,
CARVED STONE CREATIONS,
DEFENDANT-RESPONDENT-CROSS-APPELLANT.
APPEAL and CROSS-APPEAL from orders of the circuit court for
Outagamie County: CARRIE A. SCHNEIDER, Judge. Affirmed.
Before Stark, P.J., Hruz and Gill, JJ.
No. 2020AP1961
¶1 STARK, P.J. In this lawsuit, Thomas and Pamela Wascher have
alleged negligence and breach of contract claims against Continental Western
Insurance Company, Natural Surfaces, LLC, and Carved Stone Creations
(collectively, “the Defendants”), stemming from the allegedly improper installation
of stone cladding during the original construction of the Waschers’ home. 1 The
Waschers have also alleged additional negligence and breach of contract claims
against Carved Stone based on repair work that Carved Stone later performed on the
house.
¶2 The circuit court granted the Defendants’ motions to dismiss the
Waschers’ negligence claims stemming from the original construction of the house,
concluding those claims were barred by the economic loss doctrine. The court later
granted summary judgment in favor of the Defendants on the Waschers’ breach of
contract claims stemming from the original construction of the home, concluding
those claims were barred by the applicable statute of limitations and statute of
repose—WIS. STAT. §§ 893.43 and 893.89 (2015-16),2 respectively. However, the
court denied Carved Stone’s motion for summary judgment regarding the
1
The Waschers have asserted a direct action claim against Continental Western as the
insurer for Mathwig Homes & Remodeling, LLC, and Roger Mathwig Builders (collectively,
“Mathwig Builders”). Mathwig Builders served as the general contractor for the original
construction of the Waschers’ home. We refer to Roger Mathwig, individually, by his first and last
names.
2
The statute of repose, WIS. STAT. § 893.89, was amended in 2017 to shorten the
applicable exposure period from ten to seven years. See 2017 Wis. Act 235, § 27. On appeal, the
parties agree that the pre-2017 version of the statute applies to this case. We therefore apply the
pre-2017 version of the statute. Accordingly, all references to the Wisconsin Statutes are to the
2015-16 version.
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No. 2020AP1961
Waschers’ negligence and breach of contract claims arising out of Carved Stone’s
later repair work.
¶3 The Waschers now appeal the circuit court’s orders dismissing their
negligence and breach of contract claims stemming from the original construction
of their home. Carved Stone cross-appeals, arguing that the court erred by denying
its summary judgment motion with respect to the claims arising out of its later repair
work.3 We conclude the court did not err either by dismissing the negligence and
breach of contract claims stemming from the original construction of the Waschers’
home, or by denying summary judgment on the claims arising from Carved Stone’s
later repair work. We therefore affirm.
BACKGROUND
¶4 In 2005, the Waschers hired Mathwig Builders to act as the general
contractor for the construction of their home in Greenville, Wisconsin. The exterior
walls and patio of the home were to be covered with stone cladding. Mathwig
Builders hired Natural Surfaces and Carved Stone as subcontractors for the project.
The parties agree that Carved Stone supplied the stone and provided guidance
regarding its installation, while Natural Surfaces actually installed the stone on the
Waschers’ home.
¶5 On November 3, 2008, the Town of Greenville inspected the
Waschers’ residence and granted them permission to occupy the residence as of that
date. During her deposition, Pamela Wascher testified that the Waschers moved
3
The Waschers petitioned for leave to appeal the nonfinal orders dismissing their
negligence and breach of contract claims against Carved Stone stemming from the original
construction of their home. Carved Stone then petitioned for leave to appeal the nonfinal order
denying its summary judgment motion with respect to the Waschers’ claims arising from the later
repairs. We granted both petitions in an order dated January 6, 2021.
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No. 2020AP1961
into the home in mid-November of 2008, although she did not know the exact date.
Pamela further testified that “right away in 2009,” the Waschers noticed
“effervescence on the main patio, the main lanai, a lot of white substance coming
through the stone.” At that time, the effervescence was present only on the flat,
horizontal stone on the patio. However, Pamela testified that in 2010 the
effervescence was “all over the stone,” on both horizontal and vertical surfaces.
¶6 In 2010, the Waschers hired Rob Ripley of Carved Stone to repair the
stone cladding on their residence. Pamela testified that during those repairs, stone
was removed from one of the home’s vertical walls, revealing that flashing had not
been installed behind the stone, “which means that all the water was going behind
the stone and into the patio.” The Waschers paid Carved Stone for the 2010 repair
work. They approached Roger Mathwig about having him pay for that work, but
he responded that the Waschers would need to sue him in order for him to pay.
¶7 The Waschers then retained an attorney, who sent a demand letter to
Mathwig Builders’ counsel on September 30, 2010, requesting reimbursement for
repair costs in the amount of $22,328.83. Continental Western ultimately paid the
Waschers approximately $14,000. In exchange for that amount, on February 24,
2011, the Waschers signed a “Property Damage Settlement and Release,” which
purported to release Mathwig Builders and Natural Surfaces from “any and all
claims … arising out of the accident or incident that occurred on or about
October 1st, 2009, at or near Greenville WI.” Pamela testified that the release was
“for the incident of this flashing situation.”
¶8 Pamela further testified that in June or July of 2012, the Waschers
“first observed” stone falling off of their home’s vertical exterior walls. At some
point in 2012, the Waschers again hired Carved Stone to perform repair work on the
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No. 2020AP1961
stone cladding. Ripley has averred that Carved Stone’s repair work “was
completed, at the very latest, by September 18, 2012.” In contrast, the Waschers
allege that invoices from Carved Stone show that it continued performing repair
work on their home until 2017.
¶9 From 2014 to 2018, the Waschers hired various other firms to inspect
the stone on their home and explore repair options. In August 2018, pursuant to
WIS. STAT. § 895.07(2), the Waschers sent letters to Continental Western (as
Mathwig Builders’ insurer), Carved Stone, and Natural Surfaces, providing notice
of the Waschers’ claims against those entities and granting them the opportunity to
repair the alleged defects. The Waschers received no responses to their August 2018
letters.
