McLain v. Keenan

• Decision Date: 20 May 2021
• Docket Number: Appeal No. 2019AP2337
• Citation: 2021 WI App 41,962 N.W.2d 267 (Table)
• Court: Wisconsin Court of Appeals
• Parties: Kevin A. MCLAIN, Plaintiff-Respondent-Cross-Appellant, v. Patrick J. KEENAN, Defendant-Appellant-Cross-Respondent, v. Glenn E. Lorenz p/k/a Glenn Lorenz and Carol J. Lorenz, Third-Party Plaintiffs-Respondents.

962 N.W.2d 267 (Table)

2021 WI App 41

Kevin A. MCLAIN, Plaintiff-Respondent-Cross-Appellant,

v.Patrick J. KEENAN, Defendant-Appellant-Cross-Respondent,

v.Glenn E. Lorenz p/k/a Glenn Lorenz and Carol J. Lorenz, Third-Party Plaintiffs-Respondents.

Appeal No. 2019AP2337

Court of Appeals of Wisconsin.

May 20, 2021

PER CURIAM.

¶1 This lawsuit arises out of the sale of land by Patrick Keenan to Kevin McLain and McLain's subsequent sale of that land to Glenn Lorenz and Carol Lorenz.¹ McLain brought suit against Keenan for Keenan's tortious interference with McLain's contract to sell the land to Lorenz. Keenan asserted as an affirmative defense to McLain's cause of action that McLain agreed prior to the purchase of the land from Keenan that McLain would grant Keenan a right of first refusal over any future sale of the land by McLain, but that Keenan was not given an opportunity to exercise his purported right of first refusal to purchase the land from McLain. Keenan also counterclaimed against McLain regarding his alleged right of first refusal.²

¶2 The Vernon County Circuit Court granted partial summary judgment to McLain on Keenan's counterclaim. The circuit court later denied Keenan's motion to amend his pleadings to include new claims against McLain. A trial to the court was held on McLain's tortious interference with a contract claim. The circuit court determined that Keenan tortiously interfered with McLain's contract with Lorenz and granted a money judgment in favor of McLain.

¶3 Keenan makes four primary arguments on appeal. First, Keenan argues that the circuit court erred in granting partial summary judgment to McLain on Keenan's counterclaim. Second, Keenan argues that the circuit court erred in denying his request to amend his pleadings. Third, Keenan argues that the circuit court erred in determining that he tortiously inferred with McLain's contract with Lorenz. Fourth, Keenan argues that written findings of fact and conclusions of law entered by the circuit court were "untimely." McLain cross-appeals, arguing that the circuit court erred in not awarding to him his actual attorney fees incurred in this action. We reject Keenan's and McLain's arguments and affirm the rulings of the circuit court.

BACKGROUND

¶4 There is no dispute regarding the following material facts.

¶5 In 2012, McLain made an offer to purchase "[a]pprox[imately] 112 acres more or less" belonging to Keenan in Viroqua, Wisconsin. A provision of McLain's offer, related to a parcel to be retained by Keenan, states: "The parties will cooperate in good faith to mark the corners of [an] excluded 5-6 acre parcel and shall share equally in the expense of the survey." McLain's offer to purchase also contained a provision for a right of first refusal that, under certain conditions described therein, would have allowed Keenan the opportunity to purchase the property from McLain if McLain later offered the land for sale. Keenan made a counteroffer which, material to this lawsuit, contained provisions that accepted McLain's offer regarding the excluded five- to six-acre parcel and called for a right of first refusal somewhat different than the provisions in McLain's offer to purchase. McLain accepted Keenan's counteroffer.

¶6 Prior to closing, a survey of the land that was the subject of the sale was prepared to delineate the contours of the Keenan property excluded from the sale.³

¶7 The closing for the sale of the McLain property occurred in 2012. Keenan attended the closing with his attorney, and McLain attended the closing. At the closing, Keenan conveyed the McLain property by warranty deed, and the warranty deed and the commitment for title insurance incorporated the legal description of the Keenan property as delineated by the survey. Keenan's attorney had previously been informed that the survey description of the Keenan property would be incorporated in the title commitment and warranty deed. Keenan's attorney prepared for the closing a document entitled "Right of First Refusal to Purchase Real Estate." (Some capitalization omitted.) McLain's attorney advised McLain prior to the closing not to sign the right of first refusal prepared by Keenan's attorney because the instrument was not consistent with the terms of the accepted counteroffer and was "self-contradictory and ambiguous." (Capitalization omitted.) Neither McLain nor Keenan signed any right of first refusal for the McLain property at or after the closing.

