LUNDSTEN, P.J.
¶ 1 Iconica, Inc., designed and built a water park resort and conference center for Kalahari Development, LLC. Years after the project was completed, Kalahari discovered moisture damage in the walls. Kalahari brought claims for breach of contract and professional negligence against Iconica, alleging that the damage was caused by a defectively designed and installed vapor barrier. Iconica moved for summary judgment and the circuit court granted the motion. The court concluded that the contract claim was time-barred by the six-year statute of limitations applicable to contract claims. In doing so, the court rejected Kalahari's argument that its contract claim was still viable under WIS. STAT. § 893.89,
¶ 2 On May 11, 1999, Kalahari and Iconica entered into a design-build contract for the design and construction of "Kalahari Resort & Conference Center," which was to include an indoor water park, hotel units and lobby, and a restaurant. The final contract price was approximately $26,200,000. In connection with the construction project, the contract also stated that Iconica would provide certain services, including architectural, engineering, and other construction services. The project was substantially complete as of May 4, 2000.
¶ 3 Beginning in May 2008, Kalahari noticed surface stains on the water park building's wall and, subsequently, discovered moisture damage to the walls. On April 23, 2010, almost ten years after the project was substantially complete, Kalahari filed suit against Iconica and its insurer, Lexington Insurance Company. Kalahari alleged that Iconica "defectively designed and/or defectively installed the vapor barriers in the walls ... causing the
¶ 4 The circuit court dismissed both claims on summary judgment. Kalahari appeals.
¶ 5 The propriety of the circuit court's decision to dismiss Kalahari's contract claim turns on the proper interpretation of WIS. STAT. § 893.89. The applicable principles of statutory construction were aptly summarized in State v. Carey, 2004 WI App 83, 272 Wis.2d 697, 679 N.W.2d 910:
Id., ¶ 8 (citations omitted).
¶ 6 Generally speaking, WIS. STAT. § 893.89 provides that persons involved in improvements to real property may not be sued more than ten years after substantial completion of a project.
¶ 7 The structure of, and some of the wording in, WIS. STAT. § 893.89 make it difficult to follow. Accordingly, clarity will be served if we first provide our interpretation of the statute, focusing on its application to contract actions against persons involved in real property improvements, and then address Kalahari's arguments disputing our interpretation.
¶ 8 We begin with the heart of WIS. STAT. § 893.89, its ten-year limitation period. Section 893.89(2) provides that "no cause of action ... may be commenced ... against any person involved in the improvement to real property after the end of the exposure period." This is a ten-year time limit because "exposure period" is defined as "the 10 years immediately following the date of substantial completion of the improvement to real property." WIS. STAT. § 893.89(1).
¶ 9 If the reader stopped with WIS. STAT. § 893.89(1) and (2), he or she might conclude that this ten-year limit has broad application and, for example, effectively gives a building owner ten years after substantial completion of his or her building to discover a problem and bring suit against a builder or designer. But the next subsection, § 893.89(3), directs that, if a cause of action is time-barred by a statute of limitations before it would be barred under § 893.89, then that statute of limitations applies. Subsection (3)(a) provides, in part:
Thus, subsection (3)(a) tells litigants and courts to determine whether the damages sought are based on a cause of action that is controlled by a statute of limitations and, if so, determine whether that statute acts to bar the claim prior to the time it would be barred by § 893.89.
¶ 11 In sum, when an action is one for contract damages, WIS. STAT. § 893.89(3)(a) directs that its ten-year time limit be compared with the time limit applicable to contract actions to see which is shorter, and that the shorter limit applies. The result is that Kalahari's contract claim is time-barred by the statute of limitations on contract actions. In the following two subsections, we address and reject Kalahari's arguments to the contrary.
¶ 12 Kalahari's first argument focuses on the word "damages" in WIS. STAT. § 893.89(3)(a). The disputed language reads:
WIS. STAT. § 893.89(3)(a). Kalahari acknowledges that this language directs that some statutes of limitations apply to impose a shorter time limit. Kalahari argues, however, that WIS. STAT. § 893.43 is not the type of statute of limitations referenced in subsection (3)(a). Kalahari contends that § 893.43 is directed at causes of action, in contrast to other statutes of limitations, covered by subsection (3)(a), directed at damages. The distinction Kalahari makes does not help it here. Even if some causes of action are excluded from subsection (3)(a) because they do not seek "damages," here Kalahari is seeking damages.
