Contracts — statute of limitations — builder’s statute of repose

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Wisconsin Court of Appeals

Civil

Contracts — statute of limitations — builder’s statute of repose

An action for breach of contract based on an improvement to real property must be brought within six years, notwithstanding the ten-year builder’s statute of repose.

“Kalahari sought contract damages resulting from an ‘improvement to real property.’ Therefore, at a minimum, Kalahari was required to bring its contract action within WIS. STAT. § 893.89’s ten-year time limit. But as § 893.89(3)(a) instructs, we look to see whether the contract damages sought are time-barred by a statute of limitations before they would be barred under § 893.89. That search quickly leads to the statute of limitations applicable to actions for contract damages, WIS. STAT. § 893.43.1[5] It is undisputed that, under this six-year statute of limitations, Kalahari’s contract claim would be barred because the alleged breach occurred no later than May 2000, and this action was commenced in April 2010. See CLL Assocs. Ltd. P’ship v. Arrowhead Pac. Corp., 174 Wis. 2d 604, 607, 497 N.W.2d 115 (1993) (‘under sec. 893.43, a contract cause of action accrues at the moment the contract is breached’).”

“In sum, when an action is one for contract damages, WIS. STAT. § 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. The result is that Kalahari’s contract claim is time-barred by the statute of limitations on contract actions.”

Affirmed.

Recommended for publication in the official reports.

2011AP643 Kalahari Development, LLC, v. Iconica, Inc.

Dist. IV, Sauk County, Taggart, J., Lundsten, J.

Attorneys: For Appellant: Turke, Mary C., Madison; Kastens, Aaron H., Milwaukee; Albridge, Kenneth M., III, Madison; For Respondent: Thomsen, Scott J., Milwaukee; Heugel, John C., Green Bay