¶10 The Waschers subsequently filed this lawsuit against the Defendants
on November 20, 2018. The complaint alleged that the work performed by Mathwig
Builders, Carved Stone, and Natural Surfaces was “deficient in regard to attaching
and adhering the stone to the house” and that those entities “deviated from industry
standards in construction for adhering the stone to the home” and “acted in a careless
and negligent manner.” The complaint also alleged that Carved Stone had been
hired to perform repair work in 2012, but its work “to remedy the deficiencies in the
stone cladding and horizontal deck stone topping systems on the house … created
new problems with the house which included water damage.” The complaint sought
damages, as well as “an injunction ordering Defendants to perform remedial work”
at the Waschers’ home.
¶11 The Defendants moved to dismiss, arguing that the Waschers’
complaint failed to state a claim upon which relief could be granted. Specifically,
the Defendants argued that: (1) the Waschers’ negligence claims were barred by
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No. 2020AP1961
the economic loss doctrine; (2) the Waschers’ breach of contract claims were barred
by the statute of limitations for contract actions, WIS. STAT. § 893.43; and (3)
WISCONSIN STAT. § 893.89—the statute of repose for actions alleging injuries
resulting from improvements to real property—barred all of the Waschers’ claims
stemming from the original construction of their residence.
¶12 The circuit court granted the Defendants’ motions to dismiss in part,
concluding that the Waschers’ negligence claims stemming from the original
construction of their residence were barred by the economic loss doctrine.
However, the court denied the Defendants’ motions to dismiss the Waschers’ breach
of contract claims. Although the court concluded that the “work complete[d] in
2008” was “clearly barred by the statute of limitations,” it determined that the
Waschers’ complaint adequately alleged a defense to the statute of limitations—i.e.,
equitable estoppel.4 The court further concluded that the facts alleged in the
complaint did not establish that the Waschers’ claims arising from Carved Stone’s
later repair work were barred by the statute of limitations.
¶13 The Defendants then moved for summary judgment, arguing the
undisputed facts established that: (1) the statute of repose barred all of the
Waschers’ claims stemming from the original construction of their residence; (2) the
statute of limitations barred the Waschers’ breach of contract claims stemming from
the original construction, including their claim for injunctive relief; and (3) the
doctrine of equitable estoppel did not apply. Carved Stone also argued that the
Waschers’ breach of contract and negligence claims stemming from Carved Stone’s
4
The circuit court did not address the statute of repose, but it noted that the Waschers’
estoppel argument “would also apply to the statute of repose.”
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No. 2020AP1961
later repair work were barred, respectively, by the statute of limitations and the
economic loss doctrine.
¶14 The circuit court granted the Defendants summary judgment on the
Waschers’ breach of contract claims stemming from the original construction of
their home, concluding that those claims were barred by the statutes of limitations
and repose, and that the doctrine of equitable estoppel did not apply. The court
denied summary judgment, however, with respect to the claims arising from Carved
Stone’s later repair work. The court concluded the economic loss doctrine did not
apply to those claims because the Waschers contended that Carved Stone “provided
primarily labor and therefore the contracts for the repair work were contracts for
services,” and Carved Stone “[did] not dispute that the contracts were services
contracts.” The court also rejected Carved Stone’s argument that the statute of
limitations barred the Waschers’ breach of contract claim stemming from the later
repair work, concluding that any breach of contract claim for work performed after
November 20, 2012, was timely.
¶15 The Waschers now appeal, arguing that the circuit court erred by
dismissing their negligence and breach of contract claims stemming from the
original construction of their residence. Carved Stone cross-appeals, arguing that
the court erred by denying its motion for summary judgment regarding the
Waschers’ claims arising from Carved Stone’s later repair work.
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No. 2020AP1961
DISCUSSION
I. The Waschers’ Appeal
¶16 As noted above, the Waschers argue that the circuit court erred by
granting the Defendants’ motion to dismiss their negligence claims stemming from
the original construction of their home based on the economic loss doctrine, and by
granting the Defendants summary judgment on their breach of contract claims
stemming from the original construction based on the statutes of limitations and
repose. We affirm the court’s rulings, but on slightly different grounds.
¶17 Specifically, we conclude the undisputed facts establish that: (1) the
statute of repose bars the Waschers’ negligence claims stemming from the original
construction of their home; (2) the statute of limitations bars the Waschers’ breach
of contract claims stemming from the original construction; (3) neither equitable
estoppel, the repair doctrine, nor the continuous treatment rule extends the statute
of limitations or statute of repose; (4) the statutory notice provided by the Waschers
pursuant to WIS. STAT. § 895.07(2) did not extend the statute of limitations or statute
of repose; (5) the statutes of limitations and repose bar the Waschers’ claim for
injunctive relief; and (6) the fifteen-year statute of repose for product liability claims
in WIS. STAT. § 895.047(5) does not apply to the Waschers’ claims against Natural
Surfaces. Because we conclude the undisputed facts establish that the statutes of
limitations and repose bar all of the Waschers’ claims stemming from the original
construction of their residence, we need not address the Waschers’ argument that
the circuit court erred by concluding that their negligence claims stemming from the
original construction were barred by the economic loss doctrine. See Patrick Fur
Farm, Inc. v. United Vaccines, Inc., 2005 WI App 190, ¶8 n.1, 286 Wis. 2d 774,
703 N.W.2d 707 (court of appeals decides cases on the narrowest possible grounds).
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No. 2020AP1961
A. Standard of Review
¶18 We review a grant of summary judgment independently, using the
same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264, ¶6,
306 Wis. 2d 513, 743 N.W.2d 843. Summary judgment is appropriate where “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.” WIS. STAT.
§ 802.08(2). In this case, our review of the circuit court’s summary judgment
decision requires us to interpret and apply various statutes. The interpretation of a
statute and its application to a set of undisputed facts present questions of law for
our independent review. McNeil v. Hansen, 2007 WI 56, ¶7, 300 Wis. 2d 358, 731
N.W.2d 273.
B. Statute of Repose
¶19 WISCONSIN STAT. § 893.89, the statute of repose for actions for
injuries resulting from improvements to real property, provides that subject to
certain exceptions,
no cause of action may accrue and no action may be
commenced … against the owner or occupier of the property
or against any person involved in the improvement to real
property after the end of the exposure period, to recover
damages for any injury to property, for any injury to the
person, or for wrongful death, arising out of any deficiency
or defect in the design, land surveying, planning, supervision
or observation of construction of, the construction of, or the
furnishing of materials for, the improvement to real property.
