893.33 Note
(5) This draft makes explicit that only those who purchase for valuable consideration after the period of limitation has run or their successors may avail themselves of the benefits of this statute. There is no requirement that the purchaser be without notice, which is to be contrasted with s. 706.09 of the statutes where periods far shorter than 30 years are specified in many subsections. [Bill 326-A]
893.33 Annotation
“Transaction or event" as applied to adverse possession means adverse possession for the time period necessary to obtain title. Upon expiration of this period, the limitation period begins running. Leimert v. McCann,
79 Wis. 2d 289,
255 N.W.2d 526 (1977).
893.33 Annotation
A public entity landowner was not protected from a claim that was older than 30 years. State Historical Society v. Maple Bluff,
112 Wis. 2d 246,
332 N.W.2d 792 (1983).
893.33 Annotation
Hunting and fishing rights are an easement under sub. (6). There is no distinction between a profit and an easement. Figliuzzi v. Carcajou Shooting Club,
184 Wis. 2d 572,
516 N.W.2d 410 (1994).
893.33 Annotation
If a nuisance is continuing, a nuisance claim is not barred by the statute of limitations; but if it is permanent, it must be brought within the applicable statute period. A nuisance is continuing if it is ongoing or repeated but can be abated. A permanent nuisance is one act that causes permanent injury. Sunnyside Feed Co., Inc. v. City of Portage,
222 Wis. 2d 461,
588 N.W.2d 278 (Ct. App. 1998),
98-0709.
893.33 Annotation
The owner-in-possession exception found in sub. (5) does not apply to holders of a prescriptive easement because such holders are not owners. Once the right to a prescriptive easement has accrued by virtue of compliance with s. 893.28 (1) for the requisite 20-year period, the holder of the prescriptive easement must comply with the recording requirements within 30 years under sub. (2) or lose the right to continued use. Schauer v. Baker,
2004 WI App 41,
270 Wis. 2d 714,
678 N.W.2d 258,
02-1674.
893.33 Annotation
More specific statutes, govern a municipality's interest in an unrecorded highway and therefore the 30-year recording requirement under this section does not apply to a municipality's interest in an unrecorded highway. City of Prescott v. Holmgren,
2006 WI App 172,
295 Wis. 2d 627,
721 N.W.2d 153,
05-2673.
893.33 Annotation
An easement continuously recorded since 1936 for which no efforts were made to establish and use it until the 1990's was not abandoned. Spencer v. Kosir,
2007 WI App 135,
06-1691.
893.33 Annotation
The label of the documents here — “access easement agreement" — and the fact that each was signed by both parties did not transform the grants of easement into contracts subject to contract law. The plaintiffs alleged that a driveway could not be built on the easements described in the agreements because of a wetland delineation and sought a modification of the easements. This claim for relief was an action to enforce the recorded easements, albeit a modified version, and was therefore governed by s. 893.33 (6), not the contract statute, s. 893.43.
893.33 Annotation
An owner-in-possession exception to the statute of limitations applies to owners by adverse possession. The party who initially adversely possessed land for the necessary period of time is not required to continue to “adversely" possess the disputed property to benefit from the exception. At the end of the applicable adverse possession period, title vests in the adverse possessor and the record owner's title is extinguished. Engel v. Parker,
2012 WI App 18,
339 Wis. 2d 208,
810 N.W.2d 861,
11-0025.
893.33 Annotation
This section provides no exception to the limitations period under sub. (6) for enforcement of an easement against a purchaser who had actual notice of the easement. TJ Auto LLC v. Mr. Twist Holdings LLC,
2014 WI App 81,
355 Wis. 2d 517,
851 N.W.2d 831,
13-2119.
893.33 Annotation
A survey map filed in the office of register of deeds was not a “recording" that renews the limitations period under sub. (6). To record an instrument, s. 59.43 (1) (e) and (f) require the register of deeds to endorse upon it a certificate of the date and time when it was received as well as a number consecutive to the number assigned to the immediately previously recorded or filed instrument. Without those marks of recording by the register of deeds, there is no basis from which a court can presume that the survey map was recorded. TJ Auto LLC v. Mr. Twist Holdings LLC,
2014 WI App 81,
355 Wis. 2d 517,
851 N.W.2d 831,
13-2119.
893.34
893.34
Immunity for property owners. No suit may be brought against any property owner who, in good faith, terminates a tenancy as the result of receiving a notice from a law enforcement agency under
s. 704.17 (1) (c),
(2) (c) or
(3) (b).
893.34 History
History: 1993 a. 139.
