COURT OF APPEALS DECISION DATED AND FILED October 8, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before Brown, C.J., Snyder and Neubauer, JJ.
¶1 PER CURIAM. Bruce and Tracie Black, doing business as Westside Auto Center, LLC (the Blacks), appeal from an order dismissing their complaint against Tim Bach alleging breach of contract and negligence in the construction of a commercial building. They argue that Bach’s motion for summary judgment was untimely and issue preclusion does not apply. We affirm the order of the circuit court.
¶2 The Blacks’ complaint alleges that the defendants, Bach and Kahl Construction, Inc., breached a construction contract by failing to build in accordance with subsoil conditions, industry standards and warranties, and were negligent in failing to provide a stabilized foundation. Partial summary judgment was granted dismissing the complaint against Bach because he was an agent of Kahl Construction. This court reversed that judgment concluding that a material issue of fact existed as to whether the Blacks had actual or constructive notice that Bach was acting as an agent for a corporate entity. Black v. Bach, 2005AP3010, unpublished slip op. at ¶9 (Wis. Ct. App. Jan. 10, 2007). While the appeal was pending, on November 30, 2006, the Blacks’ complaint against Kahl Construction was dismissed on summary judgment because the Blacks could not establish causation or the standard of professional care.[1] That decision was not appealed. On January 26, 2007, following this court’s remand, Bach moved for dismissal on the ground that it was already determined that the Blacks are unable to establish causation and liability. The motion was granted and the Blacks appeal.
¶3 The Blacks first argue that Bach’s post-remand motion for
summary judgment was “illegal,” because it was filed more than eight months
after the commencement of the action. See
Wis. Stat. § 802.08(1)
(2005-06) (“A party may, within 8 months of the filing of a summons and
complaint or within the time set in a scheduling order under s. 802.10, move
for summary judgment on any claim ….”).[2] It is sufficient to note that “the
eight-month deadline is not an inflexible rule that the trial courts must
blindly apply.” Lentz v. Young, 195
¶4 Here the litigation against Bach was revived by this court’s
reversal in the appeal. The motion for
summary judgment came on the heels of that reversal and when the litigation was
fresh. The purpose of the eight-month
time limit is to prevent parties from using a motion for summary judgment for
delay. Lentz, 195
¶5 We review the circuit court’s grant of summary judgment using
the same methodology as the circuit court.
City
of Beaver Dam v. Cromheecke, 222
Wis. 2d 608,
613,
587
N.W.2d 923
(Ct.
App. 1998). There is no need to repeat the well-known
methodology; the controlling principal is that when there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of
law, summary judgment is appropriate.
¶6 The first step of the summary judgment methodology is to
examine the pleadings. The Blacks’
complaint makes no separate claims against Bach. The complaint does not allege that Bach acted
as anything other than an agent of the corporation. See Black, 2005AP3010, slip
op. at ¶3 (“It is undisputed that Bach is an agent of Kahl Construction,
Inc.”) It alleges that the defendants,
Bach and Kahl Construction, breached the construction contract and were
negligent.[3] The circuit court has determined that the
Blacks cannot establish their claims.
Thus, even if Bach is personally liable under the contract because his
agency was undisclosed or only partially disclosed, see Benjamin Plumbing, Inc. v. Barnes, 162
¶7 Dismissal of Bach flows from the application of issue
preclusion. “[I]ssue preclusion is the
appropriate term of art to use when, as here, one party seeks to bar another
from rearguing a prior adjudication in the same lawsuit.” Precision Erecting, Inc. v. M&I Marshall
& Ilsley Bank, 224
¶8 Whether issue preclusion applies in a particular case is one
committed to the discretion of the circuit court. Precision Erecting, 224
(1) could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment;
(2) is the question one of law that involves two distinct claims or intervening contextual shifts in the law;
(3) do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue;
(4) have the burdens of persuasion shifted such that a party seeking preclusion had a lower burden of persuasion in the first trial than in the second; or
(5) are matters of public policy and individual circumstances involved that would render the application of collateral estoppel to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action?
¶9 The circuit court observed that the Blacks could have but did not appeal the determination that they could not establish their breach of contract and negligence claims. It also observed that Bach and Kahl Construction are intimately connected with respect to the theories of liability and applicable standards of care. Indeed, the case proceeded against both defendants together. Experts were named and the time for naming experts closed before Bach was first dismissed from the action. The circuit court determined that the Blacks, unable to prove their claims against Kahl Construction, should not be given a second opportunity to prove the same claims against Bach. Implicit is the determination that it is not fundamentally unfair to apply issue preclusion. The first appeal and passage of time should not provide the Blacks the opportunity to bolster a case that could not survive summary judgment.
A court cannot adjudge the facts to be one way with regard to some parties to a multiparty claim and adjudge the same factual dispute another way as to other parties in the same action. That would be absurd. There can be only one finding of each historical fact per case. That the facts might be determined as a result of summary judgment is not material.
¶10 Landess
v. Schmidt, 115
¶11 Landess was a milk hauler and Borden Inc. ceased accepting milk
delivered by Landess.
If two persons have a relationship such that one of them is vicariously responsible for the conduct of the other, and an action is brought by the injured person against one of them, the judgment in the action has the following preclusive effects against the injured person in a subsequent action against the other.
(1) A judgment against the injured person that bars him from reasserting his claim against the defendant in the first action extinguishes any claim he has against the other person responsible for the conduct unless:
(a) The claim asserted in the second action is based upon grounds that could not have been asserted against the defendant in the first action; or
(b) The judgment in the first action was based on a defense that was personal to the defendant in the first action.
Landess, 115
¶12 Bach, as employee of Kahl Construction, like the Borden employees, is only liable as an agent of Kahl Construction. Neither exception recognized in the Restatement (Second) Judgments § 51(1)(a) or (b) applies. Because Kahl Construction is not liable to the Blacks, it follows that Bach is not liable to the Blacks.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] After the time for naming expert witnesses and providing their reports was closed, Kahl Construction moved for summary judgment. The circuit court noted that there was no expert opinion with respect to causation and concluded that the Blacks could not establish the applicable professional standard. It held:
Plaintiff’s causes of action, whether in contract or tort, depend on expert testimony to establish industry standards, whether the work was done in a workmanlike manner and whether Kahl Construction Inc. properly exercised the professional skill required of engineers under these circumstances. To the extent these claims require proof of causation, no expert witness has timely rendered that opinion.
The circuit court also determined that the economic loss doctrine applies to bar the Blacks’ negligence claim.
[2] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[3] The
Blacks characterize their complaint as alleging that Bach, as an individual,
performed design and engineering services.
Even a liberal reading of the complaint will not permit that
interpretation. See Midway Motor Lodge v. Hartford Ins.
Group, 226
[4] We reject the Blacks’ contention that dismissal of their complaint against Bach is an affront to this court’s mandate on remand. It is no longer necessary to resolve the factual dispute of whether Bach’s status as an agent was disclosed or only partially disclosed.