Castellani v. Bailey

• Decision Date: 22 May 1998
• Docket Number: No. 95-2733,95-2733
• Citation: 218 Wis.2d 245,578 N.W.2d 166
• Parties: Thomas N. TOMCZAK and Mary Ann Tomczak by John Louis Castellani, Trustee of the bankrupt estate, Plaintiff-Respondent, v. Pete L. BAILEY and American Surveying Company, Inc., Defendants-Appellants-Petitioners, Randolph L. Rafalski and Interline Surveying Services, Inc., Defendants, Mildred B. WOHLFARD, Defendant-Third Party Plaintiff, v. EQUITABLE/STEFANIAK REALTY, Third Party Defendant.
• Court: Wisconsin Supreme Court

Page 166

578 N.W.2d 166

218 Wis.2d 245

Thomas N. TOMCZAK and Mary Ann Tomczak by John Louis

Castellani, Trustee of the bankrupt estate, Plaintiff-Respondent, v. Pete L. BAILEY and American Surveying Company, Inc.,

Defendants-Appellants-Petitioners, Randolph L. Rafalski and Interline Surveying Services, Inc., Defendants, Mildred B. WOHLFARD, Defendant-Third Party Plaintiff, v. EQUITABLE/STEFANIAK REALTY, Third Party Defendant.

No. 95-2733.

Supreme Court of Wisconsin.

Argued Oct. 7, 1997.

Decided May 22, 1998.

For the defendants-appellants-petitioners there were briefs by Stephen L. Fox and Schmidt & Rupke, S.C., Milwaukee and oral argument by Stephen L. Fox.

For the plaintiff-respondent there was a brief by Robert H. Bichler, Brenda J. Stugelmeyer and Hostak, Henzl & Bichler, S.C., Racine and oral argument by Robert H. Bichler.

Amicus curiae was filed by John A. Kassner and Wendel & Center, Madison for the Wisconsin Builders Association.

¶1 JON P. WILCOX, Justice

This is a review of a published decision of the court of appeals, Tomczak v. Bailey, 206 Wis.2d 405, 557 N.W.2d 840 (Ct.App.1996), which affirmed an order of the Circuit Court for Racine County, Dennis J. Flynn, Judge. The circuit court denied the summary judgment motion of the defendants, Pete L. Bailey (Bailey) and American Surveying Company (American), seeking dismissal because the plaintiffs, Thomas N. Tomczak and Mary Ann Tomczak (the Tomczaks), brought their action after the six-year limitation period set forth in Wis. Stat. § 893.37 (1993-94) ¹ had expired. The circuit court held that the "discovery rule," as adopted by this court in Hansen v. A.H. Robins, Inc., 113 Wis.2d 550, 560, 335 N.W.2d 578 (1983), applied to the Tomczaks' cause of action so as to render it timely.

¶2 There are three issues before us on review: (1) whether the Hansen discovery rule applies to the time limitation for commencement of an action against a land surveyor under Wis. Stat. § 893.37; (2) whether § 893.37 violates the equal protection clauses of the United States and Wisconsin constitutions; and (3) whether placement of surveyor's stakes in the ground constitutes a continuing tort, such that the six-year limitation period may be tolled following completion of a survey. ² We hold that the Hansen discovery rule does not apply to the time limitation for commencement of an action under § 893.37, that § 893.37 satisfies the equal protection commands of the state and federal constitutions, and that the limitation period was not tolled following completion of the survey. Accordingly, we reverse the decision of the court of appeals.

¶3 The relevant facts are not in dispute. On August 25, 1988, Bailey, a land surveyor employed by American, surveyed and staked the boundaries of lots 96 and 97, located in the unrecorded plat of the Elm Island subdivision in Waterford, Wisconsin. The surveyor's certificate indicated that the survey was "made for the present owners of the property, and also those who purchase ... within one (1) year" from the date of the survey.

¶4 Around that time, the Tomczaks negotiated with the defendant Mildred B. Wohlfard and her real estate agent for the purchase of the two lots. During these negotiations, the Tomczaks became aware of the survey markers placed on the property by Bailey, and were provided with a copy of Bailey's survey. On October 21, 1988, the Tomczaks purchased the lots.

¶5 In 1989, the Tomczaks began making improvements to the property. In doing so, their builder hired a different survey company, Inman Survey and Associates, Inc. (now defendant Interline Surveying Services, Inc.), to confirm the boundaries of the property. This surveyor relied on the stakes placed by Bailey in confirming that the boundaries of lots 96 and 97 existed as marked. The builder then completed construction of a home and deck on the property consistent with the Bailey and Inman/Interline surveys.

¶6 In June 1994, Charles and Kim Andersen (the Andersens) purchased the land adjacent to the Tomczaks' property. In conjunction with this purchase, the Andersens had their property surveyed to confirm its boundaries. Their survey indicated that the Tomczaks' house, deck, patio and pier extended onto the Andersens' property. According to this new survey, the boundaries of lots 96 and 97 as marked by Bailey were actually the boundaries of lots 97 and 98 of the unrecorded plat of Elm Island.

