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2010AP2203 Ferris v. Location 3 Corp.

By: WISCONSIN LAW JOURNAL STAFF//August 10, 2011//

2010AP2203 Ferris v. Location 3 Corp.

By: WISCONSIN LAW JOURNAL STAFF//August 10, 2011//

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Torts
Corporations; individual liability

Individuals may be held personally liable if they engaged in tortious conduct, regardless of whether they acted on behalf of a corporation when they did so.

“[W]e address the basis of the trial court’s decision—whether the defendants may be held liable as individuals in addition to Location 3’s alleged corporate liability. Ferris contends that they may under Oxmans’. He cites to the following passage: An individual is personally responsible for his own tortious conduct. A corporate agent cannot shield himself from personal liability for a tort he personally commits or participates in by hiding behind the corporate entity; if he is shown to have been acting for the corporation, the corporation also may be liable, but the individual is not thereby relieved of his own responsibility. Oxmans’, 86 Wis. 2d at 692-93 (citing 3A William A. Meade Fletcher, Cyclopedia of the Law of Corporations § 1143) (additional citation omitted). Sauer, Lechner, and Mason did not directly respond to that argument in their appellate brief. In their summary judgment brief, they contended that the Oxmans’ passage cited by Ferris as authority is dicta, that the issue before the Oxmans’ court was personal jurisdiction rather than veil piercing, and that Ferris pled no grounds to support piercing the corporate veil. See Oxmans’, 86 Wis. 2d at 686-87. This might be a closer question if not for case law since Oxmans’.”

“Shortly after Oxmans’, the supreme court reiterated the same principle and even extended it to some nontortious conduct by agents: The general rule is that the agent, as well as the principal for whom he is acting is responsible for the tortious acts of the agent. In such situations the corporate shield protects only those who would otherwise be vicariously liable, not those whose own conduct is called into question. In this case it is their own conduct for which appellants are being held responsible, i.e., their decision to terminate the business. While that conduct is by no means tortious, it is conduct which would serve as a basis of recovery against the very party for whom appellants claim to have acted, if we were to accept their contention. Under such circumstances we think it unwise to ignore the fact of who actually acted on behalf of the corporation. Hanmer v. DILHR, 92 Wis. 2d 90, 97-98, 284 N.W.2d 587 (1979) (citations omitted). Then, more recently, in Stuart, 308 Wis. 2d 103, ¶¶41-42, the supreme court applied the same principle to cases where an individual acting on behalf of a corporation violates the Home Improvement Practices Act. When the supreme court intentionally takes up and announces the law three times, we think it clear that the initial statement was not dicta. But even if we had come to the opposite conclusion, the supreme court has made it clear that we may not dismiss statements from its opinions as dicta. See Zarder v. Humana Ins. Co., 2010 WI 35, ¶¶52-58, 324 Wis. 2d 325, 782 N.W.2d 682.”

Reversed.

Recommended for publication in the official reports.

2010AP2203 Ferris v. Location 3 Corp.

Dist. II, Waukesha County, Ramirez, J., Brown, J.

Attorneys: For Appellant: Stevens, Daniel W., Brookfield; Kuss, Rudolph J., Brookfield; For Respondent: Murn, Donald J., Waukesha; Martin, Michelle E., Waukesha; Czuta, Joshua B., Waukesha

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