text:
    Westhaven Associates, Ltd., Plaintiff-Respondent-Cross-Appellant, v. C.C. of Madison, Inc. d/b/a Cost Cutters, Defendant-Appellant-Cross-Respondent.
    Court of Appeals

      No. 01-1953.

      Submitted on briefs March 14, 2002.

    Decided August 29, 2002.

    2002 WI App 230
    (Also reported in 652 N.W.2d 819.)

      On behalf of the defendant-appellant-cross-respondent, the cause was submitted on the briefs of Stephen J. Nording and Laura E. Callan of Solheim Billing & Grimmer, S.C., Madison.
    On behalf of the plaintiff-respondent-cross-appellant, the cause was submitted on the briefs of Todd G. Smith of La Follette Godfrey & Kahn, Madison.
    Before Dykman, Deininger and Lundsten, JJ.
   LUNDSTEN, J.

¶ 1. C.C. of Madison, Inc. (Cost Cutters) rented space in a mall owned by Westhaven Associates, Ltd. (Westhaven). Cost Cutters breached its lease by vacating, and Westhaven sought to enforce various lease provisions. The parties dispute whether stipulated damages provisions in the lease are reasonable, and thus enforceable liquidated damages provisions, or unreasonable, and thus unenforceable penalty provisions. Following the terminology used in the seminal case on this topic, Wassenaar v. Panos, 111 Wis. 2d 518, 521, 331 N.W.2d 357 (1983), we use the term "stipulated damages" to mean the damages specified in the lease and "liquidated damages" to mean reasonable and enforceable stipulated damages. The parties also dispute whether the lease permits Westhaven to recover attorneys' fees it incurred in its attempt to enforce various lease provisions against Cost Cutters.

¶ 2. The circuit court concluded that the stipulated damages provisions were unreasonable and therefore unenforceable penalty provisions. The circuit court also awarded attorneys' fees to Westhaven relating solely to Westhaven's attempt to enforce lease provisions against Cost Cutters. We reverse both decisions and remand.

Background

¶ 3. The parties stipulated to the facts necessary for the resolution of this case. Westhaven owns the Westhaven Village Shopping Center (Shopping Center). On July 28,1997, Cost Cutters entered into a lease with Westhaven. Cost Cutters leased about 17% of the available rentable space in the Shopping Center. The lease term was ten years.

¶ 4. On October 9, 1999, Cost Cutters closed its store without Westhaven's approval. At this time, the lease rate was $49.58 per day. Before the parties entered into the lease on July 28, 1997, the Shopping Center's occupancy rate was 71%. The Shopping Center's occupancy rate fluctuated after the parties signed the lease, dropping to 53% in October 1999 prior to Cost Cutters' departure. By March 2000, the occupancy rate increased to 72%. From February 1, 2000, forward, Cost Cutters did not pay rent. In accordance with the lease, Westhaven attempted to find a new tenant for the Cost Cutters space. The space remained vacant until it was leased to a third party beginning December 1, 2000. Westhaven then sued Cost Cutters seeking attorneys' fees, rent, and contract damages relating to the approximately thirteen-month period the space remained unoccupied.

¶ 5. Westhaven sought relief under paragraph 14.00 of the lease entitled "Default by Tenant." Paragraph 14.00 sets forth Westhaven's remedies in the event Cost Cutters "defaults in the payment of Minimum Rent or other charges or in the performance of any other of Tenant's obligations hereunder, and fails to remedy such default within ten (10) days after written notice from Landlord. . . ." Paragraph 14.00 presents Westhaven with two options if Cost Cutters fails to remedy its default: first, Westhaven can terminate the lease, reenter the premises, and recover from Cost Cutters "any sums due Landlord for rent or otherwise to the date of such entry," and liquidated damages; second, Westhaven can choose to not terminate the lease and attempt to relet in its own name for the remainder of the term and then recover from Cost Cutters "any deficiency.. . between the amount for which the premises were relet, less expense of reletting, including all necessary repairs and alterations and reasonable attorney's fees and the rent provided hereunder."

¶ 6. Westhaven exercised the second option under paragraph 14.00. There was no dispute that under this paragraph Westhaven was entitled to the lease rate of $49.58 for each day between October 9, 1999, when Cost Cutters vacated, and December 1, 2000, when the space was sublet. However, the parties dispute whether Westhaven was entitled to certain attorneys' fees pursuant to paragraph 14.00. Westhaven sought $15,670 in attorneys' fees consisting solely of fees relating to its litigation with Cost Cutters.

¶ 7. In addition, Westhaven's exercise of the second option under paragraph 14.00 permits Westhaven to seek stipulated damages under paragraphs 3.02 and 8.00(n) of the lease. Paragraph 3.02 requires Cost Cutters to pay Westhaven $20 per day if Cost Cutters fails to keep its premises open for business during "normal business hours." Westhaven argued that it was entitled to $20 per day for each violation of paragraph 3.02 from October 14, 1999, to November 30, 2000. Paragraph 8.00(n) of the lease requires Cost Cutters to pay a sum equal to Cost Cutters' normal daily rent for each day Cost Cutters fails to keep its premises open for business during specified "minimum hours." West-haven argued that it was entitled to an amount equal to the daily rent for each violation of paragraph 8.00(n) from October 14, 1999, to November 30, 2000.

¶ 8. Both parties sought summary judgment. Cost Cutters argued that the attorneys' fees sought by West-haven are not covered under paragraph 14.00 because those fees were not incurred for the purpose of finding a new tenant for the space vacated by Cost Cutters. Cost Cutters also argued that paragraphs 3.02 and 8.00(n) (collectively the "failure to do business" provisions) are unenforceable penalty provisions.

¶ 9. The circuit court determined that Westhaven was entitled to recover attorneys' fees as a result of Cost Cutters' breach of the lease. But the circuit court ruled that the "failure to do business" provisions contained in paragraphs 3.02 and 8.00(n) were unreasonable and, therefore, unenforceable.

¶ 10. Cost Cutters appeals the circuit court's award of attorneys' fees and Westhaven cross-appeals the circuit court's determination that the "failure to do business" provisions were unenforceable.

Discussion

¶ 11. Cost Cutters appeals and Westhaven cross-appeals the circuit court's grant of summary judgment. We review summary judgment decisions de novo, applying the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). That methodology is well established and need not be repeated here. See, e.g., Lambre-cht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶ 20-24, 241 Wis. 2d 804, 623 N.W.2d 751.

