Abuse of Discretion – Declaratory Judgment Motion

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WI Court of Appeals – District III

Case Name: Superior Silica Sands, LLC., et al., v. Herman Grant Company, et al., 

Case No.: 2018AP2437

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Abuse of Discretion – Declaratory Judgment Motion

Superior Silica Sands (Superior) contracted with Market & Johnson (M&J) to construct a dry sand processing plant in Barron, Wisconsin (the Barron Plant). The parties’ contract contained a limited remedy provision, which limited the damages Superior could recover from M&J and its subcontractors. M&J, in turn, contracted with Herman Grant Company, Inc., (Herman Grant) to build a sand dryer for the Barron Plant.

Superior deemed the sand dryer to be deficient in several respects, and it ultimately commenced this lawsuit against Herman Grant and its insurers. The circuit court granted Herman Grant’s motion for a declaratory judgment and entered an order stating that, by virtue of the limited remedy provision, Superior was barred from “recovering damages for lost profits, repair costs, and loss adjustment and professional fees.” Superior then voluntarily dismissed its contract and tort claims against Herman Grant.

Superior now appeals, arguing the circuit court erroneously exercised its discretion by granting Herman Grant’s declaratory judgment motion. Herman Grant disagrees, and it also argues, in the alternative, that Superior’s argument is moot because Superior voluntarily dismissed its contract and tort claims after the court granted Herman Grant’s declaratory judgment motion. We reject Herman Grant’s mootness argument. We agree with Herman Grant, however, that the court properly granted its declaratory judgment motion. We therefore 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.