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Knowledge can be imputed to defendant

Hon. Ann Walsh Bradley

Hon. Ann Walsh Bradley

A lawsuit against Wisconsin Electric Power Company (WEPCo) can proceed, even though it was filed after the statute of limitations, because the plaintiff mistakenly sued Wisconsin Energy Corp. before the limitation period ran.

The Wisconsin Supreme Court held on Dec. 21 that the untimely complaint relates back to the earlier one, because the two corporations share office space, registered agent, and counsel.

The court also clarified that while it is a good idea, it is not necessary that parties include affidavits at the summary judgment stage.

Ryan C. Tews was injured while walking through an unlocked electrical sub-station on Dec. 30, 2004.

On Sept. 26, 2007, he filed suit, naming We Energies as one of the defendants. The complaint alleged that We Energies has its principal place of business at 231 W. Michigan St. in Milwaukee.

In its answer filed by attorney, John E. Feldbruegge, We Energies denied that it is a legal entity that can be sued.

On Dec. 28, 2007, two days before expiration of the statute of limitations, Tews filed an amended complaint, naming Wisconsin Energy Corporation instead. The complaint also said that it had its principal place of business at the same address, and identified the registered agent as Keith H. Ecke.

Also through Feldbruegge, Wisconsin Energy responded by arguing it can’t be sued for the acts of its subsidiaries. Wisconsin Energy owns 100 percent of the stock of WEPCo.

Finally, on Oct. 29, 2008, Tews filed a second amended complaint, naming WEPCo as a defendant, and again alleging that it had its principal place of business at the same Michigan St. address, and had Ecke as its registered agent.

Through its attorney, Feldbruegge, WEPCo moved for summary judgment based on the statute of limitations.

In opposing the motion, Tews filed a response that included no affidavits, but only documents from the Wisconsin Department of Financial Institutions website.

Four days before the hearing, Tews added affidavits to support the accuracy of the documents.

The circuit court granted summary judgment in favor of WEPCo, because of the failure to timely file a response that included affidavits. Section 802.08(2) requires all affidavits to be filed five business days before the date of the hearing.

The Court of Appeals affirmed, but the Supreme Court reversed in an opinion by Justice Ann Walsh Bradley.

Summary judgment

The court first held that a party can prevail on a summary judgment motion without filing any affidavit.

The court noted that sec. 802.08(2) expressly provides that motions for summary judgment and responses should be filed “together with the affidavits, if any.”

Similarly, the old Federal Rules of Civil Procedure, on which Wisconsin’s are based, state that parties can file their motions “with or without supporting affidavits.”

Accordingly, the court held that, while summary judgment motions will typically require evidence beyond the pleadings, there is no statutory requirement for it.

Relation-back Doctrine

Second, the court held that the complaint naming WEPCo as a defendant related back to the earlier complaint naming Wisconsin Energy.

The court found, based only on the pleadings, that, “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.”

Although WEPCo denied that the Michigan St. address was its principal place of business, it admitted that it had offices there.

The court also found a recent opinion by the U.S. Supreme Court, addressing the federal rules, to be directly on point. Krupski v. Costa Crociere, 130 S.Ct. 2485 (2010).

The plaintiff in Krupski sued a subsidiary of the proper defendant, and did not name the proper defendant until after the statute of limitations had expired.

Nevertheless, the U.S. Supreme Court held that the amended complaint related back to the first, based in part on the fact that the two entities had the same attorney. Because of that, the court concluded, the defendant should have known that, but for an error, it would have been named as the defendant in the first complaint.

Applying Krupski to the case at bar, the Wisconsin Supreme Court held that it could impute knowledge to WEPCo, based on its shared offices, agents, and attorneys.

Before concluding, though, the court cautioned, “It bears emphasis that, even though the statute does not always require affidavits to be filed in a proceeding for summary judgment, the best and safest practice is to do so. Attorneys who fail to support or oppose a motion for summary judgment with an affidavit do so at their own peril.”

The dissent

Justice Annette Kingsland Ziegler dissented in part, in an opinion joined by Justices N. Patrick Crooks and Michael Gableman.

The dissent agreed that the plain language of sec. 802.08(2) permits a motion for summary judgment to be made on the basis of the pleadings alone.

However, the dissenters disagreed that knowledge could be imputed to WEPCo without additional submissions.

The dissenters argued that such knowledge can’t be inferred, and that the majority opinion requires circuit courts “to scour the pleadings to detect any conceivable facts that permit an inference” that knowledge is present.

What the Court Held

Case: Tews v. NHI, LLC, No. 2009AP828

Issues: Must submissions on summary judgment include affidavits?

Can the elements of the relation-back doctrine be inferred without documents supported by affidavit?

Holdings: No. The plain language of the statute permits a decision based on the pleadings alone.

Yes. Knowledge that it was the proper party can be imputed to a defendant.

Attorneys: For Plaintiff: Raymond E. Krek, Chad T. Buehler, Jefferson; For Defendant: John E. Feldbruegge, Kelly J. Noyes, Milwaukee.

David Ziemer can be reached at david.ziemer@wislawjournal.com.

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