Baumeister v. Automated Products, Inc.

• Citation: 690 N.W.2d 1,2004 WI 148,277 Wis.2d 21
• Decision Date: 15 December 2004
• Docket Number: No. 02-1003.,02-1003.
• Parties: Bryan BAUMEISTER, Robin Baumeister, Jeffrey Brown and Stacy Brown, Plaintiffs-Appellants-Petitioners, HERITAGE MUTUAL INSURANCE COMPANY, Subrogated-Plaintiff, v. AUTOMATED PRODUCTS, INC., Defendant, Edward A. SOLNER AIA d/b/a Solner and Associates, Defendant-Respondent-Petitioner.
• Court: United States State Supreme Court of Wisconsin

277 Wis.2d 21

2004 WI 148

690 N.W.2d 1

Bryan BAUMEISTER, Robin Baumeister, Jeffrey Brown and Stacy Brown, Plaintiffs-Appellants-Petitioners, HERITAGE MUTUAL INSURANCE COMPANY, Subrogated-Plaintiff, v. AUTOMATED PRODUCTS, INC., Defendant, Edward A. SOLNER AIA d/b/a Solner and Associates, Defendant-Respondent-Petitioner.

No. 02-1003.

Supreme Court of Wisconsin.

Oral argument September 10, 2004.

Decided December 15, 2004.

For the plaintiffs-appellants-petitioners there were briefs by Christopher D. Stombaugh, Sheila Stuart Kelley and Kopp, McKichan, Geyer, Skemp & Stombaugh, LLP, Platteville, and oral argument by Christopher D. Stombaugh.

For the defendant-respondent-petitioner there were briefs by Anthony R. Varda and DeWitt Ross & Stevens, S.C., Madison, and oral argument by Anthony R. Varda.

An amicus curiae brief was filed by Lynn R. Laufenberg and Laufenberg & Hoefle, S.C., Milwaukee, on behalf of the Wisconsin Academy of Trial Laywers, and oral argument by Lynn R. Laufenberg.

¶1. N. PATRICK CROOKS, J

This case is before the court on two petitions seeking review of an unpublished decision of the court of appeals, Baumeister v. Automated Products, Inc., No. 02-1003, unpublished slip. op. (Wis. Ct. App. Nov. 20, 2003). The first petition, filed by Bryan Baumeister, Robin Baumeister, Jeffrey Brown, and Stacy Brown (Baumeister and Brown), requests review of a portion of the court of appeals' decision which affirmed the entry of summary judgment in favor of the defendant, Edward Solner (Solner). Solner filed the second petition and asks this court to overturn the portion of the court of appeals' decision that denied his motion for costs, fees, and reasonable attorney fees.

¶ 2. We affirm the court of appeals and hold that summary judgment was appropriately granted in favor of Solner. We find that there were no genuine issues of material fact presented by Baumeister and Brown to rebut the affidavits presented, and, thus, the prima facie case established, by Solner. We further hold that the court of appeals was correct when it denied Solner's motion for costs, fees, and reasonable attorney fees, pursuant to Wis. Stat. § (Rule) 809.25(3) (2001-02).¹ In order to succeed on this motion, Solner needed to establish that the entire appeal of the order for summary judgment lacked arguable merit. We conclude that Baumeister and Brown's claim that Solner breached his duty of care had arguable merit, and, therefore, cannot be construed as frivolous.

I

¶ 3. On November 12, 1994, Holy Trinity Lutheran Church (Holy Trinity) retained Edward Solner, an architect licensed in Wisconsin, to design its new church. Solner entered into a contract with Holy Trinity pursuant to the Standard Form of Agreement Between Owner and Architect, AIA Document B141 (1987 ed.), which contained the language from Sections 2.6.5² and 2.6.6.³ Holy Trinity had the option to extend Solner's project responsibilities beyond the services listed in the contract, but chose not to do so.

¶ 4. Holy Trinity hired Roberts Construction Associates, Inc. (Roberts), as the general contractor, pursuant to a Standard Form of Agreement Between Owner and Contractor, AIA Document A101 and 201 (1987 ed.). This contract specified, among other things, that both Roberts and its subcontractors must follow certain requirements related to truss installation: (1) comply with recommendations of TPI (Truss Plate Institute) design specifications for metal plate connected wood trusses and the State of Wisconsin Code requirements; and (2) install materials and systems in accordance with manufacturers' instructions and approved submittals.

