Tews v. NHI, LLC

• Decision Date: 21 December 2010
• Docket Number: No. 2009AP828.,2009AP828.
• Citation: 793 N.W.2d 860,2010 WI 137,330 Wis. 2d 389
• Parties: Ryan C. TEWS, Plaintiff-Appellant-Petitioner, v. NHI, LLC, J-Star Bodco, Inc. n/k/a 1234 Wisconsin, Inc., Nasco Holdings, Inc., Nasco Exports, Inc., The Aristotle Corporation, Geneve Holdings, Inc., Industrie Bodco, Inc., Travelers Property Casualty Company of America and Westchester Surplus Lines Insurance Company, Defendants, Wisconsin Electric Power Company d/b/a WE Energies, Defendant-Respondent.
• Court: Wisconsin Supreme Court

330 Wis.2d 389

793 N.W.2d 860

2010 WI 137

Ryan C. TEWS, Plaintiff-Appellant-Petitioner,

v.NHI, LLC, J-Star Bodco, Inc. n/k/a 1234 Wisconsin, Inc., Nasco Holdings, Inc., Nasco Exports, Inc., The Aristotle Corporation, Geneve Holdings, Inc., Industrie Bodco, Inc., Travelers Property Casualty Company of America and Westchester Surplus Lines Insurance Company, Defendants,Wisconsin Electric Power Company d/b/a WE Energies, Defendant-Respondent.

No. 2009AP828.

Supreme Court of Wisconsin.

Argued Oct. 7, 2010.

Decided Dec. 21, 2010.

For the plaintiff-appellant-petitioner there were briefs by Raymond E. Krek, Chad T. Buehler and Krek & Associates, Jefferson, and oral argument by Raymond E. Krek.

For the defendant-respondent there was a brief by John E. Feldbruegge, Kelly J. Noyes and von Briesen & Roper, S.C., Milwaukee, and oral argument by John E. Feldbruegge.

ANN WALSH BRADLEY, J.

¶ 1PlaintiffRyan C. Tews seeks review of an unpublished decision of the court of appeals affirming an order of the circuit court which concluded that the statute of limitations had run and granted summary judgment in favor of the defendant, Wisconsin Electric Power Company("WEPCo").¹Tews apparently had difficulty identifying the correct legal name of the defendant that allegedly serviced the electrical substation where the injury occurred.His original complaint named We Energies and his amended complaint insteadnamed Wisconsin EnergyCorporation d/b/a We Energies ("Wisconsin Energy").Both were filed within the statute of limitations.However, Tews' second amended complaint alleging WEPCo as the proper name of the defendant was filed after the statute of limitations expired.Tews contends that WEPCo is not entitled to summary judgment because his second amended complaint relates back to the date he filed his original or amended complaint.

¶ 2 The purpose of the relation-back statute, Wis. Stat. § 802.09(3),² is to ameliorate the effect of the statute of limitations in a situation where the opposing party has received fair notice of the claim.When a defendant is added as a party after the applicable limitations period and all the requirements of the relation-back statute are satisfied, fair notice has been provided, and the added defendant has been given the full benefit of the protections that the statute of limitations was intended to provide.

¶ 3 The relation-back statute as applied here requires first that the claim asserted in the second amended complaint arose out of the same transaction, occurrence, or event set forth in the original complaint.There is no dispute that this requirement is satisfied.Second, the relation-back statute requires that within the time period provided by law for commencing an action, WEPCo received such notice of the institution of the action that it will not be prejudiced in maintaining a defense on the merits.Third, the relation-back statute requires that within the time period provided by law for commencing an action, WEPCo knew or shouldhave known that but for a mistake concerning the identity of the proper party, the action would have been brought against WEPCo.

¶ 4 In reviewing whether WEPCo is entitled to summary judgment, we apply well-established methodology.A court initially examines the pleadings to determine whether claims have been stated and material factual issues presented.To make a prima facie case for summary judgment, a moving defendant must show a defense that would defeat the plaintiff.If the moving party has made a prima facie case for summary judgment, the court must examine the affidavits and other proof of the opposing party to determine whether a genuine issue exists as to any material fact or whether reasonable conflicting inferences may be drawn from undisputed facts.

¶ 5 An examination of these pleadings reveals the following undisputed facts: The timing of the incident is undisputed, the location of the incident is undisputed, and that Tews actually suffered injuries as a result of contact with an "electrical part" is undisputed.Likewise, it is undisputed that WEPCo has offices at the same location as Wisconsin Energy, WEPCo has the same registered agent as Wisconsin Energy, and WEPCo has retained the services of same attorney who represented We Energies and Wisconsin Energy from the outset of the case.

¶ 6 These undisputed facts raise competing reasonable inferences.One of the reasonable inferences is that the requirements of the relation-back statute are satisfied, and that Tews' second amended complaint is therefore not barred by the statute of limitations.