893.35
893.35
Action to recover personal property. An action to recover personal property shall be commenced within 6 years after the cause of action accrues or be barred. The cause of action accrues at the time the wrongful taking or conversion occurs, or the wrongful detention begins. An action for damage for wrongful taking, conversion or detention of personal property shall be commenced within the time limited by
s. 893.51.
893.35 History
History: 1979 c. 323.
893.35 Note
Judicial Council Committee's Note, 1979: This section is based on previous s. 893.19 (6), without change in substance, but with some expansion of language to make clear that accrual of the cause of action is not delayed until the person bringing the action learns of the wrongful taking or detention. The limitation with respect to an action for damages is contained in s. 893.51. [Bill 326-A]
893.36
893.36
Secured livestock. 893.36(1g)(d)
(d) “Market agency" means a person regularly engaged in the business of receiving, buying or selling livestock whether on a commission basis or otherwise.
893.36(1m)
(1m) An action by a secured party to recover damages or property, based upon the sale of livestock which when sold is the secured party's collateral, against the market agency which in the ordinary course of business conducts the auction of the livestock, or against a buyer in ordinary course of business shall be commenced within 2 years after the date of sale of the livestock, or be barred, if:
893.36(1m)(a)
(a) The debtor signs or endorses any writing arising from the transaction, including a check or draft, which states that the sale of the livestock is permitted by the secured party; and
893.36(1m)(b)
(b) The secured party does not commence an action, within 2 years after the date of sale of the livestock against the debtor for purposes of enforcing rights under the security agreement or an obligation secured by the security agreement.
893.36(2)
(2) This section does not apply to actions based upon a sale of livestock occurring prior to April 3, 1980, nor to an action by a secured party against its debtor.
Section 893.35 or
893.51 applies to any action described in
sub. (1m) if the limitation described in
sub. (1m) is not applicable.
893.37
893.37
Survey. No action may be brought against an engineer or any professional land surveyor, as defined in
s. 443.01 (7m), 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.
893.37 History
History: 1979 c. 323 s.
3; Stats. 1979 s. 893.36;
1979 c. 355 s.
228; Stats. 1979 s. 893.37;
2013 a. 358.
893.37 Annotation
The discovery rule applies to statutes of limitations that limit the time to sue from the time when the action “accrues," being the time of discovery. The discovery rule does not apply to this section because it is a statute of repose, a statute that specifies the time of accrual (in this statute the time when the injury occurred) and limits the time suit can be brought from that specified date. Tomczak v. Bailey,
218 Wis. 2d 245,
578 N.W.2d 166 (1998),
95-2733.
ACTIONS RELATING TO CONTRACTS
AND COURT JUDGMENTS
893.40
893.40
Action on judgment or decree; court of record. Except as provided in
ss. 846.04 (2) and
(3) and
893.415, action upon a judgment or decree of a court of record of any state or of the United States shall be commenced within 20 years after the judgment or decree is entered or be barred.
893.40 Note
Judicial Council Committee's Note, 1979: This section has been created to combine the provisions of repealed ss. 893.16 (1) and 893.18 (1). A substantive change from prior law results as the time period for an action upon a judgment of a court of record sitting without this state is increased from 10 years to 20 years and runs from the time of entry of a judgment. The separate statute of limitations for an action upon a sealed instrument is repealed as unnecessary. [Bill 326-A]
893.40 Annotation
The defendant was prejudiced by an unreasonable 16-year delay in bringing suit; thus laches barred suit even though the applicable limitation period did not. Schafer v. Wegner,
78 Wis. 2d 127,
254 N.W.2d 193 (1977).
893.40 Annotation
A request by the state or an offender to correct a clerical error in the sentence portion of a written judgment to reflect accurately an oral pronouncement of sentence is not an “action upon a judgment" under this section. State v. Prihoda,
2000 WI 123,
239 Wis. 2d 244,
618 N.W.2d 857,
98-2263.
893.40 Annotation
This section clearly and unambiguously specifies that the date when a cause of action to collect past-due child support payments begins to run is the date when a judgment ordering payments is entered. State v. Hamilton,
2003 WI 50,
261 Wis. 2d 458,
661 N.W.2d 832,
01-1014.
893.40 Annotation
Under the circumstances present in this case where a statute precluded a provision in a judgment, the statute of repose could not begin to run as to that provision until the legislature changed the law such that the provision could be carried out. Johnson v. Masters,
2013 WI 43,
347 Wis. 2d 238,
830 N.W.2d 647,
11-1240.
