Grube v. Daun, No. 95-2353

• Court: United States State Supreme Court of Wisconsin
• Citation: 213 Wis.2d 533,570 N.W.2d 851
• Docket Number: No. 95-2353
• Parties: Gordon J. GRUBE and Julie Grube, Plaintiffs-Appellants, v. John L. DAUN, Louis Achter and Secura Insurance, Defendants-Respondents.
• Decision Date: 12 November 1997

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570 N.W.2d 851 213 Wis.2d 533 Gordon J. GRUBE and Julie Grube, Plaintiffs-Appellants,
v.
John L. DAUN, Louis Achter and Secura Insurance,
Defendants-Respondents. No. 95-2353. Supreme Court of Wisconsin. Nov. 12, 1997.

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[213 Wis.2d 536]

¶1 PER CURIAM.

This case is again before the court in response to the plaintiffs' motion for reconsideration of our decision in Grube v. Daun, 210 Wis.2d 682, 563 N.W.2d 523 (1997). In that opinion, upon certification from the court of appeals, this court affirmed the decision of the circuit court ¹ and rejected the plaintiffs' contentions that a private right of action existed [213 Wis.2d 537] under subchapter IV of Wis. Stat. ch. 144 (1993-94). ² We similarly rejected the plaintiffs' claims that violation of Wis. Stat. § 144.76, a nonsafety statute, constituted negligence per se.

¶2 The plaintiffs' motion for reconsideration does not ask this court to revisit the two issues previously resolved. Instead, the plaintiffs ask this court to resolve eight additional issues raised before the court of appeals. Since the plaintiffs' motion for reconsideration does not challenge our resolution of the two certified issues, we deny the motion for reconsideration. However, because the additional eight issues raised by the plaintiffs in the court of appeals were not controlled by our decision on the two certified issues, we determine that the plaintiffs are entitled to appellate review of those eight additional issues. Accordingly, we deny the motion for reconsideration and address the additional issues. Upon review, we affirm the circuit court's disposition of these matters.

I. FACTS AND PROCEDURAL HISTORY

¶3 This dispute arises from the sale of a parcel of land contaminated by a leaking underground storage tank ("UST"). Defendant Louis Achter ("Achter"), who had lived on his family's farm in Calumet County all of his life, purchased the farm from his mother in 1974. To facilitate farm operations, Achter,

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at some point in the early 1970s, had installed an underground tank to store gasoline for use by farm machinery. In 1978, after refilling the UST and noticing a decreasing gas level, Achter discovered that gasoline was leaking from the tank. Achter then had the remaining gasoline pumped [213 Wis.2d 538] out of the tank and placed in a new above-ground tank. The old tank remained buried. Achter continued to live on the property after the leak. His family and livestock also subsequently relied on drinking water from one of several wells situated on the property.

¶4 Defendant John Daun (Daun), also a farmer, purchased the 124-acre farm "as is" from Achter in early 1985. Daun then subdivided the land to create a "farmette." He offered the small parcel containing the farm buildings, three wells and the UST for sale. Plaintiffs Julie and Gordon Grube purchased the parcel, also on an "as is" basis, from Daun in December 1985, with the expressed intention of making extensive renovations.

¶5 Three years later, in the course of properly abandoning what was previously thought to be a dry well, the Grubes discovered groundwater gasoline contamination. The Grubes reported the contamination to the Wisconsin Department of Natural Resources ("DNR") on the advice of counsel. The DNR investigated the contamination and then responded by notifying the Grubes on October 3, 1988, and, later, defendant Achter, of their potential responsibility for the remediation costs of cleaning up the gasoline contamination.

¶6 The Grubes filed suit against Daun on December 16, 1988. Daun responded by filing a third-party complaint against Achter. The Grubes then amended their complaint several times to include Achter and his insurance company, Secura Insurance (Secura), as defendants and to ask, in the alternative, that their purchase agreement with Daun be rescinded due to mutual mistake in the formation of the contract. The Grubes alleged negligent misrepresentation, intentional misrepresentation, strict responsibility for [213 Wis.2d 539] misrepresentation, breach of warranty, negligence by Achter in allowing the leak, negligence by Achter for not reporting the leak to the DNR, breach of Achter's duty to keep the land safe, violation of Wis. Stat. § 100.18 which prohibits fraudulent misrepresentations, and strict liability for conducting an abnormally dangerous activity. ³

¶7 Daun cross-claimed against Achter, while Achter filed a third-party complaint against Secura demanding that Secura provide him with a defense and cover any judgments against him. The defendants also filed motions for summary judgment, which the circuit court granted in part, thereby dismissing many of the plaintiffs' claims. The plaintiffs appealed the circuit court's orders. The court of appeals reinstated some of the Grubes' claims. See Grube v. Daun, 173 Wis.2d 30, 496 N.W.2d 106 (Ct.App.1992). The circuit court then dismissed the plaintiffs' claims for strict liability at a pretrial motion hearing in February 1995. Responding to further objections, the circuit court dismissed the Grubes' claims for rescission on the first day of trial on the grounds that the Grubes had waived that form of relief by affirming the contract. Finally, at a pre-verdict conference, the circuit court dismissed the misrepresentation claims due to a stipulation of counsel.

