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COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER 5, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1145-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
DEBORAH A. BUSS,
Plaintiff-Appellant,
v.
CLIFFORD E. ROSENOW
and
ALICE ROSENOW, his
wife,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Shawano County:
THOMAS G. GROVER, Judge. Reversed
and cause remanded.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Deborah Buss appeals a summary judgment
dismissing her unjust enrichment and misrepresentation claims against Clifford
and Alice Rosenow as time barred under the doctrine of laches as well as under
a six-year statute of limitations.[1] Because issues of fact exist with respect to
the date that Buss's claims accrued, we reverse the summary judgment and remand
for further proceedings.
On July 10, 1995, Buss
filed her complaint against the Rosenows, the parents of her late husband,
Randall Rosenow. The complaint alleges
that the Rosenows own and operate a large dairy farm where Randall worked. Randall and Buss were married in 1975, and
together with their three children lived in a house on the Rosenow farm. In 1986, the house was partially destroyed
by fire and was later demolished.
The complaint alleges
that in 1987, Buss and Randall built a new house where the old one stood. It alleges that the Rosenows contributed
proceeds from their fire insurance policy and Buss contributed approximately
$28,000 to help pay for the construction.
When the house was being built, Buss asked the Rosenows for a deed to
the one-acre parcel on which the house stood.
The complaint further alleges that
the
Defendant, Clifford E. Rosenow, stated to the Plaintiff that it would not be
necessary, nor would it be in any of the party's (sic) best interests, for real
estate tax reasons, for the Defendant to give a deed to the Plaintiff and
Randall.
In
1994, Randall died and subsequently the Rosenows denied Buss access to the
house.
Buss pled four theories
of recovery: unjust enrichment, intentional misrepresentation, strict
responsibility misrepresentation and negligent misrepresentation. The Rosenows answered, denying Buss's
contributions and also denying that she had requested a deed or that Clifford
ever made the alleged statement. They
further alleged that in 1993, Buss had moved out of the home voluntarily when
she and Randall were in the process of divorce.
The Rosenows admitted
that they were living in the home, but alleged that after Randall's death, they
permitted Buss access to remove her stored belongings. The answer raised several affirmative
defenses, including the statute of limitations. The Rosenows moved to dismiss relying on the expiration of the
six-year statute of limitation for contract actions, § 893.43, Stats.
The trial court treated
the motion as one for summary judgment and agreed that the six-year statute of
limitation, as well as laches, barred her claim.[2] The court concluded that Buss "knew
since 1988 (and perhaps before) that the defendants did not intend to give a
deed to the property to the plaintiff."
It also concluded that "[t]he plaintiff certainly cannot claim that
there was any justifiable reliance after that point and they had to know that
they were not going to be reimbursed for any contribution they made to they
(sic) house." The court entered an
order of dismissal.
When reviewing summary judgment, we apply the
standard set forth in § 802.08(2), Stats.,
in the same manner as the circuit court.
Kreinz v. NDII Secs. Corp., 138 Wis.2d 204, 209, 406 N.W.2d 164, 166 (Ct. App. 1987). Summary judgment is appropriate when
material facts are undisputed and when inferences that may be reasonably drawn
from the facts are not doubtful and lead only to one conclusion. Radlein v. Industrial Fire & Cas.
Ins. Co., 117 Wis.2d 605, 609, 345 N.W.2d 874, 877 (1984). The court does not make findings of fact on
summary judgment, but determines whether material facts are disputed. State Bank of La Crosse v. Elsen,
128 Wis.2d 508, 515-16, 383 N.W.2d 916, 919 (Ct. App. 1986).
Buss argues that the
trial court erroneously determined as a matter of law that her claim accrued in
1988. We agree. "It is well settled that a cause of
action accrues when there exists a claim capable of enforcement, a suitable
party against whom it may be enforced, and a party with a present right to
enforce it." Pritzlaff v.
Archdiocese of Milwaukee, 194 Wis.2d 302, 315, 533 N.W.2d 780, 785
(1995). A party has a present right to
enforce a claim when the plaintiff has suffered actual damage, defined as harm
that has already occurred or is reasonably certain to occur in the future. Id. "[U]ntil the plaintiff discovers or with reasonable
diligence should have discovered that he or she has suffered actual damage due
to wrongs committed by a particular, identified person," the statute of
limitations is tolled. Id. "Generally, the 'date of discovery' is
a question of fact for the jury." Stroh
Die Casting Co. v. Monsanto Co., 177 Wis.2d 91, 104, 502 N.W.2d 132,
137 (Ct. App. 1993).
