James Eddings v. The Estate of Donna M. Young

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 18, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP614 Cir. Ct. No. 2022CV668

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

JAMES EDDINGS, KENDA BULGRIN, FORREST BULGRIN EDDINGS,
A MINOR AND EVERETT BULGRIN EDDINGS, A MINOR,

PLAINTIFFS,

CARPENTER & JOINERS WELFARE FUND AND WISCONSIN DEPARTMENT
OF HEALTH SERVICES,

INVOLUNTARY-PLAINTIFFS,

V.

THE ESTATE OF DONNA M. YOUNG,

DEFENDANT-THIRD-PARTY PLAINTIFF-APPELLANT,

V.

SHARON TOMLINSON AND SHOREWEST REALTORS, INC.,

THIRD-PARTY DEFENDANTS-RESPONDENTS,

DEF INSURANCE COMPANY,

THIRD-PARTY DEFENDANT.
No. 2023AP614

APPEAL from an order of the circuit court for Walworth County:
KRISTINE E. DRETTWAN, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Lazar, JJ.

¶1 GUNDRUM, P.J. The Estate of Donna M. Young appeals from an
order of the circuit court. It contends the court erred in concluding that the two-
year statute of repose in WIS. STAT. § 452.142 (2021-22)1 bars its third-party
indemnification or, alternatively, contribution action against realtor Sharon
Tomlinson and the firm she worked for, Shorewest Realtors, Inc., (collectively,
Tomlinson) related to Tomlinson’s role in the sale of Donna Young’s home to
James Eddings and Kenda Bulgrin. For the following reasons, we conclude the
circuit court did not err, and we affirm.

Background

¶2 According to the complaint, when Donna Young suffered a stroke
and became incapacitated, she was placed outside of her home, and her children
enlisted Tomlinson to help sell the home. Young executed a power of attorney
making her adult daughter, Cynthia Simonsen, her attorney-in-fact.

¶3 Tomlinson provided Simonsen with a real estate condition report for
Simonsen to sign on Young’s behalf. Simonsen, who had not lived at Young’s
home for decades, completed and signed the report, indicating she was not aware
of any defects in the property. Tomlinson drafted an offer to purchase the

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP614

property on behalf of Eddings and Bulgrin and subsequently prepared a
counteroffer that Simonsen executed. In January 2020, Eddings and Bulgrin
closed on the property. Young passed away on October 11, 2021.

¶4 On June 21, 2022, Eddings, Bulgrin, and their two minor children
(collectively, homebuyers) filed a complaint against Young’s estate, alleging they
sustained damages, including personal injury due to mold exposure, as a result of
misrepresentations made by or on behalf of the Estate. In September 2022—
approximately two years and eight months after the closing on Young’s home—
the Estate filed a third-party complaint against Tomlinson, asserting that any
damages sustained by the homebuyers were solely caused by Tomlinson’s
negligent acts and omissions. The Estate sought equitable indemnification by
Tomlinson or, alternatively, contribution from her.

¶5 Tomlinson moved to dismiss the Estate’s third-party complaint on
the basis that it is barred by the two-year statute of repose in WIS. STAT.
§ 452.142. The Estate opposed the motion, asserting, as it also does on appeal,
that § 452.142 cannot properly be interpreted as barring its
indemnification/contribution claims. The circuit court agreed with Tomlinson and
granted the motion, concluding the language of § 452.142 is “clear and
unambiguous” and bars the Estate’s third-party action. The Estate appeals.

Discussion

¶6 The Estate acknowledges WIS. STAT. § 452.142 is a two-year statute
of repose but insists it does not bar the indemnification/contribution claims in its
third-party complaint because interpreting the statute in such a manner abrogates
common law, which the statute cannot do without clear language indicating the
legislature intended such abrogation. Tomlinson counters that the plain language

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No. 2023AP614

of the statute is clear and unambiguous and bars the Estate’s third-party action.
We agree with Tomlinson.

Statutes of Repose

¶7 Our supreme court has explained:

A statute of repose … limits the time period within which
an action may be brought based on the date of an act or
omission. A statute of repose does not relate to the accrual
of a cause of action. In fact, it may cut off litigation before
a cause of action arises.

