Opinion
No. 2015AP197.
2015-08-25
Walter H. WISE and Walter R.J. Wise, Plaintiffs–Appellants, v. VILLAGE OF KIMBERLY and Cities & Villages Mutual Insurance Co., Defendants–Respondents.
Wis. Stat. § 893.89(2). The “exposure period” is “the 10 years immediately following the date of substantial completion of the improvement to real property.” Wis. Stat. § 893.89(1). The purpose of the statute “is to provide protection from long-term liability for those involved in the improvement to real property.” Kohn v. Darlington Cmty. Sch., 2005 WI 99, ¶ 62, 283 Wis.2d 1, 698 N.W.2d 794. Statutes of repose, unlike statutes of limitation, “provide [ ] that a cause of action must be commenced within a specified amount of time after the defendant's action which allegedly led to injury, regardless of whether the plaintiff has discovered the injury or wrongdoing.” Tomczak v. Bailey, 218 Wis.2d 245, 252, 578 N.W.2d 166 (1998). The legislature enacts a statute of repose to cut off “a right of action regardless of the time of accrual” because it has expressly decided “not to recognize rights after the conclusion of the repose period.” Kohn, 283 Wis.2d 1, ¶ 38 (punctuation and quoted sources omitted). The Wises argue that the fraud, owner/occupier, and damages exceptions outlined in subsecs. (a), (c) and (d), respectively, apply to their action. However, only subsec. (d)-the damages exception-was addressed by the circuit court. Because arguments regarding the fraud and owner/occupier exceptions were not raised in the circuit court, we deem them forfeited. See State v. Van Camp, 213 Wis.2d 131, 144, 569 N.W.2d 577 (1997) (arguments raised for first time on appeal generally deemed forfeited). Regardless, we conclude there is nothing in the record to support the application of either exception were we to address these arguments on their merits.