¶ 7 Although WEPCo made various factual assertions in its affidavit, nothing set forth in its affidavitresolves in WEPCo's favor the competing inferences raisedby the undisputed facts in the pleadings.We therefore conclude that WEPCo is not entitled to summary judgment.Accordingly, we reverse the decision of the court of appeals.

I

¶ 8 Even though the procedural facts of this case are complex, the facts giving rise to this lawsuit are relatively straightforward.Tews spent a portion of the evening of December 30, 2004 at Lennigan's Bar in Fort Atkinson.He departed the bar on foot and headed home, taking his usual shortcut across the parking lot behind the NASCO plant.Tews alleges that he attempted to exit the parking lot through the north gate but was unable to do so because it was closed and locked.He allegedly entered an unlit, fenced-in electrical sub-station through an unlocked gate.Once in the sub-station, Tews came into contact with part of a transformer.The injuries sustained by Tews are both permanent and severe.

¶ 9 Tews filed suit on September 26, 2007.Among other defendants, he named "WE Energies" in his complaint.³Tews alleged that We Energies is a Wisconsin corporation "with its principal place of business located at 231 West Michigan Street, Milwaukee, Wisconsin 53203."The record reflects that the complaint was served on a legal assistant authorized to accept service at 231 W. Michigan Street in Milwaukee.

¶ 10 In its answer, We Energies "den[ied] that We Energies is a company, ... that it is organized andexists under the laws of the State of Wisconsin or that it has a principal place of business at 231 West Michigan Street, Milwaukee, WI[.]"It asserted that We Energies "lacks capacity to be sued in that it is not a legal entity but merely a trade name."

¶ 11 Despite We Energies' assertion that it was not a legal entity, it retained counsel.Attorney Feldbruegge filed a notice of appearance stating that the law firm of von Briesen & Roper, S.C. had been "retained by and appear for the defendant, We Energies, in the above-entitled action[.]"It was Attorney Feldbruegge who filed the answer and a motion to dismiss, in which We Energies admitted that Tews departed Lennigan's Bar on foot, that the north gate of the parking lot was closed and locked, that Tews "contacted an electrical part," and that Tews "suffered injuries as a result of said electrical contact."On behalf of We Energies, Attorney Feldbruegge also conducted discovery.

¶ 12 On December 28, 2007, two days before the statute of limitations expired, Tews amended his complaint and named "Wisconsin Energy Corporation(d/b/a WE ENERGIES)."The amended complaint asserted that Wisconsin Energy is a Wisconsin company "with its principal place of business located at 231 West Michigan Street, Milwaukee, Wisconsin 53203."It further asserted that Wisconsin Energy "has as its registered agent, Keith H. Ecke, who is located at 231 West Michigan Street, Milwaukee, Wisconsin 53203."The amended complaint's factual allegations are nearly identical to the factual allegations set forth in Tews' initial complaint.⁴

¶ 13 Attorney Feldbruegge did not file a notice of appearance for the newlynamed Wisconsin Energy.Rather, he filed an "amended" notice of appearance and then answered the amended complaint on behalf of Wisconsin Energy.In its answer, Wisconsin Energy admitted that it was a Wisconsin corporation with "a principal place of business located at 231 West Michigan Street, Milwaukee, WI 53203 and has as its registered agent Keith H. Ecke[.]"

¶ 14 Like the answer to the complaint against We Energies, Wisconsin Energy admitted that Tews left Lennigan's Bar on foot, that the north gate of the parking lot was closed and locked, that Tews "contacted an electrical part," and that Tews "suffered injuries as a result of said electrical contact."However, it alleged that Wisconsin Energy's business activities "are limited to that of a holding corporation" and that Wisconsin Energy "is not liable for the torts of its wholly owned subsidiaries."⁵

¶ 15 Several months later, two related motions were filed, one by each party.Wisconsin Energy filed a motion to dismiss, and Tews filed a motion asking the court for leave to amend his complaint for the second time to add a defendant.

¶ 16 Wisconsin Energy filed its motion to dismiss on July 31, 2008, and asserted that the motion was "based on its lack of liability for the torts of its whollyowned subsidiaries."In an attached affidavit, the Executive Vice President of Wisconsin Energy averred that "Wisconsin Energy Corporation does not engage in the business of generation and/or distribution of electric energy but is the owner of 100% of the stock of [WEPCo]."He further identified WEPCo as "the electric utility which provides electric service to businesses and residences in the southeastern portion of the State of Wisconsin, including Fort Atkinson where the accident which is the subject matter of this action is located."

¶ 17 Tews' motion for leave to amend his complaint by adding WEPCo as a defendant was filed four days later on August 4, 2008.He asserted that under Wis. Stat. § 802.09(3),⁶ his second amended complaint would relate back to the date of a prior filing.

¶ 18 Throughout the briefing on the two motions, Wisconsin Energy argued that it should be dismissed as a defendant because it was not...