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COURT OF APPEALS DECISION DATED AND RELEASED July 9, 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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2232
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
BERSCH & COMPANY,
S.C.,
Plaintiff-Appellant,
v.
DAIRYLAND GREYHOUND,
INC.,
Defendant,
HAROLD W. RIPPS and
FRANCIS R. CROAK,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JOHN B. DANFORTH, Reserve Judge.
Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER
CURIAM. Bersch & Company, S.C., an accounting firm,
appeals from summary judgment dismissing its complaint against Harold W. Ripps,
an officer of Dairyland Greyhound Park, Inc., and Francis R. Croak, an outside
attorney for Dairyland.[1] We affirm.
This case was here once
before. See Bersch &
Company, S.C. v. Dairyland Greyhound Park, Inc., No. 92-2288, 1994 WL
185996, unpublished slip op. (Wis Ct. App. May 17, 1994). As we noted in that decision, Bersch &
Company alleges that it helped Dairyland get its dog-racing-track license, and,
essentially in return for that help, was promised auditing work if the track
was licensed. See ch. 562, Stats.
Bersch & Company claims that Dairyland breached several alleged
contracts, agreements and prospective business relationships, and that Ripps
and Croak tortiously interfered with Bersch & Company's alleged rights vis
a vis those contracts, agreements and alleged prospective business
relationships. In Bersch &
Company, S.C., No. 92-2288, we reversed the trial court's judgment
dismissing Bersch & Company's complaint, and noted that the decision left
unresolved the question of whether Bersch & Company's
tortious-interference-with-contract claims were affected by § 562.02(1)(d), Stats., and the rules promulgated
thereunder. See Bersch
& Company, S.C., No. 92-2288, 1994 WL 185996 at ***13 n.7,
unpublished slip op. at 20 n.7. We
resolve that question now.
Summary judgment is used
to determine whether there are any disputed issues for trial. U.S. Oil Co., Inc. v. Midwest Auto
Care Services Inc., 150 Wis.2d 80, 86, 440 N.W.2d 825, 827 (Ct. App.
1989). Appellate courts and trial
courts follow the same methodology. Green
Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820
(1987). First, the pleadings are
examined to determine whether the complaint states a claim for relief. Id. In this case, we have already determined that Bersch &
Company's complaint passed muster. Bersch
& Company, S.C., No. 92-2288, 1994 WL 185996, unpublished slip
op. The second stage of the
summary-judgment analysis is to examine the depositions, answers to
interrogatories, admissions on file, and affidavits, if any. Green Spring Farms, 136 Wis.2d
at 315, 401 N.W.2d at 820. If these do
not indicate that there is a genuine issue of material fact, and if the moving
party is entitled to judgment as a matter of law, summary judgment must be
entered. Rule 802.08(2), Stats. “[I]t is the burden of the party asserting a
claim on which it bears the burden of proof at trial `to make a showing
sufficient to establish the existence of an element essential to that party's
case.'” Transportation Ins. Co.
v. Hunzinger Constr. Co., 179 Wis.2d 281, 291–292, 507 N.W.2d 136, 140
(Ct. App. 1993) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986)).
Here, rather than submit
evidentiary material in the usual form, such as affidavits and deposition
transcripts, Bersch & Company has submitted a three-paragraph affidavit by
Dennis Bersch, whom the affidavit describes as “agent for the plaintiff, Bersch
& Company, S.C.” Bersch's affidavit
attests that he has “personal knowledge of all the facts set forth in this affidavit,”
and that the “factual allegations” in paragraphs 1, 2, 5, 8–14, and 16–62 of
the complaint “are true and correct to the best of my knowledge and belief.”
As we noted in our
earlier decision in this case:
A
claim for intentional interference with a contract must allege that: (1) the plaintiff had a contract or
prospective contractual relationship with a third party; (2) the defendant
interfered with the relationship; (3) the interference was intentional; (4) a
causal connection exists between the interference and the damages; and (5) the
defendant was not justified or privileged to interfere.