893.41
893.41
Breach of contract to marry; action to recover property. An action to recover property procured by fraud by a party in representing that he or she intended to marry the party providing the property and not breach the contract to marry, to which
s. 768.06 applies, shall be commenced within one year after the breach of the contract to marry.
893.41 History
History: 1979 c. 323;
1981 c. 314 s.
146.
893.41 Note
Judicial Council Committee's Note, 1979: This section has been created to place into ch. 893 the statute of limitations for an action to recover property for an alleged breach of a contract to marry. See also note following s. 768.06. [Bill 326-A]
893.415
893.415
Action to collect support. 893.415(1)
(1) In this section, “action" means any proceeding brought before a court, whether commenced by a petition, motion, order to show cause, or other pleading.
893.415(2)
(2) An action to collect child or family support owed under a judgment or order entered under
ch. 767, or to collect child support owed under a judgment or order entered under
s. 48.355 (2) (b) 4. or
(4g) (a),
48.357 (5m) (a),
48.363 (2),
938.183 (4),
938.355 (2) (b) 4. or
(4g) (a),
938.357 (5m) (a),
938.363 (2), or
948.22 (7), shall be commenced within 20 years after the youngest child for whom the support was ordered under the judgment or order reaches the age of 18 or, if the child is enrolled full-time in high school or its equivalent, reaches the age of 19.
893.415(3)
(3) An action under this section is commenced when the petition, motion, order to show cause, or other pleading commencing the action is filed with the court, except that an action under this section is not commenced if proper notice of the action, as required by law or by the court, has not been provided to the respondent in the action within 90 days after the petition, motion, order to show cause, or other pleading is filed.
893.415 History
History: 2003 a. 287;
2015 a. 373.
893.42
893.42
Action on a judgment of court not of record. An action upon a judgment of a court not of record shall be commenced within 6 years of entry of judgment or be barred.
893.42 History
History: 1979 c. 323.
893.42 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.19 (1) renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.425
893.425
Fraudulent transfers. An action with respect to a fraudulent transfer or obligation under
ch. 242 shall be barred unless the action is commenced:
893.425(1)
(1) Under
s. 242.04 (1) (a), within 4 years after the transfer is made or the obligation is incurred or, if later, within one year after the transfer or obligation is or could reasonably have been discovered by the claimant.
893.425(3)
(3) Under
s. 242.05 (2), within one year after the transfer is made or the obligation is incurred.
893.425 History
History: 1987 a. 192.
893.43
893.43
Action on contract. 893.43(1)
(1) Except as provided in
sub. (2), an action upon any contract, obligation, or liability, express or implied, including an action to recover fees for professional services, except those mentioned in
s. 893.40, shall be commenced within 6 years after the cause of action accrues or be barred.
893.43(2)
(2) An action upon a motor vehicle insurance policy described in
s. 632.32 (1) shall be commenced within 3 years after the cause of action accrues or be barred. A cause of action involving underinsured motorist coverage, as defined in
s. 632.32 (2) (d), or uninsured motorist coverage, as defined in
s. 632.32 (2) (f), accrues on the date there is final resolution of the underlying cause of action by the injured party against the tortfeasor.
893.43 History
History: 1979 c. 323;
2015 a. 133.
893.43 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.19 (3) renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.43 Annotation
A bonus plan to compensate for increased profits is a contract. Younger v. Rosenow Paper & Supply Co.
51 Wis. 2d 619,
188 N.W.2d 507 (1971).
893.43 Annotation
An action to recover benefits under a pension plan is an action to enforce a contract, not an action for wages. Estate of Schroeder v. Gateway Transportation Co., Inc.
53 Wis. 2d 59,
191 N.W.2d 860 (1971).
893.43 Annotation
An action for personal injuries resulting from medical malpractice, although based on contract, is subject to the 3-year limitation for injuries to the person. Estate of Kohls v. Brah,
57 Wis. 2d 141,
203 N.W.2d 666 (1973).
893.43 Annotation
An action by an insured against an insurance agent for failing to procure requested coverage is not an action against the insurer on the policy, but is an action resting upon the agent's contract with the insured to procure the insurance coverage agreed upon subject to the statute of limitations for contract. Estate of Ensz v. Brown Insurance Agency, Inc.
