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Kohn v. Darlington Community Schools7/1/2005
Fund, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849. Accordingly, on February 15, 2003, the circuit court entered an order granting ITW's motion for summary judgment and dismissing all claims against ITW with prejudice.
The court of appeals in an unpublished per curiam opinion reversed. The court of appeals concluded that the bleachers did not constitute an improvement to real property because there was no evidence that the bleachers were anchored to the ground. Kohn, unpublished slip op., . The court of appeals explained: "The degree of physical annexation shown by the pictures [in the record] convinces us that the bleachers are not an improvement to real property." Id. Thus, the court of appeals held that the Kohns' claims were governed by the three-year statute of limitation in Wis. Stat. § 893.54, rather than the ten-year period of repose in § 893.89.
III. ISSUES
Three issues are presented to this court. First, do the bleachers in question constitute an "improvement to real property" for purposes of § 893.89? Second, if so, does § 893.89 violate the "right to remedy" provision in Article I, Section 9 of the Wisconsin Constitution? Third, if the bleachers are an improvement to real property, does § 893.89 violate the equal protection clauses of the federal and state constitutions? We hold that the bleachers in question do constitute an improvement to real property for purposes of § 893.89. Further, we hold that § 893.89 does not violate Article I, Section 9 of the Wisconsin Constitution. Finally, we hold that § 893.89 does not violate the guarantee of equal protection in the federal and state constitutions.
IV. STANDARD OF REVIEW
This case comes to us on a motion for summary judgment.
This court reviews a circuit court's decision granting summary judgment independently, but we apply the same methodology as the circuit court. Smaxwell v. Bayard, 2004 WI 101, , 274 Wis. 2d 278, 682 N.W.2d 923. Pursuant to Wis. Stat. § 802.08(2), summary judgment "shall be rendered if 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." Therefore, " ummary judgment should not be granted, 'unless the facts presented conclusively show that the plaintiff's action has no merit and cannot be maintained.'" Smaxwell, 274 Wis. 2d 278, (quoting Goelz v. City of Milwaukee, 10 Wis. 2d 491, 495, 103 N.W.2d 551 (1960)). In determining whether summary judgment was appropriately granted, " e view the summary judgment materials in the light most favorable to the nonmoving party." Id.
Mayberry v. Volkswagen of Am., 2005 WI 13, , 278 Wis. 2d 39, 692 N.W.2d 226. Further, " hen the facts are undisputed, the interpretation and application of a statute to these facts present a question of law appropriate for summary judgment." Progressive N. Ins. Co. v. Romanshek, 2005 WI 67, , ___Wis. 2d ___, 697 N.W.2d 417.
Whether an item is an "improvement to real property" under § 893.89 is a question of law that we review de novo. Kallas Millwork Corp. v. Square D Co., 66 Wis. 2d 382, 386, 225 N.W.2d 454 (1975) [hereinafter "Kallas"]. Likewise, whether a statute is unconstitutional is a question of law subject to de novo review. Funk v. Wollin Silo & Equip., Inc., 148 Wis. 2d 59, 61, 435 N.W.2d 244 (1989).
V. ANALYSIS
A. Improvement to Real Property
Section 893.89 is a statute of repose that sets forth the time period during which an action for injury resulting from improvements to real property must be bro
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