¶ 13 Kalahari's complaint seeks monetary damages for breach of contract. The damages sought include "without limitation, the cost to inspect and repair the
¶ 14 We acknowledge that the wording Kalahari relies on might make a difference in some situations. Kalahari contrasts statutes like WIS. STAT. § 893.43, that place a time limit on specified actions without respect to the remedy sought, with statutes that place a time limit on defined actions to recover "damages." Kalahari points to WIS. STAT. § 893.52 as an example of a statute directed at damages. That statute places a time limit on bringing non-contract actions "to recover damages."
¶ 15 Kalahari next argues that, regardless whether its contract claim would otherwise be time-barred by WIS. STAT. § 893.89(3)(a)'s directive to look for applicable statutes of limitations, a different part of subsection (3)(a) we have yet to discuss nonetheless makes § 893.89's ten-year time limit applicable. Kalahari relies on the introductory clause to subsection (3)(a) that states "[e]xcept as provided in pars. (b) and (c)." Kalahari asserts that its situation fits under subsection (3)(b) and, therefore, its claim is an exception to subsection (3)(a).
¶ 16 We first explain the purpose and function of subsection (3)(b). We then explain why Kalahari's proposed interpretation of subsection (3)(a)'s "exception" language leads to absurd results and must be rejected.
¶ 17 In drafting subsection (3)(b), the legislature clearly intended to give a plaintiff a fair opportunity to discover and file a suit—not otherwise time-barred—when the damage suffered occurs within ten years of substantial completion of a project. The legislature anticipated that, if damage occurs toward the end of the ten-year period, there might not be sufficient time to identify the damage, investigate its cause, and take the steps necessary to file a lawsuit. The mechanism giving plaintiffs additional time is subsection (3)(b). Under this subsection, if the damage occurs within three years of the expiration of the ten-year period, the time for filing suit is extended for three years after the date the damage occurred.
¶ 18 Again, Kalahari's argument is that subsection (3)(a)'s directive—to look to see whether there is a shorter time limit elsewhere in the statutes—does not apply because of subsection (3)(a)'s introductory language: "Except as provided in pars. (b) and (c)." Kalahari contends that, because its damage occurred after year 7, and because the timing of that damage falls within the three-year window described in "(b)," Kalahari's situation is an exception contemplated by the introductory language. Kalahari does not, however, go on
¶ 19 As applied to the facts before us, subsection (3)(b) is not, in any logical sense, an exception to subsection (3)(a). Subsection (3)(a) makes clear that § 893.89's ten-year time limit is not intended to override shorter applicable statutes of limitations, such as the shorter six-year statute of limitations on contract actions plainly applicable here. Since Kalahari's action was time-barred after six years, it makes no sense to say that the subsection (3)(b) exception, extending the ten-year time limit, applies because the damage occurred after year 7.
¶ 20 More generally, treating subsection (3)(b) as an exception to subsection (3)(a) leads to the absurd result that many lawsuits based on damage that occurs earlier in time would be barred, whereas otherwise identical lawsuits based on damage that occurs later in time would not be barred. A simple example exposes this absurdity. Suppose a roofing contractor working under a contract installs a defective roof. Suppose later the roof fails and the homeowner sues for damages alleging breach of contract. The statute of limitations on contract actions would bar that claim six years after the breach/installation and, as we have explained, § 893.89(3)(a) tells us to apply that six-year time limit. If we were to accept Kalahari's view of how subsections (3)(a) and (3)(b) interact, the homeowner's ability to sue would skip year 7, but be revived in years 8, 9, or 10. That is, if the homeowner is lucky enough to sustain the damage in years 8, 9, or 10, he could sue. But if he sustained damage in year 7, he could not. This is the result of Kalahari's interpretation because, under Kalahari's interpretation of subsection (3)(a)'s "exception" language, subsection (3)(b) applies only when damage occurs at the start of year 8 or later—it does not apply when damage occurs during year 7. This is nonsense.