66 Wis. 2d 193,
223 N.W.2d 903 (1974).
893.43 Annotation
A cause of action for contribution is based upon a contract implied by law and must be brought within 6 years after one joint tortfeasor has paid more than his or her share. Hartford Fire Insurance Co. v. Osborn Plumbing,
66 Wis. 2d 454,
225 N.W.2d 628 (1973).
893.43 Annotation
When an employer deducted a “hypothetical tax factor" from salaries of its overseas employees so as to equalize compensation of its employees worldwide, an action to recover amounts so deducted had to be brought within the limitation period on wage claims, and not the period on other contract claims. Sussmann v. Gleisner,
80 Wis. 2d 435,
259 N.W.2d 114 (1977).
893.43 Annotation
If the object of a disputed contract is the end product or fruit of human labor rather than the labor per se, s. 893.19 (3) [now s. 893.43], applies rather than s. 893.21 (5) [now s. 893.44]. Rupp v. O'Connor,
81 Wis. 2d 436,
261 N.W.2d 815 (1978).
893.43 Annotation
Partial payment of an obligation made prior to the running of the statute of limitations tolls the statute and sets it running from the date of payment. St. Mary's Hospital Medical Center v. Tarkenton,
103 Wis. 2d 422,
309 N.W.2d 14 (Ct. App. 1981).
893.43 Annotation
A breach of a roofing contract occurred when the faulty roof was completed, not when the building was completed. State v. Holland Plastics Co.
111 Wis. 2d 497,
331 N.W.2d 320 (1983).
893.43 Annotation
An unjust enrichment claim accrues when a cohabitational relationship terminates. The court does not determine what statute of limitations, if any, applies. Watts (Bischoff) v. Watts,
152 Wis. 2d 370,
448 N.W.2d 292 (Ct. App. 1989).
893.43 Annotation
A contract cause of action accrues at the time of the breach. The discovery rule is inapplicable. CLL Associates v. Arrowhead Pacific,
174 Wis. 2d 604,
497 N.W.2d 115 (1993).
893.43 Annotation
This section applies to actions for the recovery of sales commissions. Erdman v. Jovoco, Inc.
181 Wis. 2d 736,
512 N.W.2d 487 (1994).
893.43 Annotation
A party's deficient performance of a contract does not give rise to a tort claim. There must be a duty independent of the contract for a cause of action in tort. Atkinson v. Everbrite, Inc.
224 Wis. 2d 724,
592 N.W.2d 299 (Ct. App. 1999),
98-1806.
893.43 Annotation
For actions seeking coverage under an underinsured motorist policy, the statute of limitations begins to run from the date of loss, which is the date on which a final resolution is reached in the underlying claim against the tortfeasor, be it through denial of that claim, settlement, judgment, execution of releases, or other form of resolution, whichever is the latest. Yocherer v. Farmers Insurance Exchange,
2002 WI 41,
252 Wis. 2d 114,
643 N.W.2d 457,
00-0944.
893.43 Annotation
The label of the documents here — “access easement agreement" — and the fact that each was signed by both parties did not transform the grants of easement into contracts subject to contract law. The plaintiffs alleged that a driveway could not be built on the easements described in the agreements because of a wetland delineation and sought a modification of the easements. This claim for relief was an action to enforce the recorded easements, albeit a modified version, and was therefore governed by s. 893.33 (6), not the contract statute, s. 893.43.
893.43 Annotation
An unconscionability of contract claim is governed by this section. Dairyland Power Coop. v. Amax Inc.
700 F. Supp. 979 (1986).
893.43 Annotation
Rescission is not an “action upon the contract," as that phrase is used in this section. CMFG Life Insurance Company v. RBS Securities, Incorporated, 799 F3d 729 (2015).
893.44
893.44
Compensation for personal service. 893.44(1)
(1) Any action to recover unpaid salary, wages or other compensation for personal services, except actions to recover fees for professional services and except as provided in
sub. (2), shall be commenced within 2 years after the cause of action accrues or be barred.
893.44(2)
(2) An action to recover wages under
s. 109.09 shall be commenced within 2 years after the claim is filed with the department of workforce development or be barred.
893.44 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.21 (5) renumbered for more logical placement in restructured ch. 893. Actions to collect fees for professional services are brought under s. 893.43. [Bill 326-A]
893.44 Annotation
A stock-purchase plan as a reward for increased profits is not subject to s. 893.21 (5) [now s. 893.44]. Younger v. Rosenow Paper & Supply Co.
51 Wis. 2d 619,
188 N.W.2d 507 (1971).
893.44 Annotation
Professional services by a physician or attorney, although not customarily performed in the profession, may be classified as professional if requested by reason of the professional's expertise and training, if the professional then utilizes that knowledge and training. If the services are so classified depends upon the facts of the particular employment. Lorenz v. Dreske,
62 Wis. 2d 273,
214 N.W.2d 753 (1974).