A. Cost Cutters' Appeal of the Award of Attorneys' Fees

¶ 12. The parties agree that under the lease, attorneys' fees are recoverable only as an expense of reletting. However, they disagree as to whether the attorneys' fees claimed in this action constitute an expense of reletting. "[T]he application of a set of facts to the terms of a commercial lease and the determination of the parties' rights under that lease present questions of law that we review independently of the trial court's determination." Bence v. Spinato, 196 Wis. 2d 398, 408, 538 N.W.2d 614 (Ct. App. 1995).

¶ 13. We are required to determine whether the attorneys' fees incurred by Westhaven as a result of this action are properly characterized as an expense of reletting. Wisconsin follows the American Rule, under which "parties to litigation are generally responsible for their own attorney's fees unless recovery is expressly allowed by either contract or statute, or when recovery results from third-party litigation." DeChant v. Monarch Life Ins. Co., 200 Wis. 2d 559, 571, 547 N.W.2d 592 (1996). We "will not construe an obligation to pay attorneys' fees contrary to the American Rule unless the contract provision clearly and unambiguously so provides." Hunzinger Constr. Co. v. Granite Res. Corp., 196 Wis. 2d 327, 340, 538 N.W.2d 804 (Ct. App. 1995).

¶ 14. As best we understand Westhaven's argument, it begins with the premise that Westhaven has the right to recover the deficiency between the rent and liquidated damages owed by Cost Cutters and the rent received by Westhaven from any new tenant. From this premise, Westhaven reasons it is entitled to recover attorneys' fees incurred in the process of recovering such a deficiency, regardless whether the attorneys' fees are incurred for the purpose of re-renting the space to a third party or for the purpose of pursuing an action against Cost Cutters. Westhaven says it "simply seeks the attorney fees that it incurred when it was forced to sue Cost Cutters to recover the deficiency in rent it experienced after Cost Cutters moved out of the mall and stopped paying rent."

¶ 15. However, the lease's plain language does not permit Westhaven to recover attorneys' fees incurred in pursuing rent deficiencies and stipulated damages from Cost Cutters. Rather, the lease language limits recovery of attorneys' fees to those related to efforts to "relet." We conclude that litigation expenses in a suit against Cost Cutters are not expenses related to an attempt to relet to a third party. The record reveals that Westhaven's attorneys' fees were incurred as a result of litigation against Cost Cutters. Therefore, Westhaven is unable to collect any of the attorneys' fees, and we reverse the circuit court's decision.

B. Westhaven's Cross-Appeal on the Enforceability of the "Failure to Do Business" Provisions

¶ 16. Westhaven argues that the uncontested facts show that the "failure to do business" provisions are not unenforceable penalty provisions. The review of a stipulated damages provision is a mixed question of law and fact. Wassenaar, 111 Wis. 2d at 525. Normally, "because the trial court's legal conclusion, that is, whether the clause is reasonable, is so intertwined with the factual findings supporting that conclusion, the appellate court should give weight to the trial court's decision, although the trial court's decision is not controlling." Id. However, where the parties have stipulated to the facts, and thus the circuit court makes no factual findings, only legal issues remain and, therefore, our review is de novo. Lewis v. Physicians Ins. Co. of Wis., 2001 WI 60, ¶ 9, 243 Wis. 2d 648, 627 N.W.2d 484; see Bence, 196 Wis. 2d at 408 (we review application of a set of facts to the terms of a commercial lease and the determination of the parties' rights under that lease de novo).

¶ 17. A stipulated damages provision will be enforced if it is reasonable under the totality of the circumstances. Wassenaar, 111 Wis. 2d at 526. The court looks at several factors to determine reasonableness: "(1) Did the parties intend to provide for damages or for a penalty? (2) Is the injury caused by the breach one that is difficult or incapable of accurate estimation at the time of contract? and (3) Are the stipulated damages a reasonable forecast of the harm caused by the breach?" Id. at 529-30 (footnotes omitted). Essentially, we must look at both the "harm anticipated at the time of contract formation and the actual harm at the time of breach." Id. at 532. The factors are not meant to be mechanically applied, and courts may give some factors greater weight than others. Id. at 533.

¶ 18. Courts generally assume that "bargains are enforceable and that the party asking the court to intervene to invalidate a bargain should demonstrate the justice of his or her position." Id. at 526. At least in situations like the one before us, where neither party complains of inequity in bargaining power, see id. at 536, the party seeking to avoid a stipulated damages provision bears both the "burden of proving facts which would justify the trial court's concluding that the clause should not be enforced" and the burden of persuading the court that the provision should not be enforced. Id. at 526, 539-40; see also Northwestern Motor Car, Inc. v. Pope, 51 Wis. 2d 292, 295, 187 N.W.2d 200 (1971). Thus, here, where the facts are uncontested, Cost Cutters bears the burden of persuading this court that the stipulated damages provisions are unreasonable.

1. Whether the Parties Intended the Provision to be a Liquidated Damages Provision or a Penalty

¶ 19. The first factor we examine when determining the reasonableness of a stipulated damages provision is whether the parties intended the provision to provide liquidated damages or to provide a penalty. As explained in Koenings v. Joseph Schlitz Brewing Co., 126 Wis. 2d 349, 377 N.W.2d 593 (1985), this factor is "rarely helpful" because the parties' intent has "little relevance to what is reasonable in law." Id. at 362. Nevertheless, we examine this topic because "the parties' intent may have some evidentiary value." Id.

¶ 20. Cost Cutters argues that the "failure to do business" provisions impose two different fees on the same conduct, evincing a punitive intent. In addition, Cost Cutters contends that the provisions are penalties because the provisions were part of a form lease and not geared to the particular circumstances of Cost Cutters. However, Cost Cutters fails to explain why the presence of two form provisions prohibiting the same conduct turns the provisions into an impermissible penalty. Even assuming the provisions prohibit the same conduct, it does not follow that the provisions thus become penalties. Neither case law nor logic requires a stipulated damages provision to appear but once in a contract in order to be enforceable. Moreover, the stipulated damages provisions, taken together, set the damages at an amount tied to Cost Cutters' base rent, which is presumably based on the amount and location of the space leased by Cost Cutters. Therefore, the provisions, taken together, are at least somewhat tailored to the space leased by Cost Cutters.

¶ 21. Cost Cutters also argues that because neither provision requires mitigation by the landlord, the provisions are penalties, citing Frank Nero Auto Lease, Inc. v. Townsend, 411 N.E.2d 507 (Ohio Ct. App. 1979). Townsend involved a motor vehicle lease agreement that allowed the lessor to repossess an automobile and accelerate future rents upon the lessee's default. Id. at 511. In addition, the lease permitted the lessor to regain possession of the vehicle and relet or resell the vehicle while collecting the full rent from the lessee for the life of the contract without any. obligation to mitigate. Id. However, the fact that the "failure to do business" provisions do not contain mitigation clauses is not controlling in this case because a mitigation clause is contained elsewhere in the lease, unlike the lease in Townsend. Westhaven was required to attempt mitigation under the second option in paragraph 14.00. Thus, Townsend is easily distinguished.

