2020 WI 7
SUPREME COURT OF WISCONSIN CASE NO.: 2017AP1962
COMPLETE TITLE: Richard A. Mueller, Plaintiff-Appellant, Joseph L. Ford, III, Plaintiff-Co-Appellant, v. TL90108, LLC, Defendant-Respondent-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 383 Wis. 2d 740,917 N.W.2d 551 PDC No:2018 WI App 52 - Published
OPINION FILED: February 4, 2020 SUBMITTED ON BRIEFS: ORAL ARGUMENT: November 4, 2019
SOURCE OF APPEAL: COURT: Circuit COUNTY: Milwaukee JUDGE: Rebecca F. Dallet
JUSTICES: HAGEDORN, J., delivered the majority opinion of the Court, in which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, REBECCA GRASSL BRADLEY, and KELLY, JJ., joined. NOT PARTICIPATING: DALLET, J.
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs filed by Stephen E. Kravit, Brian T. Fahl, and Kravit, Hovel & Krawczyk S.C., Milwaukee; joined by Lawrence H. Heftman, Robert Middleton, and Schiff Hardin LLP, Chicago, Illinois. There was an oral argument by Lawrence H. Heftman.
For the plaintiff-appellant, there was a brief filed by Matthew V. Fisher, Brian C. Tokarz, and Meissner Tierney Fisher & Nischols S.C., Milwaukee. There was an oral argument by Matthew V. Fisher.
For the plaintiff-co-appellant, there was a brief filed by Joseph L. Ford, Boca Raton, Florida. There was an oral argument by Joseph L. Ford.
2 2020 WI 7 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2017AP1962 (L.C. No. 2017CV867)
STATE OF WISCONSIN : IN SUPREME COURT
Richard A. Mueller,
Plaintiff-Appellant,
Joseph L. Ford, III, FILED Plaintiff-Co-Appellant, FEB 4, 2020 v. Sheila T. Reiff TL90108, LLC, Clerk of Supreme Court
Defendant-Respondent-Petitioner.
HAGEDORN, J., delivered the majority opinion of the Court, in which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, REBECCA GRASSL BRADLEY, and KELLY, JJ., joined.
DALLET, J., did not participate.
REVIEW of a decision of the Court of Appeals. Modified, and
as modified, affirmed and cause remanded.
¶1 BRIAN HAGEDORN, J. A late 1930s Talbot Lago is
considered by some one of the most beautiful and innovative cars No. 2017AP1962
in the world. This collector's gem sang such a siren song that it
became the subject of an international smuggling effort at the
heart of today's case. The Talbot Lago here——a 1938 model——
mysteriously disappeared from a Milwaukee business in 2001. It
reappeared in 2015 after being purchased in Europe by TL90108, LLC
(TL). When TL tried to obtain title in Illinois, it triggered a
hit on a stolen vehicle report.
¶2 After hearing that the prized vehicle had turned up,
Plaintiffs Richard Mueller and Joseph Ford III demanded its return
from TL, claiming to be the rightful owners. When TL did not
oblige, Mueller and Ford brought an action for replevin1 seeking
possession of the vehicle and damages. The circuit court, however,
granted TL's motion to dismiss the complaint on the grounds that
the claim was barred by the applicable six-year statutes of repose.
Wis. Stat. §§ 893.35, 893.51(1) (2017-18).2 The court of appeals
reversed, holding that when Mueller and Ford demanded TL return
the vehicle, this triggered a wrongful detention claim and
restarted the six-year repose clock. ¶3 The core issue we address today is whether the six-year
statutes of repose bar Mueller and Ford's action for replevin.
More specifically, we address whether a wrongful detention claim
may exist for previously converted property, and if so, when a
replevin cause of action based on a subsequent wrongful detention
1An additional claim was raised that we are not addressing, as explained further below. 2All subsequent references to the Wisconsin Statutes are to the 2017-18 version.
2 No. 2017AP1962
accrues. We conclude that under the plain language of the statutes
of repose and our cases, the true owner can maintain a replevin
action for wrongful detention against a subsequent purchaser of
converted property. We hold that under Wis. Stat. §§ 893.35 and
893.51(1), a cause of action for replevin based on wrongful
detention under facts like those alleged here accrues when the
subsequent purchaser obtains the property; no demand is necessary.
¶4 Thus, for purposes of the motion to dismiss, the replevin
action based on TL's alleged wrongful detention of the vehicle
accrued when TL obtained (and thereby wrongfully detained) the
vehicle. TL purchased the prized vehicle sometime in 2015. Hence,
Mueller and Ford's cause of action for replevin is not barred by
the relevant statutes of repose.
