Precision Erecting, Inc. v. AFW Foundry, Inc., 98-0922.

CourtCourt of Appeals of Wisconsin
Writing for the CourtBROWN, J.
Citation598 N.W.2d 614,229 Wis.2d 189
Decision Date30 June 1999
Docket NumberNo. 98-0922.,98-0922.
PartiesPRECISION ERECTING, INC., Plaintiff, v. AFW FOUNDRY, INC., Defendant-Third-Party Plaintiff-Respondent, M&I MARSHALL & ILSLEY BANK, G.A.P., Inc., Central Acoustical Supply House and Verhalen, Inc., Defendants, v. SCHMITZ READY MIX, INC., and August H. Wulf, Inc., Third-Party Defendants-Appellants, RBA, INC., Third-Party Defendant-Co-Appellant, LIPPERT TILE COMPANY, INC., Cedarburg Lumber Company, Circle Electric, Inc., IDAC/CAD, Inc., Nambe Mills, Inc., Waste Management, Inc., A&R Door Service, Inc., AATFAB Corporation, d/b/a Carpenter Technology Communications & Security, American K-9 Services, Inc., Bonafide Doors & Hardware, Inc., Fast Signs, Federal Express, Finial, Inc., JBD Enterprises, Koester Corporation, Labor Ready, Inc., Williams Steel & Supply Company, Antonic & Associates, Ltd., and AGT Corporation, Third-Party Defendants.

229 Wis.2d 189
598 N.W.2d 614

PRECISION ERECTING, INC., Plaintiff,
v.
AFW FOUNDRY, INC., Defendant-Third-Party Plaintiff-Respondent,
M&I MARSHALL & ILSLEY BANK, G.A.P., Inc., Central Acoustical Supply House and Verhalen, Inc., Defendants,
v.
SCHMITZ READY MIX, INC., and August H. Wulf, Inc., Third-Party Defendants-Appellants,
RBA, INC., Third-Party Defendant-Co-Appellant,
LIPPERT TILE COMPANY, INC., Cedarburg Lumber Company, Circle Electric, Inc., IDAC/CAD, Inc., Nambe Mills, Inc., Waste Management, Inc., A&R Door Service, Inc., AATFAB Corporation, d/b/a Carpenter Technology Communications & Security, American K-9 Services, Inc., Bonafide Doors & Hardware, Inc., Fast Signs, Federal Express, Finial, Inc., JBD Enterprises, Koester Corporation, Labor Ready, Inc., Williams Steel & Supply Company, Antonic & Associates, Ltd., and AGT Corporation, Third-Party Defendants

No. 98-0922.

Court of Appeals of Wisconsin.

Submitted on briefs May 11, 1999.

Decided June 30, 1999.


229 Wis.2d 191
On behalf of the third-party defendant-appellant Schmitz Ready Mix, Inc., the cause was submitted on the briefs of William A. Rinehart of Rinehart, Scaffidi & Mathews of Milwaukee

On behalf of the third-party defendant-appellant August H. Wulf, the cause was submitted on the briefs of William A. Rinehart of Rinehart, Scaffidi & Mathews of Milwaukee.

On behalf of the third-party defendant-co-appellant RBA, Inc., the cause was submitted on the briefs of Terence P. Fox of Dewane, Dewane, Kummer, Lambert & Fox of Manitowoc.

On behalf of the defendant-third-party plaintiff-respondent, the cause was submitted on the briefs of Thad W. Jelinske, Donald A. Allen and Matthew R. Falk of Domnitz, Mawicke, Goisman & Rosenberg, S.C. of Milwaukee.

Before Snyder, P.J., Brown and Nettesheim, JJ.

BROWN, J.

These three appellants provide us with the opportunity to flesh out our issue preclusion

229 Wis.2d 192
holding in Precision Erecting, Inc. v. M&I Marshall & Ilsley Bank, 224 Wis. 2d 288, 592 N.W.2d 5 (Ct. App.) (hereinafter Precision Erecting I), review denied, 225 Wis. 2d 489, 594 N.W.2d 383 (1998). There, we held that when "a litigant who is not the subject of the motion for summary judgment nonetheless has reason to dispute the facts supporting the motion, it is that litigant's duty to appear and object to the motion." Id. at 292-93, 592 N.W.2d at 7. In that case, as in the case of one of the three appellants here, the party's claim hinged on another's status as agent or general contractor. In a previous summary judgment the trial court had ruled that the individual was a general contractor. We held that issue preclusion barred relitigation of the issue. See id. at 301, 592 N.W.2d at 11. The same is true here for the party seeking to reopen this finding under the guise of apparent authority and we affirm the summary judgment regarding that party. The other two appellants' claims, on the other hand, involve factual allegations not at issue in the previous summary judgment. Issue preclusion thus does not bar these claims. We reverse and remand these causes

Background

Precision Erecting I and the present appeal arise out of an improvement project undertaken by AFW Foundry, Inc. (AFW). AFW entered into an agreement with Jeffrey Antonic, of Antonic & Associates, Ltd. (Antonic), for Antonic to coordinate the improvement project. Their agreement was memorialized in a document entitled Finalized Project Agreement, which listed all the projects that Antonic was to supervise. Several subcontractors and materialmen were involved in the project. Precision Erecting, Inc.; Schmitz Ready Mix, Inc. (Schmitz); and August H.