¶ 22. We do not regard the parties' arguments relating to the first factor as particularly helpful, and we move on to the other two factors.

2. Whether the Damages Were Ascertainable at the Time of Contracting, and Whether the Stipulated Damages Reasonably Forecasted the Actual Damages

¶ 23. The second factor used to determine the reasonableness of a stipulated damages provision examines whether the damages can be estimated at the time of contracting. The third factor examines whether the stipulated damages provisions are a reasonable forecast of the harm caused by the breach. See Wassenaar, 111 Wis. 2d at 530-31. The Wassenaar court stated that these two "factors are intertwined, and both use a combined prospective-retrospective approach." Id. at 531.

¶ 24. Although the second and third factors both use a prospective-retrospective approach, the fact remains that they require two distinct inquiries: the reasonableness of the stipulated damages provision at the time of contracting and the reasonableness of the provision when compared with actual damages after a breach. See Pollack v. Calimag, 157 Wis. 2d 222, 240-41, 458 N.W.2d 591 (Ct. App. 1990); see also Koenings, 126 Wis. 2d at 371 ("The touchstone of the reasonableness under the totality of the circumstances test must still be the relationship of anticipated and actual harm to the stipulated amount of damages, as expressed in the Wassenaar factors."). We first address whether the "failure to do business" provisions were reasonable at the time of contracting.

a. Time of Contracting

¶ 25. Cost Cutters first argues that the stipulated damages provisions were unreasonable at the time of contracting because the parties should have been able to predict there would be no harm beyond lost rent if Cost Cutters breached. Cost Cutters reasons that because Westhaven collects a fixed rent from Cost Cutters, rather than a variable rent based on Cost Cutters' sales, Westhaven is entitled to the same rental income whether or not Cost Cutters vacates. We disagree with Cost Cutters' reasoning.

¶ 26. Westhaven's managing general partner testified by affidavit about the harm caused by vacating businesses:

When a business fails to keep its business open, other tenants are harmed because each tenant brings potential customer foot traffic into the mall who then may shop the other businesses. Failing to remain open has a slow but certain negative effect on the value of the property because as tenants lose business and customers patronize competitor malls the rent the landlord may charge to future tenants decreases and renewal rate of existing tenants decreases .... Over time, the very economic viability of the shopping center is threatened because the costs of operating the mall outweigh the rents received.

In addition, at his deposition Cost Cutters' president acknowledged the harm caused by vacancies in malls: "Why don't I build freestanding buildings? I like the traffic. They, Hollywood Video, . . . they have a lot of people every single day. That hurt my business when they went out."

¶ 27. As tenants vacate, a shopping center receives less customer traffic, potentially causing other tenants to vacate or go out of business. These consequential damages are often difficult to prove, but that does not prevent sophisticated parties from including consequential damages when estimating the damages at the time of contracting. See Wassenaar, 111 Wis. 2d at 535-36 (stating that parties may reasonably include in their estimates damages that reflect actual harm, rather than just the harm that may be proved in court).

¶ 28. Next, Cost Cutters argues that the provisions are unreasonable because Cost Cutters has no opportunity to cure a minor or justifiable breach. Cost Cutters alleges that such default clauses are unenforceable when any violation could trigger them, citing Mayfield v. Hicks, 575 S.W.2d 571 (Tex. Civ. App. 1978). Cost Cutters' reliance on Mayfield is misplaced. In Mayfield, an equipment lease permitted the lessor to declare a breach of the lease "upon the occurrence of even a minor default." Id. at 575. That court found that "[t]he coupling of repossession with acceleration of rent, irrespective of the type of breach, is the defect in this provision." Id. In contrast, under the lease here, West-haven must give Cost Cutters written notice as well as ten days to remedy the violation before declaring a breach of the lease. Thus, a minor violation of the "failure to do business" provisions will not automatically breach the lease. Although a minor violation may lead to money damages, a minor violation cannot lead to the "repossession with acceleration of rent" to which the Mayfield court objected.

¶ 29. Furthermore, Cost Cutters argues that the provisions are unreasonable because the "failure to do business" fees accrue regardless of the tenant mix, and would be assessed even if Cost Cutters were the only store left in the mall. This hypothetical scenario is too speculative to render the provisions unreasonable at the time of contracting. Furthermore, if this scenario had come to pass, it would have been more properly analyzed by comparing the stipulated damages provisions to the actual harm caused.

¶ 30. Cost Cutters has failed to persuade us that the "failure to do business" fees were an unreasonable estimation of Westhaven's damages. Cost Cutters did not, for example, present expert testimony that the stipulated damages provisions were unusually harsh as compared with stipulated damages provisions found in other multi-tenant retail commercial leases. To the contrary, in this case Cost Cutters' president, in his deposition testimony, admitted that similar "failure to do business" provisions are common in leases with other shopping malls.

b. After Breach

¶ 31. Next, we turn to the question whether the stipulated damages are reasonable in light of the actual damages caused by the breach. See Wassenaar, 111 Wis. 2d at 530. As stated above, it is incumbent on Cost Cutters to persuade us that the damages it must pay under the contract do not reasonably relate to the actual harm suffered by Westhaven. Cost Cutters fails to meet this burden.

¶ 32. Cost Cutters argues that Westhaven suffered no harm and thus the provisions unreasonably penalize Cost Cutters. Cost Cutters contends that the lack of evidence of the Shopping Center's property value before or after Cost Cutters closed means that West-haven did not establish any harm. However, Cost Cutters fails to appreciate that it had the burden of producing evidence of unreasonableness. Westhaven was not required to present evidence on value. See id. at 526 ("Placing the burden of proof on the challenger is consistent with giving the non-breaching party the advantage inherent in stipulated damages clauses of eliminating the need to prove damages . . . .").