We conclude that the
record is insufficient to support the legal conclusion that the statute of
limitations was triggered in 1988. In
1988, Buss and her late husband were in the process of building the home on the
Rosenow farm. Buss and Randall
continued to live together on the property until 1993. Although Buss alleged that the Rosenows
declined to deed them the property at that time, a variety of inferences can be
drawn from that alleged conversation.
As Buss points out, the conversation could be interpreted to recognize
her interest in the property, because the reason given was not that she had
made no contribution, but that all parties would save real estate taxes by not
dividing the land.[3]
Buss also contends that her conversation
with Clifford was not about reimbursement for money invested in the property,
but only about a deed to the real estate.
She claims that the record fails to demonstrate that the Rosenows ever
said or did anything to notify her that she would eventually be denied use of
the home or reimbursement for her contribution. This is a reasonable inference.
Because Buss lived in the home until 1993, she had use of her financial
contributions until that time. She was
not denied access to the property until some time after her husband's death in
1994. Cf. Watts v. Watts,
152 Wis.2d 370, 384, 448 N.W.2d 292, 298 (Ct. App. 1989) (In a claim based upon
unjust enrichment between cohabitants, "termination of the relationship
without disgorgement of the benefit conferred and improperly retained is
the injury ....").
We conclude that Buss's
alleged 1988 conversation with Clifford was too ambiguous to find as a matter
of law that it notified Buss of her economic injury. Therefore, the trial court erroneously concluded that laches and
the six-year statute of limitations barred her claim.
While the parties'
briefs agree that the dispositive issue is the determination of the date of
Buss's injury, their briefs also suggest that Wisconsin case law provides no
firm guidance on the question whether the doctrine of laches, and not a statute
of limitations, applies to Buss's unjust equitable enrichment claim. We agree that conflicting case law exists,
but because no date of injury has been yet determined, the resolution of this
conflict is not required at this juncture.
Cf. Watts, 152 Wis.2d at 383 n.10, 448 N.W.2d at
297 n.10 (actions at law are governed by statutes of limitations and actions in
equity are governed by considerations of laches) and Meyer v. Ludwig,
65 Wis.2d 280, 290 n.18, 222 N.W.2d 679, 684 n.18 (1974) (citing In re
Estate of Demos, 50 Wis.2d 262, 269, 184 N.W.2d 117, 121 (1971))
("It is well established that provisions limiting the time in which an
action may be brought are applicable to suits seeking equitable as well as
legal remedies ....").[4]
Also, in Boldt v.
State, 101 Wis.2d 566, 578, 305 N.W.2d 133, 141 (1981), our supreme
court stated: "As a claim based on quasi-contract, Boldt's lawsuit was
subject to the six-year statute of limitations of sec. 893.19(3), Stats., [1977]."[5] Courts have applied both a doctrine of
laches, as well as a statute of limitations, to the same claim. See Schafer v. Wegner,
78 Wis.2d 127, 254 N.W.2d 193 (1977).
However, we do not resolve this conflicting case law because the date
that Buss's claim accrued is not yet determined. If the date her claim accrued is found to be less than six years
before her filing, the issue is immaterial.
Finally, Buss argues
that the Rosenows are estopped from enforcing a statute of limitation based
upon Clifford's allegedly misleading comment.
Because this issue is nondispositive, we address it only to say that here
it involves factual determinations inappropriate for summary judgment.
By the Court.—Judgment
reversed and cause remanded.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.
[2] A motion to dismiss may be treated as a motion for summary judgment when the trial court considers matters outside the pleadings. Section 802.06(3), Stats.
[4] In Meyer v. Ludwig, 65 Wis.2d 280, 222 N.W.2d 679 (1974), a case containing remarkable parallels, the court prevented unjust enrichment by imposing a constructive trust on a house rebuilt after a fire by a daughter with her own funds and her mother's insurance proceeds, on land owned by her mother. The court concluded that § 893.18(4), Stats., 1969, a 10-year statute of limitation, applied. Id. at 290, 222 N.W.2d at 684. ("Within 10 years: ... (4) An action which, on and before February 28, 1857, was cognizable by the court of chancery, when no other limitation is prescribed in this chapter.").