¶ 64. (concurring). I agree with the majority and with Justice Crooks' discussion of Estate of Makos v. Wisconsin Masons Health Care Fund, 211 Wis. 2d 41, 564 N.W.2d 662 (1997). I write separately to respond to part of the Chief Justice's dissenting opinion. The Chief Justice argues that the majority holding "that the judicially-created Hansen discovery rule cannot be applied to a statute of repose" is inconsistent with the plurality opinion in Makos, 211 Wis. 2d at 564 (Steinmetz, J., plurality opinion). Dissent at 286.1 disagree.
¶ 65. In Makos, the plurality opinion concluded that, as applied to the facts of that case, the statute of repose in Wis. Stat. § 893.55(l)(b) violated Wis. Const, art. I, § 9 where it "closed the doors of the courtroom" before the plaintiff discovered or could have discovered the alleged negligence of the doctor who misdiagnosed her condition. See Makos, 211 Wis. 2d at 49, 54 (Steinmetz, J.). The issue whether the Hansen discovery rule applies to statutes of repose was not addressed in Makos. In this case, the Tomczaks concede that they discovered their encroachment on the Andersens' property prior to the running of the time limit in Wis. Stat. § 893.37. Thus, unlike in Makos, the statute of repose in this case did not bar the Tomczaks' claim before they discovered their injury. As applied to the facts here presented, the statute of repose, therefore, is not *277unconstitutional under art. I, § 9. See majority op. at 263. In its application of art. I, § 9, the holding in this case is not inconsistent with the plurality opinion in Makos.
¶ 66. The Chief Justice confuses the judicially created Hansen discovery rule with the application of art. I, § 9. In nature and application, the two concepts are entirely different. In Hansen v. A.H. Robins, Inc., 113 Wis. 2d 550, 335 N.W.2d 578 (1993), this court concluded that where a statute of limitations does not set the time at which a plaintiffs claim "accrues," the court retains the authority to do so. See id. at 560. The court then held that "[i]n the interest of justice and fundamental fairness, we adopt the discovery rule for all tort actions other than those already governed by a legislatively created discovery rule." Id. (emphasis added). Simply stated, the Hansen discovery rule sets the time that a cause of action accrues under a statute of limitations, unless the statute already expressly provides the time of accrual. Since by definition a statute of repose cuts off a right of action regardless of the time of accrual, see Makos, 211 Wis. 2d at 51 n.8 (quoting Black's Law Dictionary 1411 (6th ed. 1990)), the Hansen discovery rule cannot apply to a statute of repose.
¶ 67. Article I, § 9, on the other hand, guarantees that every person shall be afforded a remedy for wrongs committed against his or her "person, property or character." "This court has long held that the 'certain remedy' clause of this provision, while not guaranteeing to litigants the exact remedy they desire, entitles Wisconsin residents 'to their day in court.'" Makos, 211 Wis. 2d at 52 (Steinmetz, J.) (quoting Metzger v. Department of Taxation, 35 Wis. 2d 119, 129, 150 N.W.2d 431 (1967)). In contrast to the Hansen discovery rule, which in effect sets the time at which tort *278statutes of limitations begin to run,1 art. I § 9, as applied here and in Makos, bars the application of a statute of repose only when that statute has closed the courtroom doors before a plaintiff discovered or could have discovered his or her injury.
¶ 68. Although application of art. I, § 9 in cases such as Makos and this case is driven by determining whether the plaintiff discovered his or her injury before the running of the statute of repose, the practical effect of applying art. I, § 9 is far different from that of the Hansen discovery rule. The fundamental distinction in the application of these two legal concepts is simple to illustrate.
¶ 69. If the court were to apply the Hansen discovery rule to the statute of repose in Wis. Stat. § 893.37, every plaintiff bringing a claim against a surveyor would have six years from the day he or she discovers his or her injury, rather than from the day the survey was completed, to file an action against the surveyor. As explained by the majority, the court in effect would be rewriting the statute of repose in Wis. Stat. § 893.37 as a statute of limitations and then setting in all cases the day of discovery as the time of accrual. Under the Hansen discovery rule, the Tomczaks would not be barred from bringing their claim because they filed their action within six years after they discovered their injury. Since the Hansen discovery rule does not apply, however, the Tomczaks' claim is barred by Wis. Stat. § 893.37 because they filed their claim "more than 6 years after the completion of the survey." Wis. Stat. § 893.37.
*279¶ 70. In contrast, application of the guarantees in art. I, § 9 to a statute of repose turns on the facts of a particular case and does not affect that statute of repose as applied in other cases. For example, although the statute of repose in Wis. Stat. § 893.55(1) was found unconstitutional as applied to the facts in Makos, that statute continues to bar actions commenced outside its five-year time period where the plaintiffs discover their injuries prior to the running of the statute. In this case, the guarantees of art. I, § 9 will not save the Tomczaks' claim because, unlike the plaintiff in Makos, they discovered their injury prior to the running of the statute of repose. At the time of discovery, the courtroom doors had not been closed to the Tomczaks. Section 893.37, therefore, did not deny the Tomczaks their day in court.
¶ 71. The holding of the court in this case is not inconsistent with the plurality opinion in Makos.