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COURT OF APPEALS DECISION DATED AND RELEASED JULY 5, 1995 |
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. 94-2399
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
REALTY WORLD-FIRST
SECURITY GROUP, INC.,
Plaintiff-Respondent,
v.
WAGNER & HOPKINS,
INC.,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Eau Claire County:
GREGORY A. PETERSON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Wagner & Hopkins, Inc., appeals a
judgment dismissing its counterclaim against Realty World for negligence in its
handling of a real estate transaction.
The court allowed Wagner & Hopkins to file a counterclaim against
Realty World in Realty World's action to recover a commission, but denied Wagner
& Hopkins' motion to commence a third-party action against Realty World's
employee, Donald Engum. Wagner &
Hopkins then filed a separate third-party action against Engum and sought
consolidation of the two actions. The
trial court denied that motion. The
court found that Wagner & Hopkins owed a commission to Realty World and
that Realty World was negligent in its handling of the transaction. The court offset the damages and dismissed
the complaint and counterclaim. Wagner
& Hopkins argues that the court erroneously exercised its discretion when
it refused to allow the filing of a third-party negligence action against Engum
and when it refused to consolidate the two actions. Because we conclude that the court properly exercised its
discretion and Wagner & Hopkins was not prejudiced by these decisions, we
affirm the judgment.
The trial court properly
exercised its discretion when it denied Wagner & Hopkins' motion to amend
the pleadings to commence a third-party action against Engum. The trial court's discretionary decision
must be upheld if there exists a reasonable basis for its ruling. Howard v. Duersten, 81 Wis.2d
301, 305, 260 N.W.2d 274, 276 (1977).
Under the doctrine of respondeat superior, Engum's tortious
conduct was attributable to Realty World.
Pamperin v. Trinity Memorial Hosp., 144 Wis.2d 188, 198,
423 N.W.2d 848, 852 (1988). Engum's
negligence, as imputed to Realty World, was already before the court. The court properly refused to allow
amendment of the pleadings to implead a superfluous party, especially under
circumstances where that party's attorney had not participated in the first
half of the trial and the second half might have to be delayed.
The trial court also
properly exercised its discretion when it denied Wagner & Hopkins' motion
to consolidate the two actions once it brought its separate action against
Engum. In addition to claiming
negligence against Engum personally, the second action named Arthur and Chester
Wagner as plaintiffs and alleged new causes of action for misrepresentation,
unjust enrichment and intentional infliction of emotional distress. Consolidation of these additional claims by
and against new parties substantially added to the complexity of the underlying
case and would have forced an adjournment of the scheduled trial date to allow
additional time for discovery and attorney preparation.
Furthermore, Wagner
& Hopkins has not established any prejudice from the trial court's refusal
to allow the third party action or consolidation. Wagner & Hopkins and Chester and Arthur Wagner filed their action
against Engum and had their day in court.
Contrary to their assertions on appeal, they were not left without a
forum in which to litigate their claims.
We reject their argument that they were caught in a "procedural
nightmare" because Judge Peterson would not allow the third‑party
complaint or consolidation and Judge Barland granted summary judgment in the
separate case they commenced.[1] Because Wagner & Hopkins had received
damages for Engum's negligence in the Realty World action, it had no legitimate
separate claim remaining against Engum.
Therefore, the action would have been properly dismissed regardless of
whether it was a third-party complaint and regardless of which court heard the
action.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.