Fenn Galleries v. Stasiak, 92-2940

• Decision Date: 29 June 1993
• Docket Number: No. 92-2940,92-2940
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. FENN GALLERIES, Plaintiff-Appellant, v. Kenneth STASIAK, Defendant-Respondent, John DOE, a Person of Unknown Identity, Defendant.
• Court: Wisconsin Court of Appeals

Page 875

504 N.W.2d 875

178 Wis.2d 317

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

FENN GALLERIES, Plaintiff-Appellant, v. Kenneth STASIAK, Defendant-Respondent John DOE, a Person of Unknown Identity, Defendant.

No. 92-2940.

Court of Appeals of Wisconsin.

June 29, 1993.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

PER CURIAM.

Fenn Galleries appeals an order granting Kenneth Stasiak summary judgment and dismissing its complaint seeking recovery of damages against Stasiak as principal for the acts of his agents. Fenn Galleries sought recovery of a $75,000 security deposit it paid Pawel Raczka to examine for possible purchase a Georgia O'Keefe painting Raczka was offering for sale. After Fenn Galleries inspected and rejected the painting as a fake, Raczka was unable to return the security deposit. Fenn Galleries sought to hold Stasiak liable as the owner of the painting. The trial court apparently determined that the facts on summary judgment conclusively demonstrated the nonexistence of a principal-agent relationship between Stasiak and Raczka. The court also considered the litigation "punitive" and apparently dismissed the suit on that additional ground.

Fenn Galleries argues that the material it presented on summary judgment created a dispute of material fact whether Raczka was Stasiak's agent. Stasiak argues that Fenn Galleries' affidavits contained hearsay statements that failed to refute Stasiak's affidavit that he sold the painting outright to a third party, who then may have employed Raczka. We conclude that the record contains disputes of material facts and that the trial court should not have dismissed the suit as punitive litigation. We therefore reverse the summary judgment and remand for further proceedings.

Fenn Galleries offered enough evidence to defeat Stasiak's motion for summary judgment. Summary judgment is appropriate when there is no dispute of material fact and the moving party is entitled to judgment as a matter of law. Powalka v. State Mut. Life Assur. Co., 53 Wis.2d 513, 518, 192 N.W.2d 852, 854 (1972). Through excerpts from Raczka's deposition, which arose out of proceedings in a bankruptcy court, Fenn Galleries presented evidence that Stasiak owned the painting. Raczka's deposition was the equivalent of an affidavit. See sec. 802.08, Stats. Although Raczka had no personal knowledge of Stasiak and his information came from an attorney who provided him the painting, we reject Stasiak's argument that Raczka was thereby repeating inadmissible hearsay that the trial court should have rejected. According to Raczka, the attorney told him that he acted on Stasiak's behalf. Raczka could testify to what the attorney told him pursuant to sec. 908.01(4)(b)4, Stats. This provision excludes from hearsay all admissions by a party's agent concerning a matter within the scope of the agent's employment. Thus, sec. 908.01(4)(b)4...