¶ 33. Cost Cutters also argues that because the occupancy rate at the Shopping Center was low before Cost Cutters departed and actually rose after Cost Cutters left, it is obvious that Westhaven suffered no harm as a result of Cost Cutters' departure. The occupancy rate just prior to Cost Cutters' departure was 53%. About five months later, occupancy had risen to 72%. However, we are not persuaded by the occupancy rate information. Simply because the occupancy rate rose after Cost Cutters' breach does not mean that the breach caused Westhaven no harm. Based on the record before us, the most reasonable inference is that occupancy would have been even higher had Cost Cutters remained in the Shopping Center. When a mall has a low occupancy rate, it does not follow that the mall suffers no harm when a significant tenant vacates. The record contains a letter from another tenant commenting on the harm caused by Cost Cutters' vacating:

I have just recently learned that Cost Cutters, a solid anchor in this mall, will be moving down the street.
... I do not believe that myself ór PD Meats will be able to survive without both a full, thriving mall with tenants that compliment each other and also an anchor ....
I am afraid soon I'll be the only one here and [the Shopping Center] will become not a shopping destination, but a place to avoid because businesses fail and close.

In a subsequent letter, the same tenant stated: "My market study was based on the fact that there was a video store and a hair care business as [an] anchor and a draw to this Center. These business[es] have closed and moved, which has a significant impact on my bottom line."

¶ 34. We conclude that Cost Cutters has failed to meet its burden of persuasion. Cost Cutters has not shown that the stipulated damages provisions in the lease were unreasonable under the totality of the circumstances.

Conclusion

¶ 35. We conclude that the plain language of the lease does not permit Westhaven to recover its attorneys' fees incurred in this suit because they are not expenses of reletting. Additionally, we conclude that Cost Cutters has failed to show that the stipulated damages provisions in the lease were unreasonable. Westhaven is entitled to stipulated damages under both paragraphs 3.02 and 8.00(n). Therefore, we reverse both decisions of the circuit court and remand for further proceedings consistent with this opinion.

By the Court. — Judgment reversed and cause remanded with directions.

       By agreement of the parties, Cost Cutters sublet its space on December 1, 2000. Whether the space was sublet or relet is not pertinent to our inquiry.

       Westhaven contends "normal business hours" and "minimum hours" are two different concepts under the contract. In Westhaven's view, normal business hours are the typical business hours of a business such as Cost Cutters, while "minimum hours" are the specified hours the Shopping Center is open for business. Westhaven argues that the two provisions target two different activities and are thus not penalty clauses. Cost Cutters disagrees with this analysis. For reasons we discuss below, we need not address this issue.

       If Westhaven had chosen the first option under paragraph 14.00, there would have been no mitigation requirement, but at the same time had Westhaven chosen that first option, it could not have collected damages under paragraph 3.02 or paragraph 8.00(n).


source: Caselaw Access Project

author: DEININGER, J.

license: Public Domain

text:
    Peter M. Selzer, Plaintiff-Appellant, v. Brunsell Brothers, Ltd. and St. Paul Fire & Marine Insurance Company, Defendants, Marvin Windows, Inc., Marvin Lumber & Cedar Company, and Marvin Windows of Tennessee, Defendants-Respondents.
    Court of Appeals

      No. 01-2625.

      Submitted on briefs March 14, 2002.

    Decided August 29, 2002.

    2002 WI App 232
    (Also reported in 652 N.W.2d 806.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of William F. Bauer and Amy F. Scholl of Coyne, Niess, Schultz, Becker & Bauer, S.C., Madison.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Thomas A. Piette of Piette Law Firm, S.C., Waukesha and Donald J. Brown and Thomas H. Boyd of Winthrop & Weinstine, PA., St. Paul, Mn.
    Before Vergeront, PJ., Deininger and Lundsten, JJ.
   DEININGER, J.

¶ 1. Peter Selzer appeals a judgment dismissing his claims against Marvin Lumber & Cedar Company for damages related to the decay of windows Selzer purchased from Marvin for use in his home. Selzer claims Marvin breached an express warranty it made when selling him the windows, as well as an implied warranty arising from the sale transaction. He also claims that a statement in Marvin's product catalog ("all exterior wood is deep-treated to permanently protect against rot and decay") constituted fraudulent advertising under Wis. Stat. § 100.18 (1999-2000), and that the statement renders Marvin liable for strict responsibility and negligent misrepresentation.

¶ 2. We conclude that Selzer's warranty claims and his claim for fraudulent advertising are time-barred. We also conclude that the economic loss doctrine bars Selzer's misrepresentation claims. We therefore affirm the trial court's dismissal of Selzer's claims on summary judgment.

BACKGROUND

¶ 3. Marvin is a manufacturer of windows. As part of the manufacturing process, Marvin treats the wood it uses in its windows with a preservative intended to prevent the growth of wood decay fungi. Marvin advertised its use of a wood preservative in one of its previous product catalogs, stating, "all exterior wood is deep-treated to permanently protect against rot and decay."

¶ 4. At all times relevant to this case, Marvin sold its windows with a one-year warranty on its millwork. As a matter of business policy, Marvin attached a copy of the warranty to every window sold. The warranty provided in part:

Marvin millwork is warranted for one year after sale to be of high quality workmanship and materials, and to be free from defects which might render it unserviceable....
For one year, we agree to repair or replace... without charge, any items which may be defective ....
THE EXPRESS WARRANTIES SET FORTH HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.

¶ 5. By no later than 1990, Selzer purchased and took delivery of a number of Marvin windows for installation in his home. Selzer claims that his architect, acting on his behalf, recommended that he purchase Marvin windows based on the above quoted statement in the Marvin product catalog ("all exterior wood is deep-treated to permanently protect against rot and decay"). Selzer denies that either he or his architect received a copy of Marvin's one-year warranty before the purchase or delivery of the windows.

¶ 6. In 1997, Selzer noticed wood rot in several of the window frames. Over the course of time, the rot spread to the siding below a number of the windows.

¶ 7. Selzer contacted Marvin concerning the window rot. Marvin representatives inspected his home, confirmed the presence of rot in numerous windows, and offered Selzer a discount on new windows.

¶ 8. Selzer declined this offer and filed suit in January 2000. Selzer brought a variety of claims: breach of express and implied warranties, fraudulent misrepresentation under Wis. Stat. § 100.18, intentional misrepresentation, strict responsibility misrepresentation, and negligent misrepresentation.

¶ 9. On cross-motions for summary judgment, the trial court granted summary judgment to Marvin on all claims. Selzer moved the court to reconsider certain aspects of its summary judgment decision; the court denied this motion and entered a final judgment dismissing Selzer's complaint. Selzer appeals the judgment, challenging the dismissal of all of his claims except that for intentional misrepresentation, which he no longer pursues.