229 Wis.2d 193
Wulf, Inc. (Wulf) all filed suit against AFW when AFW quit paying their bills. Schmitz' and Wulf's cases were consolidated with Precision Erecting's case, in which Schmitz, Wulf, RBA, Inc. and others were named as third-party defendants in AFW's third-party complaint. That complaint alleged that Antonic was a general contractor, not AFW's agent, and thus AFW's liability was limited to the balance due under the contract between AFW and Antonic. AFW then moved for summary judgment on the complaint and requested that the court enter judgment establishing AFW's total exposure to liability under the contract. This the court did. We will refer to this summary judgment as the 1996 summary judgment

In Precision Erecting I, Nambe Mills, Inc. (Nambe), one of the third-party defendants, appealed from a subsequent summary judgment in favor of Nambe for eighteen percent of its claim. See id. at 295, 592 N.W.2d at 8. The trial court had ruled that Nambe was precluded from relitigating Antonic's status, upon which Nambe's claim depended. See id. at 301, 592 N.W.2d at 11. As we noted there, "a summary judgment motion by its very nature alleges certain facts to be undisputed." Id. at 292, 592 N.W.2d at 7. Thus, "Nambe should have asserted itself at the [1996] summary judgment stage if it felt that material facts regarding Antonic's status were in dispute." Id. at 301, 592 N.W.2d at 11. We therefore affirmed the summary judgment establishing the extent of AFW's liability to Nambe.

As it did with Nambe, AFW moved for summary judgment in favor of the three third-party defendants here in order to establish its total liability to each of them. Each of the three countered with its own motion for summary judgment. The trial court granted summary

229 Wis.2d 194
judgment to AFW in all three cases, finding that "these present contractors still cannot show a contract with AFW, but rather with the party whom this court had found to be the general...

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4 practice notes
  • Zurich American v. Wis. Physicians Serv., No. 2006AP2320.
    • United States
    • Court of Appeals of Wisconsin
    • 14 Noviembre 2007
    ...material fact, waive trial, and stipulate to the court's resolution of the legal issues. Precision Erecting, Inc. v. AFW Foundry, Inc., 229 Wis.2d 189, 197, 598 N.W.2d 614 (Ct.App.1999) ("reviewing court may still 743 N.W.2d 715 decide, as a matter of law, that there are indeed material fac......
  • Caldwell v. JH FINDORFF & SON, INC., No. 2004AP1157.
    • United States
    • Court of Appeals of Wisconsin
    • 21 Abril 2005
    ...address a summary judgment issue, we may reach the merits on the issues Findorff raises. Precision Erecting, Inc. v. AFW Foundry, Inc., 229 Wis. 2d 189, 197, 598 N.W.2d 614 (Ct. App. 1. Statute of Repose Defense ¶22 We consider first the statute of repose defense. WISCONSIN STAT. § 893.89 p......
  • Capwin 19, LLC v. Zingg, No. 2007AP950 (Wis. App. 12/13/2007), No. 2007AP950.
    • United States
    • Court of Appeals of Wisconsin
    • 13 Diciembre 2007
    ...court must determine, as a matter of law, whether any material facts are in dispute. Precision Erecting, Inc. v. AFW Foundry, Inc., 229 Wis. 2d 189, 197, 598 N.W.2d 614 (Ct. App. All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted. 4. Although both Zin......
  • Harmony Antique Cars, Inc. v. Midwest Tower Partners, No. 2005AP1033 (WI 3/16/2006), No. 2005AP1033.
    • United States
    • United States State Supreme Court of Wisconsin
    • 16 Marzo 2006
    ...124, ¶8, 265 Wis. 2d 442, 665 N.W.2d 391; "apparent authority," Precision Erecting, Inc. v. AFW Foundry, Inc. (Precision Erecting II), 229 Wis. 2d 189, 195, 598 N.W.2d 614 (Ct. App. 1999); "status as agent or general contractor," Precision Erecting v. M & I Marshall & Ilsley Bank (Precision......
4 cases
  • Zurich American v. Wis. Physicians Serv., 2006AP2320.
    • United States
    • Court of Appeals of Wisconsin
    • 14 Noviembre 2007
    ...material fact, waive trial, and stipulate to the court's resolution of the legal issues. Precision Erecting, Inc. v. AFW Foundry, Inc., 229 Wis.2d 189, 197, 598 N.W.2d 614 (Ct.App.1999) ("reviewing court may still 743 N.W.2d 715 decide, as a matter of law, that there are indeed material fac......
  • Caldwell v. JH FINDORFF & SON, INC., 2004AP1157.
    • United States
    • Court of Appeals of Wisconsin
    • 21 Abril 2005
    ...address a summary judgment issue, we may reach the merits on the issues Findorff raises. Precision Erecting, Inc. v. AFW Foundry, Inc., 229 Wis. 2d 189, 197, 598 N.W.2d 614 (Ct. App. 1. Statute of Repose Defense ¶22 We consider first the statute of repose defense. WISCONSIN STAT. § 893.89 p......
  • Capwin 19, LLC v. Zingg, No. 2007AP950 (Wis. App. 12/13/2007), 2007AP950.
    • United States
    • Court of Appeals of Wisconsin
    • 13 Diciembre 2007
    ...court must determine, as a matter of law, whether any material facts are in dispute. Precision Erecting, Inc. v. AFW Foundry, Inc., 229 Wis. 2d 189, 197, 598 N.W.2d 614 (Ct. App. All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted. 4. Although both Zin......
  • Harmony Antique Cars, Inc. v. Midwest Tower Partners, No. 2005AP1033 (WI 3/16/2006), 2005AP1033.
    • United States
    • United States State Supreme Court of Wisconsin
    • 16 Marzo 2006
    ...124, ¶8, 265 Wis. 2d 442, 665 N.W.2d 391; "apparent authority," Precision Erecting, Inc. v. AFW Foundry, Inc. (Precision Erecting II), 229 Wis. 2d 189, 195, 598 N.W.2d 614 (Ct. App. 1999); "status as agent or general contractor," Precision Erecting v. M & I Marshall & Ilsley Bank (Precision......

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