Hamilton v. Hamilton, 2003 WI 50, ¶29, 261 Wis. 2d 458, 661 N.W.2d 832
(citation omitted). Black’s Law Dictionary similarly defines a statute of repose as

barring any suit that is brought after a specified time since
the defendant acted … even if this period ends before the
plaintiff has suffered a resulting injury.

A statute of repose … limits the time within
which an action may be brought and is not related
to the accrual of any cause of action; the injury
need not have occurred, much less have been
discovered. Unlike an ordinary statute of
limitations which begins running upon accrual of
the claim, the period contained in a statute of
repose begins when a specific event occurs,
regardless of whether a cause of action has
accrued or whether any injury has resulted.

Statute of Repose, BLACK’S LAW DICTIONARY (10th ed. 2014) (citation omitted).
And the United States Supreme Court has likewise explained:

A statute of repose … puts an outer limit on the right to
bring a civil action. That limit is measured not from the
date on which the claim accrues but instead from the date
of the last culpable act or omission of the defendant.… The
repose provision is therefore equivalent to “a cutoff,” in
essence an “absolute ... bar” on a defendant’s temporal
liability.

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No. 2023AP614

… Statutes of repose effect a legislative judgment that a
defendant should “be free from liability after the
legislatively determined period of time.” Like a discharge
in bankruptcy, a statute of repose can be said to provide a
fresh start or freedom from liability.…

… Statutes of repose … generally may not be tolled,
even in cases of extraordinary circumstances beyond a
plaintiff’s control….

… [A] statute of repose is a judgment that defendants
should “be free from liability after the legislatively
determined period of time, beyond which the liability will
no longer exist and will not be tolled for any reason.”…

.…

A statute of repose … mandates that there shall be no
cause of action beyond a certain point, even if no cause of
action has yet accrued. Thus, a statute of repose can
prohibit a cause of action from coming into existence….

… A statute of repose … may preclude an alleged
tortfeasor’s liability before a plaintiff is entitled to sue,
before an actionable harm ever occurs.

… “[A] repose period is fixed and its expiration will not
be delayed by estoppel or tolling.”

CTS Corp. v. Waldburger, 573 U.S. 1, 8-17 (2014) (citations omitted).

¶8 Thus, a statute of repose is a legislative determination that a
defendant who otherwise might be held legally accountable for his or her conduct
will not be so held as the defendant is “free from liability after the legislatively
determined period of time,” id. at 9 (citation omitted), despite any perceived
inequity with this result. Once the statutorily designated time period has expired,
“liability will no longer exist” even if the period of repose runs “before a plaintiff
is entitled to sue, before an actionable harm ever occurs.” Id. at 10, 17 (citation
omitted).

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No. 2023AP614

WISCONSIN STAT. § 452.142

¶9 This appeal requires us to determine if the circuit court erred in
concluding that WIS. STAT. § 452.142 bars the Estate’s third-party action against
Tomlinson. To make this determination, we must engage in statutory
interpretation, which is a matter of law we review de novo. Century Fence Co. v.
American Sewer Servs., Inc., 2021 WI App 75, ¶8, 399 Wis. 2d 742, 967 N.W.2d
32.

¶10 WISCONSIN STAT. § 452.142 (emphasis added) provides:

(1) Notwithstanding [WIS. STAT. §§] 100.18(11)(b)3.,
893.43, 893.52, or 893.57, an action concerning any act or
omission of a firm or any licensee associated with the firm
relating to brokerage services shall be commenced within
2 years after whichever of the following that applies occurs
first:

(a) A transaction is completed or closed.

(b) An agency agreement is terminated.

(c) An unconsummated transaction is terminated or
expires.

(2) The period of limitation under this section may not
be reduced by agreement.

(3) The period of limitation under this section does not
apply to disciplinary actions initiated by the [real estate
examining] board.

