Cohen v. Towne Realty, Inc.
| Decision Date | 25 February 1972 |
| Docket Number | No. 385,385 |
| Parties | Harry A. COHEN et al., Plaintiffs, v. TOWNE REALTY, INC., et al., Defendants and Third-Party Plaintiffs-Appellants, TANNENBAUM & ASSOCIATES, etc., Third-Party Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
Cook & Franke, Milwaukee, Francis R. Croak, and David J. Hase, Milwaukee, of counsel, for appellants.
Niebler & Niebler, Menomonee Falls, Chester J. Niebler, Menomonee Falls, of counsel, for respondent.
This appeal concerns the constitutionality of sec. 893.155, Stats., which bars actions for injuries resulting from constructional or design defects brought more than six years after such services are performed.
The plaintiffs in this action Harry and Florence Cohen, were injured in a fire in their apartment in the city of Milwaukee on March 23, 1969. The design for this apartment building had been approved by the Milwaukee building inspector on July 17, 1963, and construction was substantially completed before September 1, 1964.
On March 31, 1970, Mr. and Mrs. Cohen began this action in the circuit court for Milwaukee county against the owners and managers of the apartment building, Towne Realty, Inc., Nortow Corporation, Joseph J. Zilber, and S. Daniel Tishberg, and their insurance company, Royal Indemnity, appellants herein. The claimed damages resulting from the fire and the appellants filed an answer to this complaint on June 18, 1970. On February 2, 1971, appellants served a third-party complaint upon the architects who designed the building, Tannenbaum & Associates, respondent herein, asserting that Tannenbaum was negligent in the design and supervision
'893.155 Within 6 years. No action to
The architects moved to dismiss the third-party complaint, asserting that the action was barred by sec. 893.155, Stats.
That section provides as follows:
The circuit court, Hon. Elmer W. Roller presiding, granted the motion and dismissed the action against respondent. Appellants then moved for reconsideration, asserting that sec. 893.155, Stats., is unconstitutional. The circuit court upheld the validity of the statute and entered judgment dismissing the third-party complaint. The owners and managers of the property now appeal from the judgment dismissing their third-party complaint.
Appellants attack the constitutionality of sec. 893.155, Stats. They claim it is invalid because it denies an individual the right to pursue an action against a contractor or architect more than six years after the construction has been completed. Furthermore, appellants contend that the section is unconstitutional because it arbitrarily excludes owners and materialmen from its coverage. We do not reach these questions because appellants do not have standing to challenge the constitutionality of sec. 893.155.
The third-party complaint filed by appellants discloses that respondent not only designed the apartment building, but also was responsible for the supervision of its construction. The statute of limitation, therefore, began running at the time the...
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State ex rel. Ellenburg v. Gagnon
...of constitutional issues as they apply to other persons or other situations is guarded and limited. In Cohen v. Towne Realty, Inc., 54 Wis.2d 1, 4-5, 194 N.W.2d 298, 300 (1972), we quoted the United States Supreme Court as " '. . . This Court, as is the case with all federal courts, "has no......
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American Druggists' Ins. Co. v. American Standard, Inc.
...discretion in dismissing American Druggists' action against American Standard. We further conclude that under Cohen v. Towne Realty, Inc., 54 Wis.2d 1, 194 N.W.2d 298 (1972), American Druggists lacks standing to challenge the constitutionality of sec. 893.89, Stats. We therefore reverse the......
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State ex rel. Clarke v. Carballo
...of deciding it . . ." State ex rel. Ellenburg v. Gagnon, 76 Wis. 2d 532, 536, 251 N.W.2d 773, 775 (1977); Cohen v. Towne Realty, Inc., 54 Wis.2d 1, 4, 5, 194 N.W.2d 298 (1972). Before the constitutional sufficiency of the board's procedure is determined it must first be determined whether t......
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Waupoose v. Flad and Associates, Inc.
...had six years or until April 17, 1984, to bring his action within the time prescribed by sec. 893.89. See Cohen v. Town Realty, Inc., 54 Wis.2d 1, 4, 194 N.W.2d 298, 300. This is not a case where the statute acted to bar a claim prior to the injury. See Kallas Millwork Corp., 66 Wis.2d at 3......