Purchase and Escrow Agreement – Indemnification Claims

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WI Court of Appeals – District II

Case Name: David J. Drury v. Poblocki Holdings, LLC, et al

Case No.: 2018AP532

Officials: Reilly, P.J., Gundrum and Hagedorn, JJ.

Focus: Purchase and Escrow Agreement – Indemnification Claims

Poblocki Holdings, LLC, et al. (Poblocki) appeal from an order granting summary judgment to David J. Drury, et al. (Drury). Poblocki challenges both the grant of summary judgment and the circuit court’s earlier dismissal of its counterclaims. The issues in this case largely turn on the interpretation of the parties’ Purchase Agreement and Escrow Agreement. This too is a matter that we review de novo. See American Family Mut. Ins. Co. v. Cintas Corp. No. 2, 2018 WI 81, ¶10, 383 Wis. 2d 63, 914 N.W.2d 76 (the interpretation of a contract presents a question of law). The final issue that we consider is the circuit court’s grant of summary judgment. As noted, the court concluded that Poblocki’s notice of claim to the escrow agent was untimely and that Drury was entitled to the funds. Poblocki concedes that its notice was untimely under the Escrow Agreement, however, it maintains that the funds should nevertheless remain in escrow pending a final resolution of its indemnification claims against Drury.

We are not convinced that the Purchase Agreement requires the escrow agent to retain funds for a period longer than the Escrow Agreement allows. If successful with its indemnification claims, Poblocki can still recover fully against the promissory note between the parties. It just cannot recover against the escrow funds which must be disbursed. That is what the parties bargained for, and we will not rewrite their agreements for them. We affirm.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.