¶8 Ultimately, the jury only considered claims based on the negligence of Achter and Thiel. Because the plaintiffs' remaining misrepresentation claims against Daun were dependent on agency principles, the parties agreed to determine Daun's vicarious liability through post-verdict motions if Thiel were found negligent.

[213 Wis.2d 540]

¶9 The negligence claims were tried to the jury and the jury found Achter and Thiel not negligent. The jury also found that the Grubes were negligent in their purchase of the property. Post-verdict motions for relief were denied, with the circuit court expressly

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affirming the jury's verdict. The Grubes appealed the circuit court proceedings on ten grounds.

¶10 The court of appeals certified the private right of action and negligence per se questions to this court. See Grube v. Daun, 210 Wis.2d 682, 563 N.W.2d 523 (1997). The court of appeals also noted in its certification to this court that all additional issues raised on appeal would be controlled by our resolution of the two certified questions. While this court accepted the appeal on all matters before the court of appeals, and the plaintiffs relied on and supplemented their briefs before the court of appeals, our previous opinion addressed only the two certified questions.

II. MOTION FOR RECONSIDERATION

¶11 The plaintiffs do not seek reconsideration of the two issues resolved by this court in Grube v. Daun, 210 Wis. 2d 682, 563 N.W.2d 523 (1997). Rather, the plaintiffs point to this court's acceptance of certification to hear all issues raised before the court of appeals. The plaintiffs also assert that the court of appeals' statement that the remaining eight appellate issues would be controlled by our decision on the certified issues was in error.

¶12 This court will change a decision on reconsideration "only when the court has overlooked controlling legal precedent or important policy considerations or has overlooked or misconstrued a controlling or significant fact appearing in the record." Wisconsin Supreme Court Operating Procedures, II J. [213 Wis.2d 541] Since the plaintiffs do not challenge this court's resolution of the two issues disposed of in our earlier decision, reconsideration is not an appropriate remedy.

¶13 However, we determine that our reliance on the court of appeals' certification, stating that all other issues would be controlled by the two certified issues, was misplaced. The additional eight issues raised by the plaintiffs in the court of appeals were not controlled by our prior decision. We further determine that footnote 1 in Grube v. Daun, 210 Wis.2d 682, 685 n. 1, 563 N.W.2d 523 (1997) should be withdrawn ⁴ and that the plaintiffs are entitled to appellate review of those eight additional issues. Accordingly, we respond now to the plaintiffs' initial appeal on these issues.

III. EVIDENCE OF COMMON LAW NEGLIGENCE

¶14 The plaintiffs' most vigorous challenge on appeal attacks the circuit court's repeated refusal to allow evidence of Achter's violation of Wis. Stat. § 144.76 ⁵ to be admitted as evidence of a standard of care for common law negligence purposes. Evidentiary questions are properly resolved at the circuit court's [213 Wis.2d 542] discretion. See State v. Pharr, 115 Wis.2d 334, 342, 340 N.W.2d 498 (1983). Where this court is asked to review such rulings, we look not to see if we agree with the circuit court's determination, but rather whether "the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record." State v. Pharr, 115 Wis.2d at 342, 340 N.W.2d 498 (quoting State v. Wollman, 86 Wis.2d 459, 464, 273 N.W.2d 225 (1979)). If a reasonable basis for the circuit court's ruling exists, we will not disturb it. See State v. Harris, 123 Wis.2d 231, 365 N.W.2d 922 (Ct.App.1985). Our review of the trial record indicates that the circuit court properly exercised its discretion.

¶15 At trial, plaintiffs' counsel repeatedly insisted that it was the plaintiffs' "right" to enter evidence of Achter's violation of Wis. Stat. § 144.76 to show a standard of care for common law negligence since the statute was "the law of the land." However, absent a safety statute or an established

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private right of action, this court has never held that parties have an absolute right to admit evidence of violation of a civil statute to show a standard of care. Even were this court inclined to adopt the plaintiffs' position that a violation of a civil statute can be generally admitted for such purposes, a question we decline to address on this appeal, the circuit...