ANALYSIS

¶ 10. We review a circuit court's grant or denial of summary judgment de novo, owing no deference to the trial court's decision. Waters v. United States Fid. & Guar. Co., 124 Wis. 2d 275, 278, 369 N.W.2d 755 (Ct. App. 1985). "[SJummary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." M&I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 497, 536 N.W.2d 175 (Ct. App. 1995); see also Wis. Stat. § 802.08(2). We will reverse a decision granting summary judgment if either (1) the trial court incorrectly decided legal issues, or (2) material facts are in dispute. Coopman v. State Farm Fire & Cas. Co., 179 Wis. 2d 548, 555, 508 N.W.2d 610 (Ct. App. 1993). In our review, we, like the trial court, are prohibited from deciding issues of fact; our inquiry is limited to a determination of whether a factual issue exists. Id.

¶ 11. Generally, when both parties move for summary judgment and neither argues that factual disputes bar the other's motion, the " 'practical effect is that the facts are stipulated and only issues of law are before us.'" See Lucas v. Godfrey, 161 Wis. 2d 51, 57, 467 N.W.2d 180 (Ct. App. 1991) (citation omitted). Here, the parties dispute certain facts relating to the applicability of Marvin's one-year "limited" warranty. Marvin claims that it communicated the warranty terms to Selzer and his agents through a variety of means, and that these terms bar Selzer's warranty claims. Selzer replies that he knew nothing of the warranty before purchasing the windows, and even if he had, Marvin waived the warranty through its course of conduct.

¶ 12. This factual dispute does not require us to reverse the trial court's grant of summary judgment, however. To require reversal, an asserted factual dispute must be material; that is, it must concern a fact that affects the resolution of the controversy. Clay v. Horton Mfg. Co., Inc., 172 Wis. 2d 349, 353-54, 493 N.W.2d 379 (Ct. App. 1992). The dispute concerning Marvin's one-year warranty does not preclude a resolution of this litigation as a matter of law. Even if Marvin's limited warranty does not govern its sale of windows to Selzer, Selzer's warranty claims cannot be sustained for reasons we discuss below.

HH

¶ 13. We first address Selzer's express warranty claim. The elements of an express warranty are: (1) an affirmation of fact; (2) inducement to the buyer; and (3) reliance thereon by the buyer. See Acme Equip. Corp. v. Montgomery Coop. Creamery Ass'n, 29 Wis. 2d 355, 359, 138 N.W.2d 729 (1966). Selzer's architect averred in part:

3. I was the architect involved in the design and specifications of Peter M. Selzer's home located in Verona, Wisconsin. I specified the Marvin windows and doors that were incorporated in the Selzer home.
4. Marvin sent me the attached "Catalog Number 8" which I used extensively in 1988 for the selection of windows for Selzer's home.
5. Page 2 of Catalog Number 8 provides "and all exterior wood is deep-treated to permanently protect against rot and decay." I relied on that language at the time of the design and in selecting Selzer's windows.

¶ 14. Although the averments are sparse, we conclude they are sufficient to support Selzer's claim that, through his architect, he relied on and was induced by the purported warranty. ’ The architect's statements that he received the catalog, used it extensively, and relied on the language at issue in recommending Marvin windows are evidentiary facts within his personal knowledge that we will consider. See Wis. Stat. § 802.08(3); Helland, v. Kurtes A. Froedtert Mem'l Lutheran Hosp., 229 Wis. 2d 751, 764, 601 N.W.2d 318 (Ct. App 1999) (A party opposing summary judgment "must file affidavits or other supporting papers based upon personal knowledge of specific evidentiary facts that are admissible.").

¶ 15. Marvin points to no submissions contradicting these facts. "Evidentiary matters in affidavits accompanying a motion for summary judgment are deemed uncontroverted when competing evidentiary facts are not set forth in counter affidavits." Wisconsin Elec. Power Co. v. California Union Ins. Co., 142 Wis. 2d 673, 684, 419 N.W.2d 255 (Ct. App. 1987). Accordingly, we conclude that Selzer has made a prima facie showing that an express warranty existed with respect to the condition of the windows at the time of sale, specifically, that their exterior wood had been "deep-treated to permanently protect against rot and decay." We next consider Marvin's contention that, even if Selzer's submissions on summary judgment are sufficient to preclude dismissal of the warranty claims for lack of factual support, the claims are nonetheless time-barred.

¶ 16. Because the sale of the windows is a transaction in goods, it is governed by the Uniform Commercial Code — Sales (Wis. Stat. ch. 402). See Wis. Stat. § 402.102. A warranty action must be commenced within six years after the "cause of action has accrued." Wis. Stat. § 402.725(1). Generally, a warranty action accrues at the time the warranty is breached; i.e., at the time of delivery of the goods. See § 402.725(2). If the warranty "explicitly extends to future performance of the goods," however, the statute provides an exception to this rule; namely, the action accrues when the buyer discovers or should have discovered the breach. Id.

¶ 17. Here, the timeliness of Selzer's warranty claims hinges on the applicability of the "future performance" exception in Wis. Stat. § 402.725(2). Marvin delivered the windows by no later than 1990; Selzer filed suit in 2000. If his warranty claims accrued at delivery, the limitation period ended in 1996, well before he filed suit. However, if his claims fall within the "future performance" exception, the claims accrued at the time he first discovered the window rot (1997), and the claims would therefore be timely.

¶ 18. Although no Wisconsin case has determined the scope of the "future performance" exception to Wis. Stat. § 402.725, courts in several other jurisdictions that have enacted the U.C.C. have done so. We may properly look to these rulings to guide our analysis of § 402.725. National Operating v. Mutual Life Ins. Co. of N.Y., 2001 WI 87, ¶ 30, 244 Wis. 2d 839, 630 N.W.2d 116 (Wisconsin courts may properly look to rulings from other jurisdictions that have enacted the U.C.C. in order to promote the uniformity of interpretation of U.C.C. provisions.).

¶ 19. "The courts have applied a stringent standard in determining whether a warranty explicitly extends to future performance." Cooper Power Sys., Inc. v. Union Carbide Chems. & Plastics Co., Inc., 123 F.3d 675, 684 (7th Cir. 1997). Specifically, for such a warranty to exist, " 'there must be specific reference to a future time in the warranty.'" Id. (quoting Standard Alliance Indus. v. Black Clawson Co., 587 F.2d 813, 820 (6th Cir. 1978), cert. denied, 441 U.S. 923 (1979)). The requirement of a "specific reference to a future time" is satisfied when a warranty guarantees a product for a particular number of years, or for a less precise, but still determinable period of time. See Church of the Nativity of Our Lord v. WatPro, Inc., 474 N.W.2d 605, 611 (Minn. Ct. App. 1991) (warranty that roof would remain watertight for ten years constituted warranty of future performance), aff'd, 491 N.W.2d 1 (Minn. 1992); Moore v. Pugent Sound Plywood, Inc., 332 N.W.2d 212, 215 (Neb. 1983) (warranty that product "would last the lifetime of the house" constituted warranty of future performance); see also 1 James J. White & Robert S. Summers, Uniform Commercial Code § 11-9, at 608-09 (4th ed. 1995) (collecting cases).