¶11 In its third-party complaint, the Estate alleged various wrongful acts
by Tomlinson that “dr[ew]” the Estate into the litigation filed by Eddings and
Bulgrin, “exposing the Estate to a potential award of damages and causing the
Estate to incur attorney fees and litigation costs.” The Estate “demand[ed]
judgment” for “full indemnification against Tomlinson and Shorewest” or “[i]n the
alternative, for a judgment for contribution” against them. Tomlinson moved to

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No. 2023AP614

dismiss the Estate’s action because it had been filed more than two years after the
closing on Young’s home and is thus barred by the WIS. STAT. § 452.142 statute
of repose. The circuit court granted Tomlinson’s motion because “the clear
language of [§] 452.142 is that the Wisconsin legislature intended that real estate
professionals be free from all liability for acts and omissions while providing
brokerage services two years after the closing.” We agree it is that simple.

¶12 The Estate does not dispute that it filed its third-party complaint
against Tomlinson more than two years after the January 2020 closing on Young’s
home. Nor does it dispute that the complaint constitutes “an action concerning
an[] act or omission of a firm or any licensee associated with the firm relating to
brokerage services” under WIS. STAT. § 452.142.2 Indeed, the Estate’s complaint
fits this language exactly. Instead, the Estate contends that despite the plain
language of § 452.142, the statute cannot bar its third-party action against
Tomlinson because the specific claims alleged—indemnification or, alternatively,
contribution—are common law claims, applying the statute to bar such claims
would be an abrogation of the common law and a statute may not abrogate the
common law absent “clear, unambiguous and peremptory language[] expressing
the legislature’s intent ‘beyond any reasonable doubt,’” and the statute does not
contain such language. The Estate does not persuade.

2
The legislature and our courts both appear to recognize that indemnification and
contribution claims constitute “an action.” See, e.g., WIS. STAT. § 893.89; see also, e.g., Fleming
v. Threshermen’s Mut. Ins. Co., 131 Wis. 2d 123, 131, 388 N.W.2d 908 (1986); Union Pac.
R.R. Co. v. Motive Equip., Inc., 2006 WI App 58, ¶4, 291 Wis. 2d 236, 714 N.W.2d 232; Brown
v. LaChance, 165 Wis. 2d 52, 63, 477 N.W.2d 296 (Ct. App. 1991); City of Menomonie v.
Evensen Dodge, Inc., 163 Wis. 2d 226, 231-32, 471 N.W.2d 513 (Ct. App. 1991).

7
No. 2023AP614

¶13 The Estate emphasizes that “contribution and indemnity are common
law rights based upon principles of equity.” It asserts that the circuit court’s
decision barring the Estate’s claims “in essence … abrogates Wisconsin common
law. The [circuit] court has barred the Estate from bringing common law claims
that have not yet accrued.” The Estate relies heavily upon language from our
supreme court’s decision in Fuchsgruber v. Custom Accessories, Inc., 2001
WI 81, ¶25, 244 Wis. 2d 758, 628 N.W.2d 833 (emphasis added; citations
omitted):

It is axiomatic that a statute does not abrogate a rule of
common law unless the abrogation is clearly expressed and
leaves no doubt of the legislature’s intent. Statutes in
derogation of the common law are strictly construed. A
statute does not change the common law unless the
legislative purpose to do so is clearly expressed in the
language of the statute. To accomplish a change in the
common law, the language of the statute must be clear,
unambiguous, and peremptory.

Latching onto this language, the Estate insists WIS. STAT. § 452.142 “does not
contain any such clear, unambiguous and peremptory language, expressing the
legislature’s intent ‘beyond any reasonable doubt,’ to include claims for
contribution or indemnification within its two-year statute of repose.”

¶14 The Estate also directs us to our supreme court’s decision in
Kranzush v. Badger State Mut. Cas. Co., 103 Wis. 2d 56, 307 N.W.2d 256
(1981). In Kranzush, the injured petitioner, relying on numerous statutory and
administrative provisions the petitioner claimed “were intended to broaden
coverage and facilitate recovery for injured claimants,” sought to hold the
tortfeasor’s insurer liable for bad faith failure to settle a claim with the petitioner.
Id. at 57, 66. Our supreme court concluded that no such cause of action existed
under common law, noting it could find no Wisconsin case law recognizing “a

8
No. 2023AP614

legal basis upon which a third-party claimant may recover from the tortfeasor’s
insurer for failure to settle a claim.” Id. at 82. The court observed that the
petitioner thus was attempting to “change” the common law by creating a right of
action that did not exist. Id. at 74. The court noted “the need for a clear
expression of intent to create a private right of action, especially where that right
would be in clear derogation of the common law.” Id. at 81.

