Denzer v. Rouse, 132

• Decision Date: 06 November 1970
• Docket Number: No. 132,132
• Parties: Merlin L. DENZER et al., Appellants, v. Ruth T. ROUSE, Exrx. of the Estate of John H. Rouse, Respondent.
• Court: Wisconsin Supreme Court

Page 521

180 N.W.2d 521

48 Wis.2d 528

Merlin L. DENZER et al., Appellants, v. Ruth T. ROUSE, Exrx. of the Estate of John H. Rouse, Respondent.

No. 132.

Supreme Court of Wisconsin.

Nov. 6, 1970.

This appeal arises out of a 1947 real estate transaction between the appellants. Two of the appellants (the Straits) were the grantors, while the other two appellants (the Denzers) were the grantees. John H. Rouse, an attorney now deceased, was retained to assist in consummating the sale, which was of a piece of land carved out of a larger tract owned by the Straits. It became necessary for the attorney to prepare a legal description of the property conveyed and prepare a warranty deed. This was done and the sale was consummated in 1947.

In 1949 the balance of the larger tract was sold to one Ganser who in turn sold it to one Grosshans. In the meantime the Denzers sold their parcel to one Rudolph who in turn sold it to one Rueping. In 1966 Grosshans commenced an ejectment action against Rueping claiming encroachment upon the Grosshans property. Rueping impleaded the appellants (and Rudolph), cross-complaining for breach of warranty of title. Presented conflicting interpretations as to the exact property described in and conveyed by the 1947 warranty deed, this court held Grosshans entitled to ejectment. (See Grosshans v. Rueping (1967), 36 Wis.2d 519, 153 N.W.2d 619.) Subsequently and consequently, the appellants instituted this action against respondent, seeking indemnification from the estate of the attorney for expenses and any damages that might be awarded to Rueping on his cross-complaint. The respondent demurred, pleading the statute of limitations. The trial court sustained the demurrer. From that order this appeal is taken.

Bruce Gillman, Arthur, Tomlinson & Gillman, S.C., Madison, for appellants.

Jenswold, Studt, Hanson, Clark & Kaufmann, Madison, for respondent.

ROBERT W. HANSEN, Justice.

When did the statute of limitations begin to run as to the claimed negligence of the attorney who drafted the warranty deed involved in a 1947 real estate transaction?

STATUTES INVOLVED.

The Wisconsin statutes here involved, in pertinent part, provide:

'893.14 * * * The following actions must be commenced within the periods respectively hereinafter prescribed after the cause of action has accrued * * *. (Emphasis supplied.)

'893.19 Within 6 years; * * *

'(5) An action to recover damages for an injury to property, or for an injury to the character or rights of another, not arising on contract, except in case where a different period is expressly prescribed.

'(7) An action for relief on the ground of fraud. The cause of action in such case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud.'

ACTION ON CONTRACT.

It is conceded that, if this cause of action against the estate of a deceased attorney were based on contract, it would be barred by the statute of limitations, the statute in such case '* * * commences to run from the time of the breach, whether the facts are known to the party having the right or not. * * *' ¹ However, in this state in action for malpractice may sound in tort as well as contract, '* * * (t)he very same conduct gives plaintiff his option as to remedies. * * *' ² So the issue raised here is as to a claim sounding in tort.

MEDICAL MALPRACTICE CASES.

In sustaining the demurrer and holding that the statute began running at the time the real estate deal was consummated (1947), the trial court relied upon McCluskey v. Thranow, ³ wherein this court reaffirmed the rule that, in a case involving a claim of alleged medical malpractice, the period of limitations commenced at the time of alleged negligent act and resultant injury. In that case this court followed an interpretation earlier given the statute involved. ⁴

THERE POINTS IN TIME.

In a more recent case involving a products liability claim, this court pointed out that, in the medical malpractice cases, McCluskey included, which have come to this court on appeal, '* * * three points in time were involved: the time of the negligent act, the time of injury, and the time of discovery. * * *' ⁵ In Holifield, this court pointed out that, in the medical malpractice cases, '* * * The date of negligence and the date of injury were the same date. * * * Where both were simultaneous, it was holding that the statute of limitations runs from that date, the time at which the cause of action must be concluded to have accrued.' ⁶

Where then are these three 'points in time' in the case before us? The time of the asserted negligence clearly is back in 1947 when the description of the property involved in the real estate deal was prepared by the attorney. The actual time of discovery, appellant asserts, came when its contention that the description in the deed was properly drawn so as to include the property involved in the ejection action was rejected by this court. ⁷ However, as to the time of injury, we would hold that the date was the date of consummation of the real estate transaction, back in 1947. It was on this date that the purchaser-appellant paid for and received the property described in the deed prepared by the attorney. Since '* * * a person has a 'cause of action' when he can come into court, plead and prove certain facts and secure the relief requested,' ⁸ his cause of action was then complete, except that he did not know that it then existed. The only missing ingredient was actual knowledge that a mistake in describing the property had been made. The date of gaining such knowledge is the date of discovery. As this court has said, '* * * That the injury did not become noticeable or was not in fact noticed until a later date is another question. * * *' ⁹ Tolling of the statute of limitations in this state does not await the time or fact of discovery. When negligence and resultant injury have occurred, the statute starts to run. So we concur with the trial court finding that the statute of limitations in this case commenced to run back in 1947, at the time of the consummation of the real estate transaction, when negligence, if such there was, and injury alike occurred. It follows that the present action is barred by the statute of...