2010AP1802 Harborview Office Center, LLC, v. Nash

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Civil Procedure
Issue preclusion

Where assumed facts were not actually litigated, determined based on evidence or essential to a judgment in a prior proceeding, issue preclusion does not apply.

“It is evident from the record that the facts involved in Nash’s alleged negligence were often disputed but not actually litigated or determined in the prior proceeding concerning Harborview’s professional negligence claim. Nor was a determination as to Nash’s conduct essential to that judgment. See Estate of Rille, 300 Wis. 2d 1, ¶36. Nash’s motion for summary judgment against Harborview did not concede negligence, nor did this court make any factual or legal determination as to Nash’s negligence in the underlying litigation.

Rather, Harborview II acknowledged the disputed roles of Fischer and Nash, observing: ‘Fischer contends he informed attorney Nash relatively soon after commencing the work, but Nash asserts he did not learn of the leaks or repairs until later,’ but noted, ‘regardless, the construction defendants were not notified … until the repairs were nearly completed.’ Harborview II, unpublished slip op. ¶6. Again, it was Harborview’s conduct at issue in Harborview II; its ability to recover turned on its own conduct, not that of Nash. As Nash argued at summary judgment, ‘[E]ven if you assumed the allegations of Harborview’s Complaint, i.e., that he was negligent, Harborview’s claims were still barred by its own egregious conduct.’”

Reversed and Remanded.

Recommended for publication in the official reports.

2010AP1802 Harborview Office Center, LLC, v. Nash

Dist. II, Kenosha County, Simanek, J., Neubauer, J.

Attorneys: For Appellant: Erickson, Paul R., Milwaukee; Race, Kari H., Milwaukee; Rosenzweig, Stacie H., Milwaukee; For Respondent: Hartley, Thomas B., Kenosha; Wilk, David P., Kenosha; Hartley, Miles W., Kenosha

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