¶ 21 Our rejection of Kalahari's interpretation is consistent with the rule that we are to presume that "`the legislature intends for a statute to be interpreted in a manner that advances the purposes of the statute'" and "we will reject a literal reading of a statute that would lead to an absurd or unreasonable result that does not reflect the legislature's intent." See Carey, 272 Wis.2d 697, ¶ 8, 679 N.W.2d 910 (citation omitted). Returning to the purpose of § 893.89, "to provide protection from long-term liability for those involved in the improvement to real property," Kohn, 283 Wis.2d 1, ¶ 62, 698 N.W.2d 794, we are unable to reconcile this purpose with Kalahari's proffered interpretation and, therefore, reject it.
¶ 22 We recognize that our analysis might render the "[e]xcept as provided in pars. (b) and (c)" language in subsection (3)(a) meaningless. However, whether there are situations in which it makes sense to treat subsections (3)(b) or (3)(c) as an exception to subsection (3)(a) is a question we leave for another day.
¶ 23 Kalahari acknowledges that, when a contract covers both products and services, the economic loss doctrine bars negligence claims if the predominant purpose of the contract is to provide a product. As the supreme court explained in Linden v. Cascade Stone Co., 2005 WI 113, 283 Wis.2d 606, 699 N.W.2d 189, courts "use the predominant purpose test to determine whether a mixed contract for products and services is predominantly a sale of a product and therefore subject to
¶ 24 Kalahari argues, however, that the circuit court erroneously granted summary judgment here because, at a minimum, there are material factual disputes bearing on whether the "predominant purpose" of the contract was to provide a product or to provide a service. In the alternative, Kalahari argues that the predominant purpose test is inapplicable to negligence claims based on professional services and, therefore, the economic loss doctrine does not bar its negligence claim. We reject Kalahari's arguments because they are contrary to binding precedent.
¶ 25 Whether a contract is for goods or services is a question of law that we review de novo. 1325 N. Van Buren, LLC v. T-3 Group, Ltd., 2006 WI 94, ¶ 42, 293 Wis.2d 410, 716 N.W.2d 822. When a contract is for a mixture of products and services, we apply the predominant purpose test, which is a totality of the circumstances test. See id. (listing various factors); see also id., ¶ 42 n. 11.
¶ 26 The contract in this case contained three components that are key for purposes of resolving Kalahari's predominant purpose argument. The three components are Iconica's promise to provide (1) architectural and engineering services, (2) other services necessary for construction, including supervision and labor, and (3) construction materials. As we explain below, two supreme court cases addressing substantially similar situations have concluded that the contracts in those cases were predominantly for a product. Because Kalahari fails to persuasively distinguish those cases, we conclude that we are bound to follow their result here.
¶ 27 In Linden, 283 Wis.2d 606, 699 N.W.2d 189, the supreme court applied the predominant purpose test to a contract for the construction of a custom-built house that provided both for services in conjunction with constructing the house and for the materials. See id., ¶¶ 23-25 (stating that the services included "`[p]rovide excavation,' `drain tile installed,' and `spray mastic waterproofing applied'"). The court concluded that the predominant purpose was "for a product, a new house." Id., ¶ 25.
¶ 28 In 1325 North Van Buren, 293 Wis.2d 410, 716 N.W.2d 822, the supreme court applied the predominant purpose test to a contract for "renovating an existing industrial warehouse into a 42-unit condominium building with attached parking garages." Id., ¶¶ 2, 42-50. The court summarized the contract at issue as follows: "In addition to providing the necessary materials for renovation and construction, [the contractor] was to provide construction management services, meaning it had to hire, coordinate, and supervise the numerous subcontractors, and generally manage the project to ensure the renovation was completed on time and within budget." Id., ¶ 7. The court concluded that the contract was predominantly for a product, "a condominium complex." Id., ¶ 50.
¶ 29 Thus, our supreme court has addressed construction contracts involving both construction services and materials, and has concluded that those contracts were predominantly for a product, namely, the final structure. Kalahari nonetheless argues that a unique aspect of the contract here distinguishes it from the contracts in these cases. Specifically, Kalahari argues that this case is different because Iconica provided architectural and engineering services, which are types of services not
¶ 30 Assuming without deciding that there is some meaningful distinction between the types of services generally involved in supervising construction projects and the "architectural and engineering services" involved here, the latter services were a small fraction of the cost of the entire project. Kalahari acknowledges that, out of approximately $7.1 million allocated for the water park, only $240,000 was for "architectural and engineering services." Overall, the record reveals that approximately $1,091,000 was allocated to architectural and engineering services out of an approximately $26,200,000 final contract price. This equates to about 4% of the contract price. That means that 96% of the contract is not distinguishable from the contracts in Linden and 1325 North Van Buren.