Sec. 893.89(2). The statute defines the term “exposure period” as “the 10 years
immediately following the date of substantial completion of the improvement to real
property.” Sec. 893.89(1). “Generally speaking, WIS. STAT. § 893.89 provides that
9
No. 2020AP1961
persons involved in improvements to real property may not be sued more than ten
years after substantial completion of a project.” Kalahari Dev., LLC v. Iconica,
Inc., 2012 WI App 34, ¶6, 340 Wis. 2d 454, 811 N.W.2d 825.
¶20 In this case, there is no dispute that the Waschers’ residence
constitutes an improvement to real property. The parties disagree, however, as to
when the construction of the Waschers’ residence was substantially completed, such
that the ten-year exposure period began to run. The circuit court concluded the
undisputed facts established that the residence was substantially completed on
November 3, 2008—the date the Town of Greenville granted the Waschers
permission to occupy the residence. We agree with that conclusion.
¶21 Our decision in Holy Family Catholic Congregation v. Stubenrauch
Associates, Inc., 136 Wis. 2d 515, 402 N.W.2d 382 (Ct. App. 1987), is instructive.
In that case, we were required to determine when a church building had been
substantially completed for purposes of WIS. STAT. § 893.89. Holy Fam., 136
Wis. 2d at 517. We concluded the undefined term “substantial completion” in
§ 893.89 was ambiguous because “[t]he vagueness of the word ‘substantial,’
without further definition, justifiably invites the parties to disagree as to the time the
church was largely, but not wholly, completed.” Holy Fam., 136 Wis. 2d at 521.
After considering the statute’s legislative history, we determined the legislature
intended “that the [exposure] period should begin to run when planners, designers,
and contractors lose a significant amount of control over the improvement.” Id. at
523. We then held that “[a] convenient and fair measure of the time when control
over the improvement shifts from the builders to the owner is the date ‘when
construction is sufficiently completed so that the owner or his representative can
occupy or use the improvement for the use it was intended.’” Id. (quoting Van Den
Hul v. Baltic Farmers Elevator Co., 716 F.2d 504, 508 (8th Cir. 1983)).
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No. 2020AP1961
¶22 Here, the undisputed facts establish that the Town of Greenville
granted the Waschers permission to occupy their residence on November 3, 2008.5
The Waschers do not dispute that, if they had so desired, they could have moved
into the residence on that date. Thus, as of November 3, 2008, the Waschers could
“occupy or use [their residence] for the use it was intended.” See id. (quoting
Van Den Hul, 716 F.2d at 508). As such, the circuit court properly determined that
for purposes of WIS. STAT. § 893.89, the Waschers’ residence was substantially
completed on November 3, 2008. The Waschers filed their complaint in this lawsuit
on November 20, 2018—more than ten years after the date of substantial
completion. Consequently, the statute of repose bars the Waschers’ negligence
claims stemming from the original construction of their residence.6
¶23 The Waschers suggest that Holy Family actually supports their
position because the Holy Family court rejected the defendant architect’s contention
that the church building was substantially completed on the date the architect issued
a certificate of substantial completion to the congregation. See Holy Fam., 136
Wis. 2d at 521-22. After adopting the definition of “substantial completion” set
forth above, the court determined that the church building was substantially
completed on the date “when the congregation first occupied the building for its
5
The Waschers assert no “competent evidence” shows that their residence was
substantially completed on November 3, 2008. They refer to the Town of Greenville’s inspection
report from that date as “an unexplained record … without a witness to explain it.” As Continental
Western notes, however, the Waschers have not developed any argument—either in the circuit
court or on appeal—challenging the inspection report’s authenticity or admissibility. We therefore
reject the Waschers’ undeveloped assertion that the inspection report is not “competent evidence”
as to the date their residence was substantially completed. See State v. Pettit, 171 Wis. 2d 627,
646-47, 492 N.W.2d 633 (Ct. App. 1992) (court of appeals need not address undeveloped
arguments).
6
The statute of repose would also bar the Waschers’ breach of contract claims stemming
from the original construction of their residence. However, as we explain below, those claims are
instead barred by WIS. STAT. § 893.43—the six-year statute of limitations applicable to contract
claims.
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No. 2020AP1961
intended purpose”—i.e., the date it first met for services at the building. Id. at 525.
Based on that determination, the Waschers argue that their residence was not
substantially completed until the date they actually moved in, which Pamela
Wascher testified was in mid-November of 2008. Because the Waschers’ complaint
was filed on November 20, 2018, they contend there is at least a genuine issue of
material fact as to whether they filed suit within the ten-year exposure period.
¶24 We do not find this argument persuasive. The Holy Family court
“reject[ed] the notion that the architect may unilaterally determine the [exposure]
period’s commencement,” reasoning that “it is the court, not the architect, who
determines the date of substantial completion.” Id. at 524. This case, however,
does not involve a certificate of substantial completion issued by one of the
Defendants; it involves an occupancy permit issued by the Town of Greenville—a
neutral third party. That circumstance was not present in Holy Family.
¶25 Regardless, Holy Family does not stand for the proposition that, in all
cases, substantial completion occurs on the date when the owner actually occupies
an improvement to real property for the first time. To the contrary, the Holy Family
court expressly held that substantial completion occurs “when construction is
sufficiently completed so that the owner or his representative can occupy or use the
improvement for the use it was intended.” Id. at 523 (emphasis added) (quoting Van
Den Hul, 716 F.2d at 508). In Holy Family, there was evidence of the date the
congregation first used the church building for services, but the court did not cite
any evidence as to the date a certificate of occupancy was granted by the governing
municipality. Under those circumstances, the court concluded substantial
completion of the building occurred on the date when the congregation first used
the building.