Bersch
& Company, S.C., No. 92-2288, 1994 WL 185996 at ***9,
unpublished slip op. at 22 (citing Cudd v. Crownhart, 122 Wis.2d
656, 659–660, 364 N.W.2d 158, 160 (Ct. App. 1985)). The underlying “contract” or business relationship must not,
however, be against public policy. Behnke
v. Hertz Corp., 70 Wis.2d 818, 824, 235 N.W.2d 690, 694 (1975); Restatement (Second) of Torts § 774
(1977).
Section 562.02(1)(d), Stats. (1989-90), directed the
then-existing Racing Board to: “Require
by rule that any contract in excess of $10,000 for the provision of goods and
services ... entered into by any [dog racing] licensee, be subject to the
approval of the board and that all contracts for $10,000 or less shall be filed
with the board.”[2] Pursuant to this direction, the following
rule was promulgated:
Any contract in excess of $10,000 for any goods
or services or both shall be subject to approval by the board and submitted to
the board by the licensee. Such
contract shall not, as a matter of public policy, become effective and binding
on the parties to the contract unless and until it has been approved by the
board. Any contract not so approved
shall be considered void as against public policy.
Former
Wis. Adm. Code § Race 4.05(2)(a).[3] Briefs submitted by both Ripps and Croak
argue, with supporting references to evidentiary material in the record, that
none of the alleged contracts, agreements, or prospective business
relationships that underlie Bersch & Company's
tortious-interference-with-contract claims complied with Wis. Adm. Code § Race 4.05. Further, Dairyland's license required that
summaries of all oral agreements by Dairyland be submitted to the then Racing
Board. No oral contracts at issue here
were so disclosed. Bersch &
Company's reply brief does not dispute any of this. Accordingly, the factual bases underlying Ripps's and Croak's
arguments are admitted. See Charolais
Breeding Ranches, Ltd. v. FPC Securities Corp., 90 Wis.2d 97, 109, 279
N.W.2d 493, 499 (Ct. App. 1979) (arguments that are not refuted are deemed to
be admitted). Bersch & Company
does, however, argue in reply, in cursory fashion without citation to any
authority or citation to the record:
(1) that the viability of its tortious-interference-with-contract claims
does not depend on whether the underlying contracts or agreements complied with
Wis. Adm. Code § Race 4.05; and
(2) that the failure by Dairyland to have the various alleged underlying
agreements, contracts, or prospective business relationships comply with Wis. Adm. Code § Race 4.05 is further
evidence of Ripps's and Croak's nefarious interference with Bersch &
Company's rights. Arguments in
appellate briefs must be supported by authority and references to the record, Rule 809.19(1)(e) & (3)(a), Stats., and we need not consider
arguments that do not comply, Murphy v. Droessler, 188 Wis.2d
420, 432, 525 N.W.2d 117, 122 (Ct. App. 1994).
We will not develop Bersch & Company's argument for it. See Barakat v. DHSS,
191 Wis.2d 769, 786, 530 N.W.2d 392, 398 (Ct. App. 1995) (appellate court need
not consider “amorphous and insufficiently developed” arguments). Moreover, the short affidavit submitted by
Bersch does not reference any evidentiary material in support of his contention
that Ripps and Croak deliberately saw to it that Bersch & Company's alleged
contracts, agreements, and business relationships did not comply with Wis. Adm. Code § Race 4.05. Accordingly, Bersch & Company has not
satisfied its burden to demonstrate that there are genuine issues of material
fact that require a trial. See Transportation
Ins. Co., 179 Wis.2d at 292, 507 N.W.2d at 140.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] The trial court also dismissed all claims against Dairyland Greyhound Park, Inc., except Bersch & Company's claim for a quantum meruit recovery. Dairyland is not a party to this appeal.