¶15 The Estate further directs us to McLeod v. Mudlaff, 2013 WI 76,
350 Wis. 2d 182, 833 N.W.2d 735. The question in McLeod was whether the
legislature had intended to “eliminate” the common law remedy allowing a court
to declare a marriage “void” after one party of the marriage had passed away. The
court recognized the difference between a statutory provision allowing for
annulment of a marriage while both parties were still alive and the common law
remedy allowing a court to declare a marriage “void” even after one party had
passed away. The court stated, “If the legislature had wanted to eliminate this
common law remedy, then it would have done so in clear, unambiguous
language.” Id., ¶77 (emphasis added).

¶16 More than a decade after Fuchsgruber, in a case not cited by either
party, our supreme court put the above-quoted language from Fuchsgruber into
clearer perspective. In MBS-Certified Pub. Accts., LLC v. Wisconsin Bell, Inc.,
2012 WI 15, ¶59, 338 Wis. 2d 647, 809 N.W.2d 857, the defendants asserted, as
the court phrased it, that “[i]f the legislature intended to make the [common law]
voluntary payment doctrine inapplicable to claims under WIS. STAT. § 100.207 …
it was required to make explicit reference to the doctrine in the text of that
statute.” [Emphasis added.] The defendants further asserted “that the absence of
such a reference forecloses MBS’s argument that th[is] common law defense is

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No. 2023AP614

inapplicable because it is inconsistent with the purposes of the statute.” MBS-
Certified, 338 Wis. 2d 647, ¶59.

¶17 The MBS-Certified court rejected the defendants’ assertions, noting
that “‘abrogate’ means ‘[t]o annul, cancel, revoke, repeal, or destroy,’” id., ¶70
n.23 (quoting State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998) (citing
abrogate, BLACK’S LAW DICTIONARY (6th ed. 1990))), but that MBS-Certified
“makes no suggestion that by enacting WIS. STAT. § 100.207, the legislature
intended to fully abrogate the common law [voluntary payment] doctrine. Rather,
the argument is only that the legislature did not intend the doctrine to be a viable
defense to an action under … § 100.207,” MBS-Certified, 338 Wis. 2d 647, ¶70.

¶18 Similarly, in the case now before us, Tomlinson does not argue that
by enacting WIS. STAT. § 452.142, the legislature intended to “fully abrogate,”
“change,” or “eliminate” the common law causes of action of indemnification and
contribution. Instead, she argues the legislature did not intend those causes of
action to be excepted from § 452.142’s clear prohibition on any actions, other than
certain disciplinary actions, against a firm or its licensee after two years from a
completed transaction. Stated otherwise, she contends the legislature did not
intend these common law bases of liability to usurp the repose intended by
§ 452.142 for real estate firms and licensees such as Tomlinson.

¶19 The clear intent of WIS. STAT. § 452.142 is to limit the liability of
realtors and their firms after the passage of two years from the completed
transaction. Allowing third-party claims like those of the Estate would
significantly undermine that legislative purpose. See MBS-Certified, 338 Wis. 2d
647, ¶54. As the circuit court noted, to allow the Estate’s third-party claims
against Tomlinson would effectively be an “end run” around the repose the

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No. 2023AP614

legislature clearly intended, and “[a] court’s interpretation of a statute should not
‘contravene a textually or contextually manifest statutory purpose.’” See id., ¶58
(quoting State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 271 Wis. 2d 633, ¶49,
681 N.W.2d 110).

¶20 In this case, if Tomlinson were arguing that WIS. STAT. § 452.142
indicates the legislature’s intent to do away with the common law claims of
indemnification and contribution, we would agree the holdings of Fuchsgruber,
Kranzush, and McLeod would control—i.e., to fully abrogate or change the
common law, a statute must do so clearly, unambiguously, peremptorily and
beyond reasonable doubt. But that is not what Tomlinson is arguing, nor what we
are holding. She poses no challenge to the long-standing common law claims of
indemnification and contribution; rather, similar to the situation before our
supreme court in MBS-Certified, she is merely asserting, and we are holding, that
the plain statutory language of § 452.142 does not except those claims.