¶ 31 The question then is whether we should treat this construction contract differently than the construction contracts in Linden and 1325 North Van Buren because a small portion is attributable to a particular type of service. As we explain in the subsection below, our supreme court has declined to treat some types of services differently for purposes of applying the economic loss doctrine. Apart from the proposition that its architectural and engineering services should be treated differently, Kalahari provides, and we discern, no reason why such a small component of the contract, as measured by price, should matter.
¶ 32 Accordingly, we conclude that, just as the owner in Linden primarily contracted for a house, and the owner in 1325 North Van Buren primarily contracted for a condominium complex, Kalahari primarily contracted for a water park resort and convention center.
¶ 33 We conclude this part of our discussion with two related observations. First, we acknowledge that a predominant purpose test analysis normally involves the application of that multi-factor test to particular facts. We do not engage in this exercise here because it would be a pointless endeavor. Given Kalahari's failure to present a persuasive reason why the result here should be different than the results in Linden and 1325 North Van Buren, it necessarily means that an analysis of the individual factors would produce the same result.
¶ 34 Second, we need not dwell on Kalahari's contention that Iconica failed to make a prima facie factual showing supporting summary judgment. Kalahari appears to argue that Iconica's submissions do not provide enough detail regarding the cost of materials compared with the cost of services. But, here again, Kalahari presents no reason why such facts would matter in light of Linden and 1325 North Van Buren. For example, Kalahari does not suggest that more facts might show the differential in material costs and service costs in this case is so great that this contract is different in kind than the contracts in those supreme court cases. Notably, the Linden court acknowledged that it was "impossible to separate the cost of the materials from the cost of the services," but nonetheless concluded on summary judgment that the contract was for a product. See Linden, 283 Wis.2d 606, ¶¶ 23-25, 32, 699 N.W.2d 189.
¶ 35 Relying on Insurance Co. of North America v. Cease Electric Inc., 2004 WI 139, 276 Wis.2d 361, 688 N.W.2d 462, Kalahari asserts that tort actions that include an allegation of professional negligence are categorically exempted from the economic loss doctrine, regardless of the predominant
¶ 36 Cease Electric explains that, when determining whether the economic loss doctrine should bar a claim, a court must first determine if a contract is for a product or a service. See id., ¶ 14. The case further teaches that, if the contract is for a service (either professional or nonprofessional), then the economic loss doctrine's bar will not apply to a tort claim. See id., ¶¶ 48-53 (declining to distinguish between professional and nonprofessional services). The court stated that it was adopting a "bright line rule" that "the economic loss doctrine does not apply to contracts for services." Id., ¶¶ 52-53. And, we know from subsequent supreme court cases that where, as here, a contract is for a mixture of products and services, we apply the predominant purpose test to determine if a contract is for products or services. See Linden, 283 Wis.2d 606, ¶ 8, 699 N.W.2d 189. If it is predominantly a contract for a service, then we apply the rule from Cease Electric that the economic loss doctrine does not bar a tort claim. See Linden, 283 Wis.2d 606, ¶ 8, 699 N.W.2d 189. Nothing in Cease Electric, properly read, stands for the proposition that courts should treat some categories of services differently for purposes of the economic loss doctrine.
¶ 37 Kalahari also relies on our statement in Shister v. Patel, 2009 WI App 163, 322 Wis.2d 222, 776 N.W.2d 632, that "[t]he supreme court [in Cease Electric] has specifically stated that the [economic loss] doctrine should not apply to causes of action in tort for professional malpractice." Id., ¶ 13. This wording places an unfortunate emphasis on "professional," but it was not meant to suggest that the economic loss doctrine never applies when alleged negligence involves professional negligence. Rather, in Shister, we were referencing a situation in which it had already been determined that a contract was for services and, as Cease Electric teaches, this meant that the economic loss doctrine did not bar the tort claim. The pertinent discussion in Shister did not turn on the nature of the services.
¶ 38 The remainder of Kalahari's arguments are directed at policy reasons for why, under the economic loss doctrine and the predominant purpose test, professional services should be treated differently than nonprofessional services. However, we are bound by the Cease Electric court's decision to reject such a distinction.
¶ 39 For the reasons discussed, we affirm the circuit court.
Order affirmed.