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Midland Builders7/14/2005
§ 402.725(2). Thus, according to Midland, it had ten years to discover the failure, and another six years after discovery to file suit.
Midland's argument is unpersuasive. Even apart from our statement in Selzer that implied warranties cannot, by their very nature, explicitly extend to future performance, Selzer, 257 Wis. 2d 809, , the warranty route Midland asks us to travel is far from clear. As we explained in Selzer, a future performance warranty must be clear, definite, precise, and unmistakable. See id., . It can hardly be said that the warranty statements Midland relies on, when read together, unambiguously provide an express "implied" warranty of merchantability for ten years' duration.
It is not apparent why we should look to the ten-year insulated glass warranty rather than the one-year millwork warranty. Again, the only explanation Midland offers is that it is ambiguous whether the language that the implied warranty "shall be limited in time to the duration of the express warranty" refers to the one-year or the ten-year express warranty. But ambiguity works against Midland in this context. Although an ambiguous warranty disclaimer or other ambiguous warranty language is normally construed against the drafter, see Dieter, 234 Wis. 2d 670, , a more specific rule applies here, namely, that ambiguity in warranty language should be interpreted against the existence of a future performance warranty. See Selzer, 257 Wis. 2d 809, .
Midland relies heavily on Richardson v. Clayton & Lambert Manufacturing Co., 634 F. Supp. 1480 (N.D. Miss. 1986). But Richardson is an unsatisfying read to say the least. The court in Richardson layers a similar "implied" warranty limitation on an express ten-year warranty. Id. at 1486-87. The Richardson court, like Midland, fails to explain adequately why warranty language like that here creates an implied warranty that explicitly extends to future performance. Other cases reach the opposite result from Richardson. See Stoltzner v. American Motors Jeep Corp., 469 N.E.2d 443, 444-45 (Ill. App. Ct. 1984); Nationwide Ins. Co. v. General Motors Corp., 625 A.2d 1172, 1178 (Pa. 1993).
Finally, Midland asserts that Selzer must be read with City of Stoughton v. Thomasson Lumber Co., 2004 WI App 6, 269 Wis. 2d 339, 675 N.W.2d 487 (Ct. App. 2003), a case which, according to Midland, holds that implied warranties can, and often do, extend to the future. We disagree with Midland's characterization of Thomasson. That case is of no assistance to Midland. In Thomasson, we reaffirmed our statement in Selzer that implied warranties cannot, by their very nature, explicitly extend to future performance. Thomasson, 269 Wis. 2d 339, . We simply recognized, as we had in Selzer, that "' hile all warranties in a general sense apply to the future performance of goods, the future performance exception ... applies only where the warranty "explicitly extends to future performance."'" Thomasson, 269 Wis. 2d 339, (quoting Selzer, 257 Wis. 2d 809, ).
Accordingly, we reject Midland's assertion that Semco's written warranty creates an implied warranty of merchantability that explicitly extends to future performance within the meaning of WIS. STAT.§ 402.725.
2. Midland's Claim for Damages Related to Homes Constructed Within the Six-Year Period Before Midland Filed Suit
Midland argues that it suffered $53,585 in losses related to homes constructed within the six-year period before Midland filed its complaint. Midland reasons that its claims relating to this amount should have survived summary judgment under the six-year statute of limitation found in WIS. STAT.§ 402.725, regardless of the applicability of t
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