¶21 Directing us to WIS. STAT. §§ 893.37 and 893.89(2), the Estate
contends it is the legislature’s “historical practice” to specifically reference a bar
on contribution and indemnification claims in statutes of repose when it wants to
bar such claims. Section 893.37 (emphasis added) provides:

Survey. No action may be brought against an engineer or
any professional land surveyor … to recover damages for
negligence, errors, or omission in the making of any survey
nor for contribution or indemnity related to such
negligence, errors, or omissions more than 6 years after the
completion of a survey.

Section 893.89, “Action for injury resulting from improvements to real property,”
states in relevant part:

(2) …[N]o cause of action may accrue and no action
may be commenced, including an action for contribution

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No. 2023AP614

or indemnity, against the owner or occupier of the property
or against any person involved in the improvement to real
property after the end of the exposure period….

(Emphasis added.)3 From these statutes, the Estate asserts we should conclude
that because the legislature did not include in WIS. STAT. § 452.142 similar
language specifically referencing contribution and indemnification, it must not
have intended to bar such claims. Again, we are not persuaded.

¶22 The legislature’s decision to take a “belt-and-suspenders” approach
in these unrelated statutes from a different chapter by including specific
indemnification and contribution language in WIS. STAT. §§ 893.37 and 893.89(2)
does not mean the belt-alone approach of WIS. STAT. § 452.142 does not
accomplish the same end. Moreover, as Tomlinson points out, we would only
look to these other statutes for guidance on the interpretation of § 452.142 if
§ 452.142 itself is ambiguous.4 As we stated in Waukesha County v. Johnson,
3
Tomlinson counters the Estate by directing us to other statutes of repose, ones that, like
WIS. STAT. § 452.142, do not specifically mention indemnification or contribution—WIS. STAT.
§§ 893.895, 440.977, 893.55, 895.047(5), and 893.555—claiming they nonetheless “bar all
actions after the date of repose.” The Estate responds that because no published cases interpret
these provisions to confirm the effect of their language, these statutes do not support Tomlinson’s
argument because it is unknown whether they in fact would be determined by a court to bar
indemnification and/or contribution claims. We think the more noteworthy observation related to
these statutes of repose, as well as WIS. STAT. §§ 893.37 and 893.89(2), is that they all use unique
language to accomplish their purpose—we see no model statutory repose language the legislature
has consistently used. Nonetheless, as indicated, because § 452.142 is not ambiguous, see infra
¶22, we also do not look to Tomlinson’s cited statutes to determine the meaning of § 452.142.
4
The Estate directs us to legislative history, which it claims is supportive of its position.
As the Estate acknowledges, however, we would only delve into legislative history “[i]n the event
[we] conclude[] that WIS. STAT. § 452.142 is ambiguous.” Because we conclude that the plain
language of the statute is clear and unambiguous, we do not consider legislative history. See
State v. R.A.M., 2024 WI 26, ¶16, 412 Wis. 2d 285, 8 N.W.3d 349 (“[W]hen the meaning of a
statute is plain, we do not consult legislative history to ascertain its meaning.”). That said, we
note that the legislative history the Estate relies upon—undated, handwritten notes made by an
unidentified person, which notes may or may not have ever been considered by any member of
the legislature—is particularly unmoving. See State v. Kizer, 2021 WI App 46, ¶23 n.7, 398
Wis. 2d 697, 963 N.W.2d 136.

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No. 2023AP614

107 Wis. 2d 155, 162, 320 N.W.2d 1 (Ct. App. 1982), “[w]here … language of a
statute is clear and unambiguous, we must give the statute the effect its language
warrants.” We continued:

It is well-established that a statute in derogation of the
common law must be strictly construed so as to have
minimal effect on the common law rule. The canons of
construction provide that a statute does not abrogate or
change any principle or rule of common law unless it is so
clearly expressed as to leave no doubt of the legislature’s
intent. However, for this rule of statutory construction to
apply, three requirements must be met:

(1) there must be a common law doctrine in
existence, or potentially in existence, relevant to the
issue presented by the parties; (2) the statute in
issue must be one which, construed as the party
pleading it contended, would operate to change the
common law; and (3) the statute must be ambiguous
on its face.