¶ 20. The use of a "stringent standard" in applying U.C.C. § 2-725(2) comports with the subsection's plain language. While all warranties in a general sense apply to the future performance of goods, the future performance exception applies only where the warranty "explicitly extends to future performance." Wis. Stat. § 402.725(2) (emphasis added); see also White & Summers, Uniform Commercial Code § 11-9, at 608. "Explicitly" is synonymous with clearly, definitely, precisely, and unmistakably, and has been defined as "fully and clearly expressed or demonstrated; leaving nothing merely implied; unequivocal." See Perugi v. State, 104 Wis. 230, 242, 80 N.W. 593 (1899), overruled in part on other grounds by Montgomery v. State, 128 Wis. 183, 107 N.W. 14 (1906); The Random House Dictionary of the English Language 681 (2d ed. 1987). Thus, any ambiguity in warranty language should be interpreted against the existence of a future performance warranty. See 4B Lary Lawrence, Lawrence's Anderson on the Uniform Commercial Code § 2-725:125 (3rd ed. 2001) (collecting cases).

¶ 21. The use of a "stringent standard" in applying U.C.C. § 2-725(2) also comports with the subsection's overriding purpose: to give businesses a clearly defined limit on the period of their potential liability. H. Sand & Co. v. Airtemp Corp., 738 F. Supp. 760, 770 (S.D.N.Y. 1990), aff'd in part, rev'd in part on other grounds, 934 F.2d 450 (2nd Cir. 1991). The drafters of the U.C.C. decided that this goal " 'outweighed the buyer's interest in an extended warranty and reserved the benefits of an extended warranty to those who explicitly bargained for them.'" Id. (citation omitted).

¶ 22. Courts have consistently held that vague statements concerning product longevity do not comply with the requirement of a "specific reference to a future time" that would create a warranty of future performance within the meaning of Wis. Stat. § 402.725(2). See Cooper Power Sys., Inc., 123 F.3d at 684 (statement that product will maintain its appearance for "many years" is not future performance warranty); Economy Hous. Co., Inc. v. Continental Forest Prods., Inc., 805 F.2d 319, 320-21 (8th Cir. 1986) (statement that product "is intended for 'permanent' exterior exposure" is not future performance warranty); Homart Dev. Co. v. Graybar Elec. Co., 63 A.D.2d 727, 727 (N.Y. App. Div. 1978) (statement that product is "designed to give long and reliable service" is not future performance warranty). Rather, where " 'the words alleged to extend a warranty to future performance are so unclearly stated and are so set forth that there is doubt as to their meaning, a court should not infer that more than a warranty of present characteristics, design or condition was intended.'" See Western Recreational Vehicles, Inc. v. Swift Adhesives, Inc., 23 F.3d 1547, 1552 (9th Cir. 1994) (citation omitted).

¶ 23. The statement in Marvin's catalog that "all exterior wood is deep-treated to permanently protect against rot and decay" does not "explicitly" extend to future performance. Rather, the phrase describes a particular feature of Marvin's millwork (that "it is deep-treated" with a wood preservative) as well as the purpose of this feature ("to permanently protect against rot and decay"). Unlike the warranty that Selzer wishes to impose, the phrase falls short of guaranteeing either a rot-free level of protection or any determinable period during which such protection would last. "[A]n express warranty of the present condition of goods without a specific reference to the future is not an explicit warranty of future performance, even if the description implies that the goods will perform a certain way in the future." Marvin Lumber & Cedar Co. v. PPG Indus., Inc., 223 F.3d 873, 879 (8th Cir. 2000) ("PPG"). Thus, we conclude that the phrase at issue does not qualify for the "future performance" extension of the normal warranty limitation period, and that Selzer's express warranty claim is accordingly time-barred.

¶ 24. Similarly, the "future performance" exception is not available to Selzer's implied warranty claim. "Implied warranties cannot, by their very nature, explicitly extend to future performance." Id. at 879. "Stated differently, the statute of limitations will always start to run against claims based on implied warranty from the time when delivery of the goods is tendered." 2 William D. Hawkland, Uniform Commercial Code Series § 2-725:2 (1998) (collecting cases); accord Lawrence, Lawrence's Anderson on the Uniform Commercial Code § 2-725:131 (collecting cases). Thus, Selzer's implied warranty claim accrued upon the delivery of the windows by at the latest 1990, and the limitation period elapsed six years later in 1996. Accordingly, we also affirm the dismissal of this claim as time-barred.

¶ 25. Selzer seeks to avoid this result by arguing that Marvin should be judicially estopped from raising a timeliness argument regarding Selzer's warranty claims. Judicial estoppel precludes a party from asserting a position in a legal proceeding and then later asserting an inconsistent position. See Harrison v. LIRC, 187 Wis. 2d 491, 497, 523 N.W.2d 138 (Ct. App. 1994). The doctrine only may be invoked if: (1) the later position is clearly inconsistent with the earlier position; (2) the facts at issue are the same in both cases; and (3) the party to be estopped convinced the first court to adopt its position. See id.

¶ 26. Marvin brought warranty claims in 1994 against PPG Industries, the manufacturer of a wood preservative known as PILT, which Marvin applied to its windows for a brief period of time. PPG, 223 F.3d at 875. Marvin had discovered that PILT did not protect against wood rot as well as expected. Id. Marvin claimed in the litigation that PPG representatives made several warranties concerning PILT: (1) that it prevents wood rot; (2) that it is a "better product" than Penta (another preservative); (3) that it would last as long as windows treated with Penta; and (4) that it would outlast the twenty-six-year-old windows that a Marvin representative had in his home that had been treated with Penta. Id. at 879-80. The court held that the latter two statements created a genuine issue of material fact with respect to an explicit warranty of future performance, because these statements warranted the future performance of PILT for a specific, determinable period of time; i.e., that it would last as long or longer than Penta. Id. at 880-81. In comparison, the court held that the former two warranties — that PILT prevents rot or is a "better product" than Penta— were merely descriptions of the present qualities of the goods and therefore did not qualify for the future performance exception. Id. at 880.

¶ 27. In addition to the fact that Marvin's allegedly inconsistent arguments were made in factually distinct litigation involving a different party, Selzer's judicial estoppel argument fails on the third element, which requires that the party to be estopped must have convinced a prior court to adopt its position. The court disagreed in PPG with Marvin's argument that warranties describing the present condition of goods may qualify for the future performance exception, holding instead that such warranties do not give rise to a warranty of future performance, the position which Marvin now wants this court to adopt. If we were to conclude that Marvin could not make its present argument, we would encourage parties to ignore the lessons of prior litigation. In short, we see no basis for invoking judicial estoppel against Marvin on this issue. See Harrison, 187 Wis. 2d at 497 (noting that "a litigant is not forever bound to a losing argument").