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¶26 Here, in contrast, undisputed evidence shows that the Waschers could
have used their home for its intended purpose beginning on November 3, 2008, the
date the Town of Greenville granted them permission to occupy the residence. The
Holy Family court emphasized that the deciding factor in the substantial completion
analysis is the ability to occupy or use an improvement to real property for its
intended purpose, rather than actual occupation or use, when it stated: “[A] factor
that considers the date the owner can occupy a building prevents the owner from
affecting the [exposure] period’s commencement by arbitrarily delaying
occupancy.” Id. at 524.
¶27 The Waschers also assert that their residence was not substantially
complete on November 3, 2008, because the Town of Greenville’s inspection report
from that date noted that access to the attic was not approved and that some handrails
appeared to be temporary. This argument misses the mark because the statute of
repose does not state that the exposure period begins to run on the date when an
improvement to real property is complete; instead, the statute merely requires
“substantial completion.” WIS. STAT. § 893.89(1). Under the definition of
“substantial completion” set forth in Holy Family, it is not dispositive that certain
items at the Waschers’ residence remained incomplete as of November 3, 2008, as
long as the residence was sufficiently completed so that the Waschers could occupy
or use it for its intended purpose. As we have already explained, the Waschers were
granted permission to occupy the residence on November 3, 2008, and they could
have occupied it beginning on that date.
¶28 Finally, the Waschers assert that the construction of their residence
could not have been substantially complete on November 3, 2008, because the
Defendants failed to install flashing behind the stone cladding, as required by the
design drawings. The Waschers contend the “[d]eliberate omission of a key
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No. 2020AP1961
component of the structure renders it incomplete, whether the owners move in or
not.” The plaintiff congregation raised a similar argument in Holy Family,
contending that “a church building constructed with a leaky roof cannot be
considered substantially completed.” Holy Fam., 136 Wis. 2d at 525. We rejected
that argument, explaining that it improperly “urge[d] us to focus on the quality of
construction, something not contemplated by the statute.” Id. Here, too, the
Waschers’ claim that the omission of flashing prevented their residence from being
substantially complete improperly invites us to focus on the quality of the
Defendants’ work, rather than on whether the residence was sufficiently completed
for the Waschers to use or occupy it.
¶29 Because the Waschers’ residence was substantially complete on
November 3, 2008, the Waschers were required to bring any negligence claims
stemming from the original construction by November 3, 2018. They failed to do
so, as their complaint was not filed until November 20, 2018. Accordingly, the
statute of repose bars the Waschers’ negligence claims stemming from the original
construction of their residence, and the circuit court properly dismissed those
claims.
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C. Statute of Limitations
¶30 The Waschers next argue that the circuit court erred by determining
that WIS. STAT. § 893.43—the statute of limitations for contract claims—barred
their breach of contract claims arising from the original construction of their
residence. Section 893.43(1) provides, in relevant part: “[A]n action upon any
contract, obligation, or liability, express or implied … shall be commenced within
6 years after the cause of action accrues or be barred.”
¶31 The Waschers initially contend that the statute of repose (WIS. STAT.
§ 893.89), rather than the statute of limitations (WIS. STAT. § 893.43), applies to
their breach of contract claims. As noted above, the statute of repose generally
provides that an action for injury resulting from an improvement to real property
must be commenced within the ten-year exposure period immediately following the
substantial completion of the improvement to real property. Sec. 893.89(1)-(2).
However, subsec. (3)(a) of the statute expressly states:
Except as provided in pars. (b) and (c), if a person sustains
damages as the result of a deficiency or defect in an
improvement to real property, and the statute of limitations
applicable to the damages bars commencement of the cause
of action before the end of the exposure period, the statute of
limitations applicable to the damages applies.
Sec. 893.89(3)(a). We have previously held that “when an action is one for contract
damages, … § 893.89(3)(a) directs that its ten-year time limit be compared with the
time limit applicable to contract actions to see which is shorter, and that the shorter
limit applies.” Kalahari, 340 Wis. 2d 454, ¶11. Accordingly, the six-year limitation
period in § 893.43(1) applies to the Waschers’ breach of contract claims, rather than
the ten-year statute of repose.
¶32 The Waschers cite WIS. STAT. § 893.89(3)(b), which provides:
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No. 2020AP1961
If, as the result of a deficiency or defect in an improvement
to real property, a person sustains damages during the period
beginning on the first day of the 8th year and ending on the
last day of the 10th year after the substantial completion of
the improvement to real property, the time for commencing
the action for the damages is extended for 3 years after the
date on which the damages occurred.
The Waschers assert that subsec. (3)(b) “extends the time to commence suit if
property damage occurs between year 8 and year 10 after substantial completion,”
giving a plaintiff three additional years after the damage occurred in which to file
suit. The Waschers contend that Pamela Wascher’s deposition testimony and
affidavit “make plain that the damages are ongoing” and that the Waschers’ property
“suffered damage due to defendants’ mistakes between November 3, 2015 and
November 3, 2018 and even beyond.” Accordingly, the Waschers assert that
§ 893.89(3)(b) applies and, as a result, the statute of repose supplanted the statute
of limitations and “remain[ed] open until November 2021.”
¶33 As the Waschers acknowledge, however, we rejected an identical
argument based on WIS. STAT. § 893.89(3)(b) in Kalahari. We expressly held in
Kalahari that the ten-year exposure period in § 893.89 “is not intended to override
shorter applicable statutes of limitations, such as the shorter six-year statute of
limitations on contract actions.” Kalahari, 340 Wis. 2d 454, ¶19. We further held
that when an action is time-barred by the six-year statute of limitations, “it makes
no sense to say that the subsection (3)(b) exception, extending the ten-year time
limit, applies because the damage occurred after year 7.” Kalahari, 340 Wis. 2d
454, ¶19. Although the Waschers suggest that Kalahari was wrongly decided, we
are bound by our own published precedent. See Cook v. Cook, 208 Wis. 2d 166,
190, 560 N.W.2d 246 (1997). We therefore reject the Waschers’ argument that the
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No. 2020AP1961
statute of repose, rather than the statute of limitations, applies to their breach of
contract claims and permitted them to bring those claims until November 2021.
¶34 We further conclude that the circuit court properly determined the
statute of limitations barred the Waschers’ breach of contract claims stemming from
the original construction of their residence. As noted above, the statute of
limitations provides that an action upon any contract “shall be commenced within 6
years after the cause of action accrues or be barred.” WIS. STAT. § 893.43(1).