Id. at 162-63 (emphases added; footnotes omitted). The “abrogate or change”
canon of construction did not apply in Johnson because

[a]lthough it is clear that there is a common law doctrine
relevant to the issue at hand and that the statute is in
derogation of that common law rule, it is also clear that the
statute is unambiguous on its face. Consequently, we are
precluded from interpreting the legislature’s meaning
through rules of statutory construction.

Id. at 163 (footnote omitted). The same holds in this case; we do not apply the
“abrogate or change” canon of construction the Estate largely hangs its hat on
because § 452.142 is “unambiguous on its face” in precluding any action, other
than a disciplinary action, filed after two years from a closing on a property,

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No. 2023AP614

including the Estate’s third-party action for indemnification/contribution.5 See
Johnson, 107 Wis. 2d at 162-163.

¶23 We find our supreme court’s decision in Tomczak v. Bailey, 218
Wis. 2d 245, 578 N.W.2d 166 (1998), instructive for several reasons. The
Tomczaks purchased lots whose boundaries had been surveyed and staked by land
surveyor Bailey. Id. at 250. Relying on these boundaries, the Tomczaks
constructed a house and deck in conformity with Bailey’s survey. Id. Several
years later, a couple purchased property adjacent to the Tomczaks’ property and
learned through their own survey that the Tomczaks’ house and deck were
partially on their property. Id. at 250-51. The couple sued the Tomczaks for
trespass and encroachment. Id. at 251. The Tomczaks in turn sued Bailey for
negligence related to his survey, requesting attorney’s fees and additional damages
they incurred as a result of the couple’s suit. Id. Bailey moved for summary
judgment on the basis that the Tomczaks’ action was barred by the six-year
limitation period for “negligence, errors or omission” lawsuits against land
surveyors in WIS. STAT. § 893.37. Id. at 248 & n.1. Opposing the motion, the
Tomczaks contended, as the Tomczak court phrased it, that the limitation period

5
Tomlinson points out that within WIS. STAT. § 452.142 itself, the legislature showed it
knew how to except an action from the otherwise all-encompassing language, pointing out that
the legislature included subsec. (3), which excepts specific disciplinary actions by stating, “The
period of limitation under this section does not apply to disciplinary actions initiated by the [real
estate examining] board.” Thus, a “disciplinary action[] initiated by the board” is the only type of
action excepted from the bar of § 452.142. Just as eagerly as it encourages us to look beyond the
plain language of § 452.142, the Estate also encourages us to ignore the above § 452.142
exception for disciplinary actions, asserting we should not apply the canon of expressio unius est
exclusio alterius—“the expression of one thing excludes another.” We need not, and do not, rely
upon this canon of construction either; we rely upon the facts alleged in the complaint falling
squarely within the repose bar of the plain language of § 452.142. We do note, however, that
within § 452.142, the legislature demonstrated its ability and willingness to carve out one
particular type of “action” that the two-year bar does not apply to, yet chose not to carve out any
other type of action—for contribution, indemnification, or otherwise.

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“did not begin to run at least until they became aware of their encroachment on the
[couple’s] property.” Id. at 251.

¶24 Both the circuit court and court of appeals rejected Bailey’s
summary judgment motion, concluding the common law discovery rule articulated
in Hansen v. A.H. Robins, Inc., 113 Wis. 2d 550, 335 N.W.2d 578 (1983),
applied to the WIS. STAT. § 893.37 time limitation. We stated: “Because the
language of § 893.37 … contains no rule of discovery, we conclude that it falls
under the Hansen discovery rule.” Tomczak v. Bailey, 206 Wis. 2d 405, 416, 557
N.W.2d 840 (Ct. App. 1996). On further appeal, our supreme court disagreed.

¶25 The supreme court noted that the WIS. STAT. § 893.37 statute of
repose “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.”
Tomczak, 218 Wis. 2d at 252. The court stated that § 893.37 was “not a statute of
limitations, which bars an action not commenced within a specified amount of
time after the cause of action ‘accrues,’” and concluded that application of the
Hansen discovery rule to § 893.37 would “run contrary to the plain language” of
the statute. Tomczak, 218 Wis. 2d at 252. The court explained that “[i]n effect,
the legislature has already determined when the claim ‘accrues’: the date the
survey is completed, not the date that the injury is discovered,” adding “[w]e are
unwilling to change the legislature’s decision on time limitation periods such as
that provided by the surveyor’s statute” and “the decision to close the courthouse
doors on litigants with stale claims is a pure question of policy that is better left to
the legislative branch of government.” Id. at 254.

