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COURT OF APPEALS DECISION DATED AND RELEASED August 22, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0533-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
LAURA J. SAVONEN and
STEVEN J. SAVONEN,
Plaintiffs-Appellants,
v.
RICHARD NOLOP d/b/a
NOLOP CONSTRUCTION,
Defendant-Respondent.
APPEAL from an order of
the circuit court for La Crosse County:
RAMONA A. GONZALEZ, Judge. Reversed
and cause remanded.
Before Eich, C.J.,
Dykman, P.J., and Vergeront, J.
PER
CURIAM. Laura and Steven Savonen appeal from an order
dismissing their tort claims against Richard Nolop. The issue is whether the trial court properly held on summary
judgment that the Savonens' claims were barred by the six-year statute of
limitations on torts. Section 893.52, Stats.
We conclude that a material fact dispute remains as to whether the
Savonens commenced this action within the statute of limitations. We therefore reverse and remand for further
proceedings.[1]
The Savonens live in a
house they purchased in 1984, which Nolop constructed in 1976. In October of 1986, the Savonens discovered
severe structural problems with the house that were allegedly linked to Nolop's
improper design and construction techniques.
They commenced this action against Nolop in September 1992.
Nolop moved for summary
judgment and introduced evidence that in 1982 the previous owners of the house,
the Beckers, consulted a contractor, Gregory Gerke, who inspected the
home. The inspector determined that
there was leakage near a door, that windows did not function and that there was
rotting around the deck, and he noted
various other exterior problems. He
advised the Beckers that he could provide further diagnosis only by removing
the exterior of the house to determine the source of the leakage. The trial court concluded from this evidence
that the Beckers knew or should have known of the serious structural damage to
the house no later than sometime in 1982.
After imputing the Beckers' knowledge to the Savonens, the trial court
dismissed the action as untimely.[2]
We decide motions for
summary judgment in the same manner as the trial court and without deference to
its decision. Schaller v. Marine
Nat'l Bank, 131 Wis.2d 389, 394, 388 N.W.2d 645, 648 (Ct. App.
1986). Summary judgment is not
appropriate if, as here, the material facts are disputed, or allow more than
one reasonable inference. Wagner
v. Dissing, 141 Wis.2d 931, 940, 416 N.W.2d 655, 658 (Ct. App.
1987).
It remains unresolved
whether the Beckers knew or should have known in 1982 that they had a cause of
action against Nolop. In Wisconsin, a
cause of action does not "accrue until the plaintiff discovers, or in the
exercise of reasonable diligence should have discovered, not only the fact of
injury but also that the injury was probably caused by the defendant's
conduct." Borello v. U.S.
Oil Co., 130 Wis.2d 397, 411, 388 N.W.2d 140, 146 (1986). At best, Gerke's affidavit shows that he
advised the Beckers of certain problems with their home. The evidence does not show that he conveyed
the extent of the damage or that he could attribute it to Nolop's design or
construction. Additionally, the
affidavit does not contain enough information to conclude that the Beckers
failed to exercise reasonable diligence when they did not accept his
recommendation to remove the exterior of the house for further
examinations. One can also reasonably
infer from the affidavit that the Beckers were not made aware that more serious
structural damage underlay the exterior problems Gerke observed. Further proceedings are therefore necessary
to determine whether Gerke's 1982 inspection bars the Savonens' action.
By the Court.—Order
reversed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.