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Midland Builders7/14/2005
tort-feasors pays more than his proper proportionate share (comparative negligence not being applied to contribution cases, Wedel v. Klein (1938), 229 Wis. 419, 282 N.W. 606) and brings suit for contribution against the other tort-feasor, he must plead and prove among the other necessary allegations his own negligence, the negligence of the other tort-feasors, and their common liability. This rule places the burden of proof on the one asserting contribution.
Id. at 518-19.
In sum, Midland has failed to allege a claim for contribution against Semco because Midland has not pled any theory under which Midland itself might be liable to the homeowners.
III. Midland's Breach-of-Warranty Claim
The circuit court determined that Midland's breach-of-warranty claim was time-barred. Midland stopped purchasing Semco windows sometime in 1996 and filed its lawsuit on November 11, 2002. Midland's arguments focus on the applicability of two statutes of limitation, WIS. STAT.§§ 402.725 and 893.89 (2003-04). For the reasons that follow, we determine that Midland's breach-of-warranty claim does not turn on any genuine issue of material fact and that the circuit court correctly concluded that the breach-of-warranty claim is time-barred.
The interpretation and application of a statute to undisputed facts are questions of law for our de novo review. Tannler v. DHSS,211 Wis. 2d 179, 183, 564 N.W.2d 735 (1997). Midland's arguments also require that we interpret Semco's written warranty. The interpretation of warranty language is also a question of law that we review de novo. Dieter v. Chrysler Corp., 2000 WI 45, , 234 Wis. 2d 670, 610 N.W.2d 832.
A. Wis. Stat. § 402.725
1. The Future Performance Exception
Midland's primary warranty argument, stated broadly, is that its breach-of-warranty claim is timely under the "future performance" exception set forth in WIS. STAT.§ 402.725. That statute provides:
(1) An action for breach of any contract for sale must be commenced within 6 years after the cause of action has accrued....
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.
Thus, the normal rule is that a breach-of-warranty action must be commenced within six years after "tender of delivery" of the product warranted. See Selzer, 257 Wis. 2d 809, . However, if the warranty "explicitly extends to future performance of the goods," the action accrues when the buyer discovered or should have discovered the breach. WIS. STAT.§ 402.725(2); see also Selzer, 257 Wis. 2d 809, .
Our decision in Selzer controls the resolution of Midland's future performance argument. The plaintiff in Selzer brought both an express and an implied warranty claim against a window manufacturer. Selzer, 257 Wis. 2d 809, , 3, 8. The window manufacturer sold its windows with a one-year warranty on its millwork. Id., . At the same time, however, the manufacturer advertised in its catalogue that "all exterior wood [on the windows] is deep-treated to permanentlyprotect against rot and decay." Id., , 23. Since no Wisconsin case had yet determined the scope of the future performance exception in WIS. STAT.§ 402.725, a Uniform Commercial Code provision, in Selzer we turned to Uniform Commercial Code case law from other jurisdictions. See Selzer, 25
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