¶7 As a result, the Andersens commenced an action for trespass and encroachment against the Tomczaks. On May 24, 1995, the Tomczaks in turn instituted this negligence action against Bailey and American seeking attorney's fees and other damages incurred in defending the Andersens' lawsuit. Bailey and American moved for summary judgment arguing that the Tomczaks' claim was time barred under Wis. Stat. § 893.37. The Tomczaks opposed the motion by invoking the discovery rule of Hansen. That is, the Tomczaks asserted that the six-year limitation period did not begin to run at least until they became aware of their encroachment on the Andersens' property in June 1994.

¶8 The circuit court denied Bailey and American's motion for summary judgment, holding that the discovery rule applied to the time limitation set forth in Wis. Stat. § 893.37. The court of appeals agreed, stating: "Because the language of § 893.37, Stats., contains no rule of discovery, we conclude that it falls under the Hansen discovery rule." Tomczak, 206 Wis.2d at 416, 557 N.W.2d 840. The court of appeals therefore affirmed the circuit court's non-final order denying Bailey and American's motion for summary judgment, and remanded the cause for further proceedings. Bailey and American appeal from the decision of the court of appeals.

I.

¶9 We first consider whether the Hansen discovery rule applies to the limitation period governing lawsuits against surveyors. The application of a statute to a particular set of facts is a question of law which this court reviews without deference to the conclusions of the circuit court or the court of appeals. See State v. Ahrling, 191 Wis.2d 398, 403, 528 N.W.2d 431 (1995). Therefore, we review the court of appeals' decision de novo.

¶10 Wisconsin Stat. § 893.37 is a statute of repose. It provides 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. In this case, the statute bars suit against a surveyor brought more than six years after the survey was completed.

¶11 Wisconsin Stat. § 893.37 is not a statute of limitations, which bars an action not commenced within a specified amount of time after the cause of action "accrues." Nevertheless, the Tomczaks ask this court to apply the Hansen discovery rule to § 893.37, so that its six-year limitation period began to run, at the earliest, in June 1994 when the Tomczaks became aware of their encroachment on the Andersens' property. Not only does such reasoning run contrary to the plain language of § 893.37, but it also misreads our decision in Hansen. ³

¶12 In Hansen, we were faced with a certified question of law from the United States Court of Appeals for the Seventh Circuit. The following question was certified for our determination: "When does the cause of action accrue within the meaning of the Wisconsin statute of limitations for personal injury actions ... when the injury to the plaintiff was caused by a disease which may have been contracted as a result of protracted exposure to a foreign substance?" 113 Wis.2d at 551-52, 335 N.W.2d 578 (emphasis added). The case involved a woman (Hansen) who was allegedly injured by use of a Dalkon Shield intrauterine device. Hansen first discovered abnormal medical symptoms approximately four years after the device had been inserted into her uterus by medical personnel, and later discovered that she had pelvic inflammatory disease. The disease left her fallopian tubes blocked, rendering her sterile. See id. at 552-53, 335 N.W.2d 578.

¶13 The applicable statute of limitations for Hansen's lawsuit provided that an action to recover damages for injuries sustained must be brought within three years "after the cause of action has accrued." Id. at 554, 335 N.W.2d 578. See Wis. Stat. §§ 893.14, 893.205(1) (1977). Thus, we were left to decide when the cause of action accrued for the purposes of Hansen's action because the legislature had not spoken on the issue. See Hansen, 113 Wis.2d at 556-57, 559-60, 335 N.W.2d 578. Acknowledging the "harsh results" that often stem from using the date of injury as the benchmark for accrual of claims, we stated:

In the interest of justice and fundamental fairness, we adopt the discovery rule for all tort actions other than those already governed by a legislatively created discovery rule. Such tort claims shall accrue on the date the injury is discovered or with reasonable diligence should be discovered, whichever occurs first. All cases holding that tort claims accrue at the time of the negligent act or injury are hereby overruled.

Id. at 556, 560, 335 N.W.2d 578.

¶14 Of principal importance to our decision in Hansen was the legislature's silence on the issue of when such a cause of action would accrue. In the present situation, the legislature has explicitly barred suits against surveyors that are not brought within six years from the date that the survey was completed. In effect, the legislature has already determined when the claim "accrues": the date the survey is completed, not the date that the injury is discovered.

¶15 We are unwilling to change the legislature's decision on time limitation periods such as that provided by the surveyor's statute. "[W]isconsin courts have traditionally held that statutes of limitation are policy considerations within the province of the legislature." Miller v. Kretz, 191 Wis.2d 573, 580, 531 N.W.2d 93 (Ct.App.1995) (citation omitted). In short,...