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Midland Builders7/14/2005
he future performance exception in § 402.725(2). But Midland's argument is insufficiently developed to merit much of our attention.
Midland asserts that it is undisputed that it "has suffered damages in the amount of at least $53,585 for losses to homes constructed within the last six years." However, under WIS. STAT.§ 402.725, it does not matter when the homes were constructed. What matters under the statute is when "tender of delivery is made." WIS. STAT.§ 402.725(2). Midland argues that the triggering event under the statute was "completion of the sale" of the windows, which, according to Midland, need not coincide with the windows' delivery date. But Midland's arguments fail to demonstrate that the circuit court erred. Is Midland referring to the sale of the Semco windows to Midland or to UBC? When did these sales take place? How do we know whether there is a factual dispute as to when the relevant purchases were made?
Midland argues in its reply brief that Semco does not dispute Midland's assertion that it constructed the homes--homes that Midland later spent $53,585 repairing--within six years of the time Midland filed suit. This is true. But it is not apparent why Semco should bother. Even under Midland's theory, the time of construction is not the event triggering the statute of limitations. We conclude that Midland's argument is insufficient to show that summary judgment regarding this amount was in error.
B. The Ten-Year Limitation Period in WIS. STAT.§ 893.89
Midland argues that its breach-of-warranty claim falls within WIS. STAT.§ 893.89, which allows for a ten-year limitation period on certain actions for injury resulting from improvements to real property. The circuit court erred, Midland argues, in determining that § 893.89 does not apply.
WISCONSIN STAT.§ 893.89 reads, in part:
(1) In this section, "exposure period" means the 10 years immediately following the date of substantial completion of the improvement to real property.
(2) Except as provided in sub. (3), no cause of action may accrue and no action may be commenced, including an action for contribution or indemnity, 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. This subsection does not affect the rights of any person injured as the result of any defect in any material used in an improvement to real property to commence an action for damages against the manufacturer or producer of the material.
....
(4) This section does not apply to any of the following:
....
(b) A person who expressly warrants or guarantees the improvement to real property, for the period of that warranty or guarantee.
Midland, however, does not develop any argument dealing with what we view as a threshold procedural question: Why should the ten-year period of limitation in WIS. STAT.§ 893.89 apply to salvage a breach-of-warranty cause of action that is otherwise time-barred by WIS. STAT.§ 402.725? As we read Midland's arguments, Midland is not arguing that § 402.725 does not apply; rather, Midland is arguing that both statutes apply. Midland seems to assume that the longer of the two limitation periods necessarily controls if both statutes apply. The truth of this assumption is not appar
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