¶8 In 2017, McLain entered into an agreement to sell the McLain property to Lorenz. Before that sale closed, Keenan contacted McLain's realtor and expressed concern regarding the boundary line between the Keenan property and the McLain property. More specifically, Keenan told the realtor that the property he believed that he retained as part of the 2012 sale to McLain was larger than the parcel described in the 2012 warranty deed Keenan signed. Keenan's concerns, as expressed to the realtor, were communicated to Lorenz.

¶9 As a result of Keenan's assertions regarding the boundary line of the Keenan property, the following happened. The closing of the sale between McLain and Lorenz was delayed for thirty days, the sale price for the McLain property was reduced by $1500, McLain had a survey conducted of the property described in the 2012 warranty deed at a cost of $200, and McLain installed at his own expense "a livestock boundary fence" at or near the boundary between the McLain property and the Keenan property.

¶10 McLain sued Keenan for intentional interference with his contract with Lorenz to buy the McLain property and sought as damages additional expenses and losses related to the events just described. As an affirmative defense to that claim, Keenan asserted that McLain had failed to provide him with the following: notice of the sale of the McLain property to Lorenz; and a right of first refusal to purchase the McLain property. Keenan asserted in that affirmative defense that he had "a superior land interest to any third party," which gave him "privilege[ ] to notify the parties of his interest in the property." Keenan also filed a counterclaim against McLain seeking "an order of specific performance pursuant to the Right of First Refusal ... to give [Keenan] the right to purchase the [McLain] property."⁴

¶11 McLain sent to Keenan requests for admission. One of the requests asked Keenan to admit that McLain did not sign a right of first refusal regarding the McLain property. Keenan did not respond to McLain's requests for admission within the thirty days specified in WIS. STAT. § 804.11(1)(b). Thereafter, McLain filed a motion in the circuit court for partial summary judgment seeking the court's determination that the right of first refusal asserted by Keenan was unenforceable because the parties never signed an instrument granting Keenan a right of first refusal to the McLain property. Prior to the hearing on the motion for partial summary judgment, Keenan filed a motion requesting an order enlarging the time for responding to the requests for admission, and Keenan filed with the court documents opposing McLain's request for partial summary judgment.

¶12 The circuit court denied Keenan's motion for an enlargement of time to respond to the requests for admission. The court also granted McLain's motion for partial summary judgment and determined that, based on both Keenan's failure to timely respond to the requests for admission and the undisputed facts in the record, there was no enforceable right of first refusal granted to Keenan by McLain to support Keenan's counterclaim.

¶13 Two days before the scheduled trial on McLain's tortious interference with a contract claim, Keenan filed a motion in the circuit court requesting leave to file amended pleadings, including an amended counterclaim in which Keenan sought to allege new claims against McLain, including a claim for breach of contract. The court denied Keenan's motion.

¶14 In October 2018, the case proceeded to a trial to the court on McLain's claim. The circuit court found that Keenan tortiously interfered with McLain's contract with Lorenz and that as a result of Keenan's tortious interference: Lorenz "required ... $1500 [be] paid" by McLain to Lorenz; McLain had the survey of the parcel redone at a cost of $200; and McLain incurred an interest loss on the sale proceeds in the amount of $594 based on the delay of the closing.

¶15 In May 2019, the circuit court entered an order stating that "[c]losing paperwork from 10/18/[18] [(the final date of the trial)] has not been timely submitted" and ordering that the "case is dismissed twenty days after the date of this Order unless good cause is shown within the twenty days why this order should not take effect." In response, the next day McLain submitted to the circuit court proposed findings of fact, conclusions of law, and a judgment. Keenan filed an objection to McLain's proposed findings of fact, conclusions of law, and judgment on the basis that the filings were "untimel[y]." The court signed McLain's proposed findings, conclusions, and judgment in June 2019.

¶16 McLain then filed a motion asking the circuit court to reconsider and amend its findings and conclusions, make additional findings and conclusions, and amend the judgment, including adding an amount to the judgment for the boundary fence that McLain installed. Keenan opposed McLain's motion on the basis that this motion was also untimely.

¶17 The circuit court entered an order amending its findings of fact and conclusions of law, and entered an amended judgment for Keenan's intentional interference with a contract in the amount of $4,771.93 and awarded McLain statutory costs. But, the circuit court did not award McLain his attorney fees incurred in this action as McLain requested. Keenan appeals and McLain cross-appeals.

¶18 We will mention other material facts in the following discussion.

DISCUSSION

I. Keenan's Appeal.

¶19 Keenan makes four primary arguments on appeal. Keenan...