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¶26 As the Tomczak court stated it, the Tomczaks had argued:

[T]hat the legislature has not “grappled” with the inequities
inherent with a limitation period that commences before the
injury is discovered. According to the Tomczaks, justice
dictates that a time limitation period not begin to run on tort
claims without discovery, unless the legislature has clearly
illustrated, either through legislative history or by the
language of the statute itself, that it has weighed the
unfairness that such a result would produce against other
policy considerations.

Id. at 254-55. The Tomczak court was unmoved, concluding that “in adopting
WIS. STAT. § 893.37, the legislature did consider the inequity of a time limitation
period that commences prior to discovery, and yet determined that claims against
surveyors will be barred six years after the survey has been completed, regardless
of when the injury is discovered.” Tomczak, 218 Wis. 2d at 255. While the Estate
here tries to play down the significance of Tomczak by stating that the Tomczak
court “considered the legislative history of … § 893.37,” the court made clear it
was not relying on legislative history because “the plain language of § 893.37 is
sufficient to support our conclusion.” Tomczak, 218 Wis. 2d at 255. The court
held that “the judicially-created [common law] Hansen discovery rule cannot be
applied to a statute of repose.” Tomczak, 218 Wis. 2d at 260.

¶27 Similarly, in this case, the legislature has determined that a claim
against a realtor and/or his or her firm effectively “accrues,” as relevant here, at
the closing on the property sale. This accrual date for a statute of repose is “a pure
question of policy that is better left to the legislative branch of government.”

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Id. at 254.6 The repose the legislature clearly intended with WIS. STAT. § 452.142
is not usurped by common law indemnification or contribution claims.

6
The Estate also raises constitutional issues, in at best a half-hearted effort. Although its
positions on these issues are not entirely clear, it appears to challenge WIS. STAT. § 452.142 on
the basis that if it is interpreted and applied as the circuit court has done—so as to bar its third-
party complaint raising indemnification or, alternatively, contribution claims—the provision
violates article I, sections 9 and 1 of the Wisconsin Constitution and the Equal Protection and
Due Process Clauses of the United States Constitution. At the same time, it also asserts, in its
reply brief, that it “is not challenging the constitutionality of … § 452.142 facially or as applied.”
(Emphasis added.) No matter. At the end of the day, we reject the Estate’s constitutional
contentions because they are all insufficiently developed.

Our supreme court has stated:

None of these constitutional arguments is presented in depth.
They are referenced in a few paragraphs and are conclusory in
nature. The arguments do little more than allege that the
construction of the statute violates the provisions at issue. We
need not address arguments presented in this fashion. As our
court of appeals has explained:

Constitutional claims are very complicated from
an analytic perspective, both to brief and to
decide. A one or two paragraph statement that
raises the specter of such claims is insufficient to
constitute a valid appeal of these constitutional
issues to this court. For us to address
undeveloped constitutional claims, we would
have to analyze them, develop them, and then
decide them. We cannot serve as both advocate
and court. For this reason, we generally choose
not to decide issues that are not adequately
developed by the parties in their briefs.

Similarly, we cannot allow parties to simply raise the specter of a
constitutional violation through insufficiently developed
arguments in order to garner an interpretation of a statute in their
favor.

Wisconsin Conf. Bd. of Trs. of United Methodist Church, Inc. v. Culver, 2001 WI 55, ¶38, 243
Wis. 2d 394, 627 N.W.2d 469 (citations omitted). The Culver principles fully apply here. The
Estate advances its equal protection argument in two paragraphs/seven sentences and its due
process argument in one paragraph/six sentences. As for the Estate’s Article I, Section 9
challenge, while it is comprised of five paragraphs/sixteen sentences, it is no less conclusory and
no better developed.

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No. 2023AP614

By the Court.—Order affirmed.

Recommended for publication in the official reports.

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No. 2023AP614

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