I — I

¶ 28. We next address the dismissal of Selzer's false advertising claim. Selzer contends the trial court's dismissal of this claim as time-barred violates public policy. We disagree.

¶ 29. Wisconsin's false advertising statute, Wis. Stat. § 100.18(ll)(b)3, provides that "[n]o action may be commenced under this section more than 3 years after the occurrence of the unlawful act or practice which is the subject of the action." By the plain terms of this statute, Selzer's cause of action accrued in 1988 when Marvin provided his architect the catalog containing the allegedly false representation, and his statutory claim expired three years later in 1991. This is so regardless of whether Selzer knew of his injury by 1991. See Kain v. Bluemound East Indus. Park, Inc., 2001 WI App 230, ¶ 14, 248 Wis. 2d 172, 635 N.W.2d 640 (As a statute of repose, § 100.18 requires that a cause of action must be commenced within three years " 'after the defendant's action which allegedly led to the injury, regardless of whether the plaintiff has discovered the injury or wrongdoing.'") (citation omitted).

¶ 30. Selzer argues, however, that "public policy considerations" require that his cause of action should be deemed to have accrued when he discovered the window rot. As we have noted (see footnote 8), Wisconsin courts have consistently held that "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." Tomczak v. Bailey, 218 Wis. 2d 245, 254, 578 N.W.2d 166 (1998). Accordingly, Selzer's public policy arguments are unavailing here.

I — ! HH I — I

¶ 31. Selzer's strict responsibility and negligent misrepresentation claims remain for us to consider. Once again, the statement at issue is that contained in Marvin's product catalog: "all exterior wood is deep-treated to permanently protect against rot and decay." Selzer claims that this statement is a misrepresentation of fact for which Marvin is liable in tort under the theories of strict responsibility and negligent misrepresentation.

¶ 32. Strict responsibility and negligent misrepresentation claims share three common elements: (1) the representation must be of a. fact and made by the defendant; (2) the representation of fact must be untrue; and (3) the plaintiff must have believed the representation and relied on it to his detriment. Oilerman v. O'Rourke Co., Inc., 94 Wis. 2d 17, 25, 288 N.W.2d 95 (1980). The trial court dismissed Selzer's misrepresentation claims on the basis that the evidence he submitted (the architect's affidavit) provided insufficient evidence demonstrating the third element, reliance on the statement at issue. As we have explained (see ¶¶ 14-15), we disagree with the trial court's conclusion in this regard.

¶ 33. Nevertheless, we conclude that Selzer's misrepresentation claims are barred by the economic loss doctrine. The economic loss doctrine recognizes that contracts and torts encompass distinct areas of law that are intended to resolve different types of claims, and the doctrine seeks to maintain this distinction. See Daanen & Janssen, Inc. v. Cedarapids, Inc., 216 Wis. 2d 395, 403-04, 573 N.W.2d 842 (1998); see also East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 866 (1986) (economic loss doctrine seeks to avoid drowning contract law in "a sea of tort"). The rationale underlying the doctrine is that claims concerning strictly "economic" losses (damages suffered because a product does not perform as intended, including damage to the product itself or monetary loss caused by the defective product) are best governed by the contractual obligations between the parties. See Daanen & Janssen, Inc., 216 Wis. 2d at 401-04. Allowing buyers and sellers to allocate the risk of these losses by contract promotes an efficient, predictable marketplace. See id. at 410-12. On the other hand, claims concerning personal injury or damage to property other than the product itself are best governed by tort law, an area of law intended to protect people from misfortunes that are unexpected and overwhelming. See id. at 405; see also Wausau Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235, 248, 593 N.W.2d 445 (1999).

¶ 34. Applying the economic loss doctrine to the facts at hand, we conclude that Selzer may not recover in tort for the cost to repair or replace his rotting windows. These damages are purely economic losses: the windows were not as rot-resistant as Selzer claims to have expected them to be, and the failure caused damage to the windows themselves. Under the economic loss doctrine, the risk of this loss is precisely the risk that the parties allocated (or could have allocated) by contractual warranty provisions. Accordingly, Selzer may not recover in tort for damages measured in terms of the value of the allegedly defective windows or the cost of repairing or replacing them.

¶ 35. Selzer points out, however, that the rot on a number of his windows has spread beyond the windows to his siding, and thus he claims to have suffered "other property" damage that "preclud[es] the application of the economic loss doctrine." See Wausau Tile, Inc., 226 Wis. 2d at 247 ("The economic loss doctrine does not preclude a product purchaser's claims of personal injury or damage to property other than the product itself."). We are not persuaded, however, that the "other property damage" exception to the economic loss doctrine applies on the present facts.

¶ 36. First, Wisconsin courts will not allow the "other property" exception to apply if, at bottom, the claim involves disappointed performance expectations. For example, in D'Huyvetter v. A.O. Smith Harvestore Prods., 164 Wis. 2d 306, 475 N.W.2d 587 (Ct. App. 1991), a farmer's silo failed to be as "air-tight" as expected, which in turn allegedly damaged the feed inside of the silo, which in turn allegedly caused illness, death, and poor production and reproduction among the farmer's livestock. Id. at 326. Despite the fact that the farmer had alleged considerable damage beyond the costs to repair the silo, we held that this damage did not qualify as "other property" damage because all of the alleged damages stemmed directly from the failure of the silo to perform as expected. The damages were therefore properly recoverable in contract, not in tort. Id. at 328; compare with Tony Spychalla Farms, Inc. v. Hopkins Agric. Chem. Co., 151 Wis. 2d 431, 438, 444 N.W.2d 743 (Ct. App. 1989) ("other property" exception applied where chemical intended to prevent potato rot caused potatoes to petrify; product did not simply fail to perform as expected, but damaged other property in an unanticipated manner compensable in tort).

¶ 37. We conclude that the present facts are analogous to those in D'Huyvetter. Selzer expected his windows to resist rot. They failed to do so, which in turn caused damage to the siding adjacent to the windows. A tort claim based on these losses stems directly from the failure of the windows to perform as expected. Because Selzer has not proved any harm beyond disappointed expectations, he is precluded from pursuing a recovery in tort. Had the windows resisted rot but spontaneously shattered, spewing shards of glass into an adjacent Picasso, Selzer might well argue that the defective windows damaged his painting in an entirely unanticipated manner, going well beyond a failure to perform as expected and entitling him to pursue a tort remedy.