I. BACKGROUND
¶5 On the morning of March 4, 2001, Roy Leiske arrived at
his place of business and found the front door curiously unlocked.3
When he entered, he discovered that his mid-restoration 1938 Talbot Lago, then worth an estimated one million dollars, was gone.
Leiske reported this to the Milwaukee Police Department, which
entered a stolen vehicle report into a national database.
3 The facts in this section are taken from the complaint. When reviewing a motion to dismiss, "all facts alleged in the complaint, as well as all reasonable inferences from those facts, are accepted as true." Kaloti Enter., Inc. v. Kellogg Sales Co., 2005 WI 111, ¶11, 283 Wis. 2d 555, 699 N.W.2d 205 (citing Ollerman v. O'Rourke Co., 94 Wis. 2d 17, 24, 288 N.W.2d 95 (1980)).
3 No. 2017AP1962
¶6 In 2005, Leiske died and bequeathed the vehicle to
Mueller. Mueller later sold a percentage of ownership in the
missing vehicle to Ford. Both attempted——without success——to
locate the vehicle.
¶7 At around the same time, in either 2005 or 2006, the
vehicle was transported from the United States to Europe. In 2015,
TL purchased the vehicle through an international automobile
broker. TL then arranged for the vehicle to be transported to the
United States, and applied for title in Illinois in 2016. The
application, however, triggered a hit on the 2001 stolen vehicle
report. The Milwaukee Police Department confirmed to Illinois
officials the vehicle had been reported stolen, and Illinois did
not issue title to TL.
¶8 Upon learning of the vehicle's reappearance, Mueller and
Ford sent TL a demand to return the vehicle. When TL refused the
demand, Mueller and Ford filed a two-count complaint, bringing
both a replevin action to obtain possession of the vehicle and
recover damages, and a declaratory judgment as to their ownership and possession of the vehicle. TL moved to dismiss Mueller and
Ford's claims, arguing they were timed-barred by the applicable
statutes of repose, Wis. Stat. §§ 893.35 and 893.51(1).
¶9 After entertaining multiple briefs and hearings, the
circuit court granted TL's motion to dismiss on the grounds that
the replevin cause of action accrued in 2001 when the vehicle was
stolen; the clock did not restart when the property changed hands;
and therefore, the replevin action was barred by the six-year statutes of repose in Wis. Stat. §§ 893.35 and 893.51(1). It also 4 No. 2017AP1962
dismissed the declaratory judgment action, reasoning that a cause
of action for ownership cannot exist apart from replevin.4
¶10 The court of appeals reversed. It concluded that the
statutes of repose recognize separate claims for conversion and
wrongful detention. The court of appeals reasoned that while a
conversion claim accrued in 2001 when the vehicle was allegedly
stolen, a separate wrongful detention claim accrued when TL refused
Mueller and Ford's demand to return the vehicle. Mueller v.
TL90108, LLC, 2018 WI App 52, ¶29, 383 Wis. 2d 740, 917
N.W.2d 551. The court of appeals also remanded the cause for a
ruling on Mueller and Ford's declaratory judgment action, stating
that an action for a declaration of ownership differs from a
replevin action for possession. Id., ¶30 & n.5. We granted TL's
petition for review.
II. DISCUSSION
¶11 The issue before us is whether the replevin action is
barred by the six-year statutes of repose provided in Wis. Stat. §§ 893.35 and 893.51(1).5 As this presents a question of law
4 The circuit court provided Mueller and Ford time to amend their complaint; however, no amended complaint was filed. The court entered a final order dismissing the complaint with prejudice. 5 Because we affirm the court of appeals' determination that Mueller and Ford's replevin action is not barred by the statutes of repose, we need not address Mueller's alternative argument that "the doctrine of equitable estoppel by fraudulent concealment prevents TL from asserting a repose defense."
5 No. 2017AP1962
arising from a motion to dismiss based on a question of statutory
interpretation, our review is de novo. Doe 56 v. Mayo Clinic
Health Sys.——Eau Claire Clinic, Inc., 2016 WI 48, ¶14, 369
Wis. 2d 351, 880 N.W.2d 681 (motion to dismiss reviewed de novo);
State v. Pinder, 2018 WI 106, ¶23, 384 Wis. 2d 416, 919 N.W.2d 568
(statutory interpretation reviewed de novo).