Nearly thirty years ago, our supreme court held that “under sec. 893.43, a contract
cause of action accrues at the moment the contract is breached, regardless of whether
the injured party knew or should have known that the breach occurred.” CLL
Assocs. Ltd. P’ship v. Arrowhead Pac. Corp., 174 Wis. 2d 604, 607, 497 N.W.2d
115 (1993). The CLL court noted that its holding in that regard was supported by a
“90-year line of precedent.” Id. at 609.
¶35 Here, the Waschers have alleged that the Defendants breached their
contracts with the Waschers by failing to properly install the stone cladding on the
Waschers’ home during its original construction. The Defendants assert—and the
Waschers do not dispute—that any breach of contract relating to the original
construction must have occurred by November 3, 2008—the date the Waschers
were granted permission to occupy the home. The Waschers’ breach of contract
claims therefore accrued, at the latest, on November 3, 2008. As such, the statute
of limitations required them to file suit by November 3, 2014. Because the
Waschers did not file their complaint until November 20, 2018, the statute of
limitations bars their breach of contract claims stemming from the original
construction of their home.
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¶36 The Waschers assert that a breach of contract claim cannot accrue
until damage has occurred. They then contend that the Defendants have failed to
establish when the relevant damage in this case took place. Consequently, the
Waschers argue the Defendants have failed to show, as a matter of law, that the
statute of limitations bars the Waschers’ breach of contract claims stemming from
the original construction of their residence.
¶37 We reject this argument because it disregards our long-standing
precedent holding that, for purposes of the statute of limitations, a breach of contract
claim accrues at the time of the breach. See CLL, 174 Wis. 2d at 607; see also
Cook, 208 Wis. 2d at 189 (stating that the Wisconsin Supreme Court is “the only
state court with the power to overrule, modify or withdraw language from a previous
supreme court case”). In any event, Pamela Wascher testified during her deposition
that “right away in 2009,” the Waschers noticed “effervescence on the main patio,
the main lanai, a lot of white substance coming through the stone.” Pamela also
testified that in 2010 the effervescence was “all over the stone,” on both horizontal
and vertical surfaces. This testimony confirms that the Waschers suffered damage
as a result of the Defendants’ alleged contractual breaches in 2009 and 2010. Even
if the Waschers’ breach of contract claims accrued as late as 2010, those claims
would still be barred by the six-year limitation period in WIS. STAT. § 893.43(1), as
the Waschers did not file their complaint until November 20, 2018.
D. Equitable Estoppel, the Repair Doctrine, and the Continuous Treatment
Rule
¶38 The Waschers next argue that even if their breach of contract and
negligence claims stemming from the original construction of their residence would
otherwise be barred by the statutes of limitations and repose, “[e]stoppel, the repair
doctrine, and the continuous treatment rule extend the statutes of limitations and
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repose.” The Waschers also note that the statute of repose “never applies to
concealed deficiencies or defects.” See WIS. STAT. § 893.89(4)(a).
¶39 The Waschers rely on Wosinski v. Advance Cast Stone Co., 2017 WI
App 51, 377 Wis. 2d 596, 901 N.W.2d 797, in support of their argument regarding
WIS. STAT. § 893.89(4)(a). The claims in Wosinski arose after a large concrete
panel fell from a parking garage, killing one individual and injuring three others.
Wosinski, 377 Wis. 2d 596, ¶7. The plaintiffs sued various parties that had been
involved in the parking garage’s construction. Id., ¶16. On appeal, we considered
whether the plaintiffs’ claims were barred by the ten-year statute of repose. Id.,
¶¶33-34.
¶40 In answering that question, we noted that the statute of repose does
not apply “in cases where ‘[a] person … commits fraud, concealment or
misrepresentation related to a deficiency or defect in the improvement to real
property.’” Id., ¶35 (quoting WIS. STAT. § 893.89(4)(a)). We then concluded there
was sufficient evidence to support the jury’s findings that one defendant, Advance
Cast Stone (ACS), had concealed and misrepresented a defect in the parking garage
because: (1) ACS had deviated from the planned method of installing the concrete
panel, but the “As-Built Drawings” filed with Milwaukee County did not reflect that
change; (2) ACS’s foreman for the project testified that he discussed the changes in
the installation method with ACS’s owner, and “they agreed not to put the changes
in writing”; and (3) the testimony of another ACS employee gave rise to a
reasonable inference that the foreman “misled one of his own employees with regard
to the installation method being utilized.” Id., ¶¶36-38.
¶41 Wosinski does not support the Waschers’ claim that the exception to
the statute of repose in WIS. STAT. § 893.89(4)(a) applies in this case. The Waschers
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argue that exception applies because the deficiencies in the Defendants’ work—
specifically, the omission of flashing and the use of an inappropriate mortar to affix
the stones—were not readily apparent and were therefore concealed from the
Waschers. We disagree. In Wosinski, there was evidence that ACS took affirmative
actions to conceal the method it had used to install the concrete panels and to
mislead Milwaukee County regarding the installation method, evidencing ACS’s
intent to conceal and misrepresent the defective installation method.
¶42 Conversely, in this case, the Waschers point to no evidence that the
Defendants actively concealed from them the type of mortar used or the fact that
flashing had not been installed. Although the placement of the stone cladding on
the house may have hidden the mortar from view and obscured the fact that flashing
had not been installed, there is no evidence to suggest that the Defendants placed
the stone on the home with the intent to conceal any alleged defects from the
Waschers. Absent such evidence of intent, the fact that the Defendants’ work was
allegedly defective is not sufficient, in and of itself, to show that they engaged in
fraud, concealment, or misrepresentation, as required by WIS. STAT.
§ 893.89(4)(a).7
¶43 Turning to the Waschers’ arguments regarding equitable estoppel, in
State ex rel. Susedik v. Knutson, 52 Wis. 2d 593, 596-97, 191 N.W.2d 23 (1971),
our supreme court held that a defendant should be estopped from asserting the
statute of limitations as a defense where: (1) the defendant was guilty of fraudulent
or inequitable conduct; (2) the aggrieved party relied on the defendant’s acts or
representations and, as a result, failed to commence an action within the statutory
7
In their reply brief, the Waschers assert that “neither concealment nor misrepresentation
require intentional deception.” They do not, however, cite any legal authority in support of that
proposition, and we do not find it persuasive.