¶ 38. A second reason why we conclude the "other property" exception does not apply is that the windows and siding were components of an "integrated system." The integrated system rule holds that once a part becomes integrated into a completed product or system, the entire product or system ceases to be "other property" for purposes of the economic loss doctrine. See Wausau Tile, Inc., 226 Wis. 2d at 251-52 (cement was an integral part of concrete paving block; therefore damage to blocks caused by the cement was not "other property" damage); Cincinnati Ins. Co. v. AM Int'l, Inc., 224 Wis. 2d 456, 463, 591 N.W.2d 869 (Ct. App. 1999) (gear was an integral part of printing press; therefore damage to press caused by the gear was not "other property" damage); Midwhey Powder Co., Inc. v. Clayton Indus., 157 Wis. 2d 585, 590-91, 460 N.W.2d 426 (Ct. App. 1990) (steam generator connected to turbine was an integral part of turbine; therefore damage to turbine caused by generator was not "other property" damage); Midwest Helicopters Airways, Inc. v. Sikorsky Aircraft, 849 F. Supp. 666, 672 (E.D. Wis. 1994), aff'd, 42 F.3d 1391 (7th Cir. 1994) (tail rotor drive system was an integral part of helicopter; therefore destruction of helicopter caused by drive system was not "other property" damage).

¶ 39. We conclude that the "integrated system" rule applies in this case. We cannot discern a meaningful analytical difference between a window in a house, a gear in a printing press, a generator connected to a turbine, or a drive system in a helicopter. In each of these examples, the window, the gear, the generator, and the drive system are integral parts of a greater whole; none of the integral parts serve an independent purpose. Thus, just as the damage to the printing press, the turbine, and the helicopter caused by their integral parts constituted damage to the products themselves, so too did the damage to Selzer's home caused by the windows constitute damage to the product itself, and not damage to "other property" for purposes of the economic loss doctrine. See Bay Breeze Condo. Ass'n v. Norco Windows, Inc., 2002 WI App 205, ¶ 27, No. 01-2689 (concluding that "windows are simply a part of a single system or structure, having no function apart from the buildings for which they were manufactured," and thus the economic loss doctrine prevents recovery in tort for damage to adjacent walls and casements).

¶ 40. Accordingly, we conclude that Selzer's misrepresentation claims are barred by the economic loss doctrine.

CONCLUSION

¶ 41. For the reasons discussed above, we affirm the appealed judgment dismissing all of Selzer's claims against Marvin.

By the Court. — Judgment affirmed.

       Marvin is the last of the five named defendants remaining in this lawsuit. Prior to appeal, Selzer dismissed all claims against Brunsell Brothers, Ltd., St. Paul Fire & Marine Insurance Company, Marvin Windows, Inc., and Marvin Windows of Tennessee.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       We agree with the trial court that the language at issue ("all exterior wood is deep-treated to permanently protect against rot and decay") is an affirmation of fact. Specifically, we conclude that the statement describes the present condition or features of the windows at the time of sale. See ¶ 23 below.

       Marvin does not dispute that because Selzer authorized his architect to select the windows for his home, the architect was acting as Selzer's agent, and any knowledge gained in the course of the agency is imputed to Selzer. See Ivers & Pond Piano Co. v. Peckham, 29 Wis. 2d 364, 369, 139 N.W.2d 57 (1966).

       The trial court dismissed Selzer's express warranty claim because it deemed architect's affidavit "conclusory" and therefore not worthy of consideration on summary judgment. The court opined that the affidavit would have sufficed had the architect stated he chose Marvin windows "because of the statement in question" rather than stating that he "relied on" it. In our de novo review, we focus on the substance of the architect's averments, as opposed to his word choice, and conclude it establishes a prima facie showing of inducement by and reliance on the affirmed fact.

       WISCONSIN Stat. § 402.725, states:
      (1) An action for breach of any contract for sale must be commenced within 6 years after the cause of action has accrued. By the original agreement the parties, if they are merchants, may reduce the period of limitation to not less than one year. The period of limitation may not otherwise be varied by agreement.
      (2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.

       Marvin also asserts that Selzer's reliance on this "Catalog Number 8" was inappropriate because the catalog was outdated. Because we conclude that Selzer's claim for breach of express warranty is time-barred, we do not reach Marvin's improper reliance argument.

       Selzer argues that this result runs afoul of sound public policy, but Wisconsin courts have consistently held that the legislature is the proper entity to address concerns regarding the policies underlying statutes of limitation. See Tomczak v. Bailey, 218 Wis. 2d 245, 254, 578 N.W.2d 166 (1998).

       The record is unclear as to whether Marvin had treated Selzer's windows with PILT. Marvin ceased using PILT at approximately the same time it manufactured Selzer's windows, so it is possible that Marvin treated Selzer's windows with PILT or with its replacement or some with each.

       Unlike his warranty and false advertising claims, Selzer's misrepresentation claims did not accrue until he discovered or should have discovered his injury. See Wis. Stat. § 893.52; Hansen v. A.H. Robins, Inc., 113 Wis. 2d 550, 560, 335 N.W.2d 578 (1983) (discovery rule applies to "all tort actions other than those already governed by a legislatively created discovery rule"). Because the misrepresentation claims have a six-year statute of limitation and Selzer did not discover his injury until 1997, the claims were timely filed. See § 893.52.

       The Wisconsin Supreme Court has applied the economic loss doctrine to consumer transactions, and we have applied it to negligent and strict responsibility misrepresentation claims. See State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 225 Wis. 2d 305, 348, 592 N.W.2d 201 (1999); Kailin v. Armstrong, 2002 WI App 70, ¶ 31 n.20, 252 Wis. 2d 676, 643 N.W.2d 132.

       Several other jurisdictions have reached similar conclusions. See Wausau Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235, 251 n.9, 593 N.W.2d 445 (1999) (noting that the "the jurisprudence of other state and federal courts have guided the development of the economic loss doctrine in Wisconsin since its inception"); Wilson v. Dryvit Sys., Inc., 206 F. Supp. 2d 749, 753-54 (E.D.N.C. 2002) (exterior cladding was integral part of house; therefore moisture intrusion, probable deterioration of sheathing, and rotting of framing, doors, windows, and sub-flooring caused by allegedly defective exterior cladding was not "other property" damage); Calloway v. City of Reno, 993 P.2d 1259, 1267-69 (Nev. 2000) (framing was integral part of townhouses; therefore wood decay and damage to flooring and ceilings caused by allegedly defective framing was not "other property" damage).