Background
Chris Hinrichs, sole shareholder of Autovation Limited, developed and sold “JeeTops” — translucent acrylic panels installed as aftermarket skylights in Jeep vehicles. Beginning in September 2012, Hinrichs purchased adhesives and primers from Dow Chemical to bond the acrylic panels into cut roof openings. He began observing cracking and crazing of the acrylic at the adhesive contact points and reported the problem to Dow, sending samples for testing. In August and October 2013, Dow responded by email, stating it could not certify long-term compatibility with third-party substrates and recommending Hinrichs consult the acrylic manufacturer. Despite those communications, Hinrichs continued purchasing and using the same Dow products, and customer complaints of cracking persisted.
Hinrichs filed suit in August 2016 alleging negligent misrepresentation, intentional misrepresentation, strict responsibility misrepresentation, and a violation of Wisconsin’s Deceptive Trade Practices Act, Wis. Stat. § 100.18. The circuit court dismissed all claims. On a prior appeal the Court of Appeals affirmed dismissal of the common-law claims but reversed on the statutory claim, and the Wisconsin Supreme Court affirmed that ruling in 2020, allowing the § 100.18 claim to proceed on remand. On remand, the circuit court again granted Dow summary judgment — this time on the ground that Hinrichs was not a member of “the public” under § 100.18 because of the parties’ ongoing business relationship. Hinrichs appealed.
The Court of Appeals declined to reach the “member of the public” question and instead resolved the appeal on an alternative ground that the circuit court had not addressed: whether the § 100.18 claim was barred by the statute’s three-year statute of repose.
The Court’s Holding
The Court of Appeals affirmed summary judgment in favor of Dow on the ground that Hinrichs’s § 100.18 claim was time-barred as a matter of law. Under Wis. Stat. § 100.18(11)(b)3., a plaintiff must bring a deceptive-trade-practices claim within three years of the date of the alleged misrepresentation — not the date the injury was discovered. The court found that any representation Dow made to induce Hinrichs’s initial purchase of the A primer necessarily occurred prior to or during September 2012, a fact Hinrichs himself conceded at deposition when he acknowledged that Dow would not have sold him the product unless it had already been tested. Because Hinrichs did not file suit until August 22, 2016, his claim fell outside the three-year window.
The court rejected Hinrichs’s argument that each of his 26 subsequent purchases constituted a separate, independently actionable event sufficient to restart the limitations period. Even accepting that each purchase was a discrete transaction with no continuing contractual obligation, the representations upon which Hinrichs relied were those made before or at the time of his first September 2012 purchase of the A primer. His continued repurchases of the same product did not generate new, independently actionable misrepresentations. The court also rejected reliance on the October 22, 2013 Dow email and test report, noting that document concerned the new G primer — a product Hinrichs never purchased — and that Hinrichs’s post-October 2013 purchases were of the same A primer and Express adhesive he had been using all along, negating any reliance on that communication.
Key Takeaways
- Wisconsin’s § 100.18 deceptive-trade-practices claim carries a three-year statute of repose running from the date of the misrepresentation, not from discovery of the resulting harm — and courts will enforce that deadline strictly.
- A buyer’s ongoing, repeat purchases of the same product do not reset or extend the § 100.18 limitations period; the clock starts when the original inducing misrepresentation was made, not each time the buyer reorders.
- A subsequent communication from a seller concerning a different product does not establish reliance sufficient to anchor a § 100.18 claim if the plaintiff never purchased that product.
- Appellate courts may affirm summary judgment on any ground supported by the record, even one not reached by the circuit court — meaning alternative defenses raised but not decided below remain live on appeal.
Why It Matters
This decision is a practical reminder to plaintiffs’ counsel in Wisconsin commercial disputes that § 100.18 is not tolled by the discovery rule — a buyer who suspects a seller’s representations were false must act within three years of those representations or lose the claim entirely, regardless of when the resulting product failures manifest. For defendants, the case confirms that aggressively raising the statute of repose at the summary judgment stage can be dispositive even after an adverse supreme court ruling on pleading standards.
The ruling also clarifies that serial purchase relationships do not create a rolling series of new misrepresentation claims. Companies that sell recurring-use consumables should take note: so long as the original inducing representation is more than three years old, subsequent sales of the same product under the same representations will not revive an otherwise stale § 100.18 claim under Wisconsin law.