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No. 2020AP1961
limitation period; (3) the defendant’s acts, promises, or representations occurred
before the expiration of the limitation period; and (4) after the inducement for delay
ceased to operate, the aggrieved party did not unreasonably delay in filing suit. We
agree with the circuit court that the undisputed facts show the Waschers cannot
establish the elements required for the application of equitable estoppel in this case.
¶44 With respect to Continental Western, the Waschers allege that
Roger Mathwig directed Carved Stone to omit the flashing behind the stone
cladding “after assuring Pamela Wascher no water could possibly infiltrate the
stone.” Continental Western denies that Mathwig knew the flashing had been
omitted or that he represented that omitting the flashing would not cause problems.
Nevertheless, Continental Western notes it is undisputed that the Waschers knew of
the flashing’s omission no later than February 24, 2011, as Pamela Wascher
admitted during her deposition testimony that the Waschers had “signed a release
for the incident of this flashing situation” on that date. Pamela also testified that
before the release was signed, the Waschers approached Roger Mathwig about
having him pay for repair work performed in 2010, and he told the Waschers they
would need to file suit against him in order for him to pay. The Waschers
nevertheless waited until November 20, 2018, to file this lawsuit. We agree with
the circuit court that the Waschers have not pointed to any evidence showing that
they failed to file suit within the time periods permitted in the statutes of limitations
and repose as a result of their reliance on any acts or representations by Roger
Mathwig.
¶45 With respect to Natural Surfaces and Carved Stone, the Waschers
allege that the thin-set mortar that Carved Stone recommended and that Natural
Surfaces used to adhere the stone cladding “did not even closely meet the weight
restrictions” required by the applicable building code. The Waschers further assert
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No. 2020AP1961
that Natural Surfaces and Carved Stone were unqualified to make the “critical
engineering judgments” needed to determine whether the mortar would be adequate
to hold the vertical stones in place.
¶46 These allegations, if true, might establish that Carved Stone and
Natural Surfaces were negligent in the performance of their duties and breached
their contracts with the Waschers. However, these allegations do not establish that
either Natural Surfaces or Carved Stone engaged in any fraudulent or inequitable
conduct that the Waschers relied upon in not commencing suit within the statutory
time limits. See Susedik, 52 Wis. 2d at 596-97. Again, like the circuit court, we
conclude the Waschers “do not point to any action by Defendants that induced them
not to sue.”
¶47 The Waschers next argue that “[t]he repair doctrine and the
continuous treatment rule extend[ed] the statute of limitations” on their breach of
contract claims stemming from the original construction of their home. They
contend the repair doctrine is a legal principle that “tolls the statute of limitations
while the parties jointly repair and remedy construction defects.” In support of this
argument, however, the Waschers cite only cases from other jurisdictions. They
concede that no Wisconsin court has addressed or adopted the repair doctrine. We
decline to do so as a matter of first impression in this case.
¶48 The Waschers also assert that under the continuous treatment rule,
“patients who physicians treat for ongoing problems risk no statute of limitation
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No. 2020AP1961
until treatment ends.”8 The Waschers assert that one New York court has “applied
the continuous treatment rule to toll the running of the breach of contract statute of
limitations in a construction case.” Again, however, the Waschers cite no
Wisconsin authority supporting the proposition that the continuous treatment rule
can apply to a breach of contract claim arising from allegedly deficient construction.
We decline to so hold in this case as a matter of first impression.
E. Statutory Notice Under WIS. STAT. § 895.07(2)
¶49 WISCONSIN STAT. § 895.07(2) provides that before commencing an
action against a contractor or supplier regarding a construction defect, a claimant
must deliver a written notice to the contractor or supplier containing a description
of the claim and must give the contractor or supplier the opportunity to repair or
remedy the alleged defect. Subsection (9) of the statute further states:
If, during the pendency of the notice, inspection, offer,
acceptance, or repair process, an applicable limitation period
would otherwise expire, the limitation period is tolled
pending completion of the notice of claim process described
8
In Tamminen v. Aetna Casualty & Surety Co., 109 Wis. 2d 536, 551-53, 327 N.W.2d
55 (1982), our supreme court expressly declined to adopt the “continuous treatment rule”—i.e., a
rule “that the statute of limitations for medical malpractice actions commences to run from the last
day the plaintiff receives treatment from the defendant health care provider for the same or related
condition as that which is the subject matter of the complaint.” The court instead adopted a rule
that
where there is a continuum of negligent medical care related to a
single condition occasioned by negligence, there is but one cause
of action; and if any act of negligence within that continuum falls
within the period during which suit may be brought, the plaintiff
is not obliged to split his cause of action but may bring suit for the
consequences of the entire course of conduct.
Id. at 556. Our supreme court has since referred to this rule as the “continuous negligent treatment
doctrine.” See Robinson v. Mount Sinai Med. Ctr., 137 Wis. 2d 1, 21 n.11, 402 N.W.2d 711(1987) (emphasis omitted). Although the Waschers refer to the continuous treatment rule, we
construe their argument as asserting that the continuous negligent treatment doctrine should apply
in this case.
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No. 2020AP1961
in this section. This subsection shall not be construed to
revive a limitation period that has expired before the date on
which a claimant’s written notice of claim is served or
extend any applicable statute of repose.
Sec. 895.07(9).
¶50 It is undisputed that the Waschers provided the notice required by
WIS. STAT. § 895.07(2) to the Defendants in August 2018. The Waschers contend
that pursuant to § 895.07(9), that notice tolled both the statute of limitations and the
statute of repose. Subsection (9) expressly states, however, that it shall not be
construed to revive a limitation period that expired before the date on which the
claimant’s notice of claim was served. Sec. 895.07(9). As explained above, the
statute of limitations applicable to the Waschers’ breach of contract claims arising
from the original construction of their residence expired in November 2014—long
before the Waschers gave the written notice required by § 895.07(2) in August 2018.