¶ 5. Solner completed his plans of the new church and then designed "contract specifications" for the wood trusses to be placed above the main assembly area. Meanwhile, Roberts hired Automated Products, Inc. (Automated) to provide the fabricated wood trusses. An engineer from Automated, Gary Korpela, designed the trusses and their layout to meet the "contract specifications." Automated then shipped the trusses to the construction site and attached instructions: "The Builder shall be responsible for proper truss handling and bracing. A guide for the qualified Builder may be but is not limited to: `Handling and Erecting Wood Trusses' by TPI, Inc." ¶ 6. Baumeister and Brown were construction workers on the site. They were employed by Diamond Builders, a subcontractor of Roberts. On October 16, 1997, Baumeister and Brown were seriously injured during the erection of the wood trusses. It has been established that the TPI guidelines were not followed during the installation of the trusses.⁴

¶ 7. The insurance company for Holy Trinity, General Casualty Company, subsequently brought a subrogation claim against Diamond Builders in September, 1999. General Casualty sought to recover the cost of the collapsed trusses and the cost for the cleanup, which it had paid to Holy Trinity after the accident. The complaint alleged negligent installation of temporary bracing of the wood trusses.

¶ 8. Baumeister and Brown moved to intervene pursuant to Wis. Stat. § 803.09(1). On August 14, 2000, the circuit court issued an order permitting intervention. Baumeister and Brown then filed a cross-complaint against Solner and the truss manufacturer, Automated. Among other things, they claimed that their injuries were caused by the negligence of Solner. Solner filed a motion for summary judgment on April 16, 2001. The circuit court denied the motion. On November 27, 2001, Solner filed a motion to vacate and a motion for reconsideration. The circuit court heard oral arguments and granted Solner's motion for summary judgment. The Dane County Circuit Court, Judge Richard J. Callaway presiding, determined that Baumeister and Brown had failed to follow the TPI guidelines, and that Solner had no duty to supervise the installation of the trusses at the construction site. As a result, the circuit court ordered that all claims against Solner were dismissed. Solner then filed a motion for attorney fees. He claimed that Baumeister and Brown failed to make an adequate investigation and maintained a frivolous action. The case was appealed before the circuit court ruled on that issue.

¶ 9. The court of appeals unanimously affirmed the circuit court's grant of summary judgment. Judge Lundsten, writing for the majority on that matter, held that Baumeister and Brown were unable to show that Solner's duty of care included supervising personally the construction site, assuring safe construction, or providing safe temporary truss bracing instructions. Moreover, the court of appeals found that Baumeister and Brown would not have been able to satisfy the causation requirement for a claim of negligence, since they, themselves, did not follow the TPI guidelines and, thus, could not show that Solner was negligent in directing that those guidelines be followed. Such alleged negligence could not, therefore, have been a substantial factor in producing their injuries. Baumeister, No. 02-1003, unpublished slip. op., ¶ 32.

¶ 10. The issue of the frivolous appeal resulted in a split decision. Judge Deininger wrote a concurrence joined by Judge Vergeront. The majority of the court of appeals concluded that Solner was not entitled to costs, fees, and reasonable attorney fees under Wis. Stat. § (Rule) 809.25(3). It further held that, in order to grant a motion under § (Rule) 809.25(3), the entire appeal must be frivolous, and that not all of the arguments raised on appeal here were completely void of arguable merit.

II

¶ 11. We first address whether summary judgment was appropriately granted. Although benefiting by the review of the circuit court and the court of appeals, we review an order for summary judgment de novo, applying the same standards as used by those courts. Conley Publ'g Group v. Journal Communications, 2003 WI 119, ¶ 13, 265 Wis. 2d 128, 665 N.W.2d 879. We will affirm a grant of summary judgment when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." City of Elkhorn v. 211 Centralia Corp., 2004 WI App 139, ¶ 18, 275 Wis. 2d 584, 685 N.W.2d 874, (citing Baxter v. DNR, 165 Wis. 2d 298, 312, 477 N.W.2d 648 (Ct. App. 1991).

¶ 12. The first step of the methodology is to determine whether the pleadings set forth a claim for relief. Trinity Evangelical v. Tower Ins. Co., 2003 WI 46, ¶ 32, 261 Wis. 2d 333, 661 N.W.2d 789. If a claim for relief is stated, then examination is made of the moving party's affidavits and other proof to determine whether a prima facie case for summary judgment has been established. Peninsular Carpets, Inc. v. Bradley Homes, Inc., 58 Wis. 2d 405, 410-11, 206 N.W.2d 408 (1973). If a moving party has established a prima facie case, the opposing party must then establish that there are disputed material facts, or undisputed material facts from which reasonable alternative inferences could be drawn, that entitle such a party to a trial. Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473 (1980).

¶ 13. Baumeister and Brown's principal summary judgment argument in opposition to the motion is that there exist genuine issues of material fact concerning Solner's duty. They claim that the circuit court failed to address properly evidence that created a common-law duty based on foreseeability. In making the argument, Baumeister and Brown rely almost exclusively on this court's recent decision in Alvarado v. Sersch, 2003 WI 55, 262 Wis. 2d 74, 662 N.W.2d 350. That case held: "a duty to use ordinary care is established whenever it is foreseeable that a person's act or failure to act might cause harm to some other person." Id., ¶ 14 (citation omitted).⁵ Baumeister...