Civil Procedure — summary judgment

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Wisconsin Court of Appeals

Civil

Civil Procedure — summary judgment

Rex Rathbun appeals an order dismissing his claims against Wagan, LLC, d/b/a Thermocore Structural Insulated Panel Systems, (Thermocore) and Dominion of Canada General Insurance Company (Dominion). Rathbun contends: (1) the circuit court improperly converted motions in limine into motions for summary judgment; and (2) factual disputes preclude summary judgment on the issues of agency, apparent authority, and Rathbun’s status as a third-party beneficiary. Rathbun also argues the circuit court improperly lifted a stay on the enforcement of Thermocore’s construction lien on Rathbun’s property.

We reject Rathbun’s arguments and affirm. First, we conclude the circuit court properly exercised its discretion by granting Thermocore’s and Dominion’s motions in limine. Once those motions were granted, it would have been impossible for Rathbun to prevail on his claims involving agency and apparent authority. Accordingly, the circuit court correctly dismissed those claims. Second, because Rathbun never pled a third-party beneficiary claim, the circuit court properly refused to allow him to proceed on a third-party beneficiary theory. Third, the stay on enforcement of the construction lien was contingent on the resolution of Rathbun’s counterclaims against Thermocore. After Rathbun’s counterclaims were dismissed, nothing prevented the circuit court from lifting the stay. This opinion will not be published.

2010AP1512 Wagan LLC v. Rathbun, et al.

Dist III, Chippewa County, Henderson, J., Per Curiam

Attorneys: For Appellant: Ryberg, J. Drew, Eau Claire; Happe, Michael J., Eau Claire; For Respondent: Moore, Terry, Eau Claire; Wickstrom, Beverly, Eau Claire