Furthermore, although the statute of repose had not yet expired in August 2018,
§ 895.07(9) “shall not be construed to … extend any applicable statute of repose.”
We therefore reject the Waschers’ claim that the notice they provided under
§ 895.07(2) extended either the statute of limitations or the statute of repose.
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F. Claim for Injunctive Relief
¶51 The Waschers next argue that the statutes of limitations and repose do
not apply to their claim for injunctive relief because both statutes apply only to
actions seeking “damages.” We disagree. The statute of limitations expressly states
that it applies to “an action upon any contract, obligation, or liability, express or
implied.” WIS. STAT. § 893.43(1). Nothing in the plain language of the statute
limits its application to actions seeking damages, as opposed to injunctive relief. As
such, the statute of limitations plainly applies to the Waschers’ request for an
injunction.
¶52 In contrast, the statute of repose states that it applies to actions “to
recover damages.” WIS. STAT. § 893.89(2). Nevertheless, we conclude that under
the circumstances of this case, the statute of repose does apply to the Waschers’
claim for injunctive relief.
¶53 Our supreme court has explained that an injunction
is a preventive order looking to the future conduct of the
parties. To obtain an injunction, a plaintiff must show a
sufficient probability that future conduct of the defendant
will violate a right of will and injure the plaintiff. To invoke
the remedy of injunction the plaintiff must moreover
establish that the injury is irreparable, i.e. not adequately
compensable in damages.
Pure Milk Prods. Co-op. v. National Farmers Org., 90 Wis. 2d 781, 800, 280
N.W.2d 691 (1979) (citations omitted). “[I]f an equitable action is providing
compensation for past wrongs—if it is ‘remedial in nature’—it cannot be lumped
indiscriminately with a typical injunction, because it is serving a different purpose
from a typical injunction.” Johnson Controls, Inc. v. Employers Ins. of Wausau,
2003 WI 108, ¶43, 264 Wis. 2d 60, 665 N.W.2d 257.
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No. 2020AP1961
¶54 The Waschers’ complaint sought an injunction “ordering Defendants
to perform remedial work” at the Waschers’ home. That request was not aimed at
preventing some future conduct by the Defendants that would injure the Waschers
or violate their rights. Rather, the Waschers’ request for injunctive relief was, at its
core, remedial in nature—it sought to remedy allegedly deficient work that the
Defendants had already performed. We agree with the Defendants that under these
circumstances, the Waschers’ claim for injunctive relief “cannot be lumped
indiscriminately with a typical injunction, because it is serving a different purpose
from a typical injunction.” See id. While the Waschers assert that the injunction
“addresses future danger” because the stones falling from their residence present an
ongoing safety hazard, that circumstance does not change the fact that the relief the
Waschers seek is remedial in nature. Like the circuit court, we therefore reject the
Waschers’ assertion that the statute of repose does not apply to their claim for
injunctive relief.
G. Statute of Repose for Product Liability Claims
¶55 Finally, the Waschers assert that the thin-set mortar that Natural
Surfaces “selected and sold” was “inappropriate” for use in adhering the stone
cladding to the Waschers’ residence because the mortar was “grossly under
strength” and therefore “accommodated only a small fraction of the weight of the
stones.” The Waschers also assert that Natural Surfaces “sold the [mortar] to
Mathwig and installed it when building codes required a mechanical means of
attachment.” The Waschers therefore contend that the mortar was “a defective
component” that was “unfit for the setting in which Natural Surfaces employed it.”
As a result, the Waschers argue that Natural Surfaces—as the seller of the mortar—
is “strictly liable for the property damage that has ensued.” See WIS. STAT.
§ 895.047(1). The Waschers therefore contend that the fifteen-year statute of repose
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No. 2020AP1961
for product liability claims applies to their claims against Natural Surfaces. See
§ 895.047(5).
¶56 Natural Surfaces could be strictly liable as the seller of the mortar if,
among other things, the manufacturer of the mortar would also be strictly liable.
WIS. STAT. § 895.047(2)(a). In order to hold a manufacturer strictly liable in an
action for damages caused by a product, the plaintiff must prove “[t]hat the product
is defective because it contains a manufacturing defect, is defective in design, or is
defective because of inadequate instructions or warnings.” Sec. 895.047(1)(a). The
Waschers do not allege that the mortar Natural Surfaces used on their home
contained a manufacturing defect, was defective in design, or was defective due to
inadequate instructions or warnings. Instead, the Waschers simply assert that the
mortar was inappropriate for the setting in which it was used. Under these
circumstances, the Waschers have no claim under § 895.047, and the fifteen-year
statute of repose for product liability claims is inapplicable.
¶57 In their reply brief, the Waschers assert that Natural Surfaces not only
sold the mortar mix, but also manufactured the final mortar used to hold the stone
in place by combining the mortar mix with water. They then assert that the final
product—i.e., the mortar created by combining the mortar mix with water—was
defective because it was too weak to hold the stone. We reject this argument
because the Waschers cite no evidence that the mortar was defective because it was
improperly “manufactured” by Natural Surfaces. Instead, the Waschers have
consistently alleged that Natural Surfaces was negligent because it selected and
applied a mortar that was not appropriate for the context in which it was used. As
explained above, those allegations do not give rise to a product liability claim
because they do not allege that Natural Surfaces manufactured or sold a defective
product.
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H. Conclusion
¶58 In summary, we conclude that the applicable statute of repose, WIS.
STAT. § 893.89, bars the Waschers’ negligence claims stemming from the original
construction of their residence. We further conclude that the applicable statute of
limitations, WIS. STAT. § 893.43, bars the Waschers’ breach of contract claims
arising from the original construction. We reject each of the Waschers’ arguments
to the contrary. Accordingly, we affirm the circuit court’s orders dismissing the
Waschers’ negligence and breach of contract claims stemming from the original
construction of their home.
II. Carved Stone’s Cross-Appeal
¶59 In its cross-appeal, Carved Stone argues that the circuit court erred by
denying its summary judgment motion regarding the Waschers’ negligence and
breach of contract claims arising from repair work that Carved Stone performed on
the Waschers’ property subsequent to the original construction. Carved Stone
asserts the undisputed facts show that the Waschers’ negligence claim arising from
the later repair work was barred by the economic loss doctrine. Carved Stone further
argues that both the negligence and breach of contract claims stemming from the
later repair work were barred by the applicable statutes of limitations. We reject
each of these arguments.
A. Economic Loss Doctrine
¶60 “The economic loss doctrine is a judicially created doctrine under
which a purchaser of a product cannot recover from a manufacturer on a tort theory
for damages that are solely economic.” Linden v. Cascade Stone Co., 2005 WI
113, ¶6, 283 Wis. 2d 606, 699 N.W.2d 189 (citation omitted). The doctrine is not
28
No. 2020AP1961
applicable, however, to claims for the negligent provision of services. Insurance
Co. of N. Am. v. Cease Elec. Inc., 2004 WI 139, ¶52, 276 Wis. 2d 361, 688 N.W.2d
462.
¶61 In its primary cross-appeal brief, Carved Stone acknowledges the
Waschers’ argument that the economic loss doctrine does not apply to the
Waschers’ negligence claim stemming from Carved Stone’s later repair work
because that work was performed pursuant to a contract for services. Carved Stone
asserts, however, that the economic loss doctrine does apply because Carved Stone
“provided a product for the initial construction and the repair work done on the
lanai.”
¶62 We reject this argument because it ignores the basis for the circuit
court’s ruling that the economic loss doctrine did not apply to the Waschers’ claims
stemming from Carved Stone’s later repair work. In its summary judgment
decision, the court noted the Waschers had argued that Carved Stone “provided
primarily labor” in relation to the repair work and “therefore the contracts for the
repair work were contracts for services.” The court then observed that Carved Stone
“[did] not dispute that the contracts [for the later repair work] were services
contracts.” Accordingly, the court concluded that the Waschers could pursue tort
claims arising out of Carved Stone’s repair work “as long as those claims [were] not
barred by the statute of limitations.”
¶63 On appeal, Carved Stone does not address the circuit court’s
determination that Carved Stone did not dispute that the repair work was performed
pursuant to a contract for services. Nor does Carved Stone point to any portion of
the appellate record showing that it disputed that point during the circuit court
proceedings. An appellant’s failure to address the grounds on which the circuit
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No. 2020AP1961
court ruled constitutes a concession of the ruling’s validity. See Schlieper v. DNR,
188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994). Moreover, arguments raised
for the first time on appeal are generally deemed forfeited. Tatera v. FMC Corp.,
2010 WI 90, ¶19 n.16, 328 Wis. 2d 320, 786 N.W.2d 810. We therefore reject
Carved Stone’s assertion that the economic loss doctrine bars the Waschers’
negligence claim stemming from Carved Stone’s later repair work.
B. Statutes of Limitations
¶64 Carved Stone next argues that the Waschers’ negligence and breach
of contract claims arising from the later repair work are barred by the applicable
statutes of limitations. As discussed above, WIS. STAT. § 893.43(1) provides that
an action upon any contract must be commenced within six years after the cause of
action accrues. WISCONSIN STAT. § 893.52(1) similarly provides that “an action,
not arising on contract, to recover damages for an injury to real or personal property
shall be commenced within 6 years after the cause of action accrues or be barred.”
¶65 Carved Stone alleges the undisputed facts show that it last performed
repair work on the Waschers’ residence on September 18, 2012. Carved Stone
therefore asserts that the statutes of limitations for both the Waschers’ negligence
and breach of contract claims stemming from the repair work expired on September
18, 2018. Because the Waschers did not file their complaint until November 20,
2018, Carved Stone contends that their claims stemming from the repair work are
untimely.
¶66 We agree with the Waschers that a genuine issue of material fact exists
as to when Carved Stone last performed repair work at the Waschers’ residence.
Although Rob Ripley averred that Carved Stone last performed repair work at the
Waschers’ residence on September 18, 2012, the Waschers produced invoices for
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No. 2020AP1961
work that Carved Stone performed at the home as late as September 2017. In
addition, Pamela Wascher testified during her deposition that after 2012, Carved
Stone’s repair work at the property was “ongoing.” To the extent that any repair
work performed after November 20, 2012, caused damage to the Waschers’
property, the Waschers’ claims arising from that work would not be barred by either
WIS. STAT. § 893.43(1) or WIS. STAT. § 893.52(1).9
¶67 Moreover, the Waschers’ negligence claim stemming from
Carved Stone’s later repair work is subject to the discovery rule, which provides
that tort claims “accrue on the date the injury is discovered or with reasonable
diligence should be discovered, whichever occurs first.” See Hansen v. A.H.
Robins, Inc., 113 Wis. 2d 550, 560, 335 N.W.2d 578 (1983). Based on Pamela
Wascher’s deposition testimony, Carved Stone asserts that the Waschers first
became aware of problems arising from the 2012 repair work in June or July of
2012. The Waschers, however, contend that they first became aware of the damage
caused by the 2012 repair work upon receipt of a forensic engineering report in
September 2014. On this record, we conclude there is a genuine issue of material
fact as to when the Waschers discovered the damage allegedly caused by Carved
Stone’s repair work.
¶68 Accordingly, we affirm the circuit court’s order denying
Carved Stone’s summary judgment motion on the Waschers’ claims stemming from
the repair work that Carved Stone performed on their residence subsequent to the
9
Carved Stone asserts that any repair work performed after 2012 is irrelevant because the
Waschers’ complaint only alleged that Carved Stone performed repair work on their residence in
2012. The circuit court rejected this argument, reasoning that it “ignore[d] the deposition testimony
[of Pamela Wascher] that Carved Stone never remedied the problem despite working on repairs
through 2017.” The court also noted that Carved Stone had not challenged the sufficiency of the
Waschers’ complaint. We agree with the court’s analysis in this regard.
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No. 2020AP1961
original construction. The court properly determined that WIS. STAT. § 893.43(1)
did not bar any breach of contract claim stemming from repair work that Carved
Stone performed after November 20, 2012. The court also properly concluded that
neither WIS. STAT. § 893.52(1) nor the economic loss doctrine barred the Waschers’
negligence claim arising from Carved Stone’s repair work.
By the Court.—Orders affirmed.
32