A. Replevin and Repose
¶12 Replevin is an action for possession where the factual
question that must be resolved is "which party is entitled to
possession of the disputed property." Ford Motor Co. v. Lyons,
137 Wis. 2d 397, 468, 405 N.W.2d 354 (Ct. App. 1987). To succeed
on a replevin claim, the court or jury must find:
(a) Whether the plaintiff is entitled to possession of the property involved.
Ford separately argued that "wrongful taking" in Wis. Stat. § 893.35 does not include theft; that a plaintiff must know who took the property before the repose period provided in § 893.35 goes into effect; and that § 893.35, if it includes theft, must toll the limitation period as it is tolled in criminal theft proceedings. While we need not and therefore do not address Ford's first and third arguments, we reject Ford's second argument as explained below.
Additionally, TL asks us to affirm the dismissal of the declaratory judgment action, in which Mueller and Ford seek a declaration that they "are the full and absolute owners of the Vehicle and entitled to its possession." TL's arguments in support of dismissing this claim rely principally on the premise that the statutes of repose bar Mueller and Ford's replevin action——a conclusion we reject, as explained below——and that a declaratory judgment cannot provide an additional pathway to relief. At this stage, breathing new life into Mueller and Ford's replevin action, we remand the claim for declaratory relief as well and express no opinion on its viability apart from replevin.
6 No. 2017AP1962
(b) Whether the defendant unlawfully took or detained the property involved.
(c) The value of the property involved.
(d) The damages sustained by the successful party from any unlawful taking or unjust detention of the property to the time of the trial. Wis. Stat. § 810.13(1). This statutory provision tracks the
requirements for replevin at common law. See Eldred v. Oconto
Co., 33 Wis. 133, 136 (1873) ("The verdict is as follows: 'The
jury severally on their oaths do say, that they find for the plaintiff, that he is the owner and lawfully entitled to the
possession of the property described in the complaint, that the
value thereof is $3,195.20, and that the plaintiff's damages for
the unlawful detention thereof is $301.31.'"). A party bringing
an action for replevin, then, may recover not only possession of
personal property, but also damages for its detention.
¶13 To that effect, the legislature has enacted two statutes
of repose——one regarding recovering possession of the property and
one with respect to damages. See Wis. Stat. § 893.35 ("action to
recover personal property"); Wis. Stat. § 893.51(1) ("action to
recover damages"). Mueller and Ford's complaint seeks both
possession of the vehicle and damages for its wrongful detention,
therefore we examine both §§ 893.35 and 893.51(1).6
6 Wisconsin Stat. § 893.35 provides:
An action to recover personal property shall be commenced within 6 years after the cause of action accrues or be barred. The cause of action accrues at the time the wrongful taking or conversion occurs, or the wrongful detention begins. An action for damage for wrongful taking, conversion or detention of personal 7 No. 2017AP1962
¶14 Wisconsin Stat. § 893.35 governs when a cause of action
for replevin seeking possession of personal property must be
brought. It provides: "An action to recover personal property
shall be commenced within 6 years after the cause of action accrues
or be barred." § 893.35. Wisconsin Stat. § 893.51(1) governs an
associated claim for damages: "an action to recover damages for
the wrongful taking, conversion or detention of personal property
shall be commenced within 6 years after the cause of action accrues
or be barred." § 893.51(1). Both statutes continue: "The cause
of action accrues at the time the wrongful taking or conversion
occurs, or the wrongful detention begins." §§ 893.35, 893.51(1).
¶15 Thus, the two provisions impose a six-year limit
starting from when (a) "the wrongful taking . . . occurs," (b) the
"conversion occurs," or (c) "the wrongful detention begins." Wis.
Stat. §§ 893.35, 893.51(1). It is plain from the text that each
of these are different causes of action, and therefore each could
have different dates from which the six-year clock starts to run.
Notice also that the plain language links the onset of the six-
property shall be commenced within the time limited by [Wis. Stat. §] 893.51.
And Wis. Stat. § 893.51(1) provides:
Except as provided in sub. (2), an action to recover damages for the wrongful taking, conversion or detention of personal property shall be commenced within 6 years after the cause of action accrues or be barred. The cause of action accrues at the time the wrongful taking or conversion occurs, or the wrongful detention begins.
8 No. 2017AP1962
year period to when the taking, conversion, or detention occurred;
the claims are not tied to the property itself.
¶16 Wisconsin Stat. §§ 893.35 and 893.51(1) are properly
described as statutes of repose, not statutes of limitation. A
statute of repose "provides that a cause of action must be
commenced within a specified amount of time after the defendant's
action which allegedly led to injury, regardless of whether the
plaintiff has discovered the injury or wrongdoing." Tomczak v.
Bailey, 218 Wis. 2d 245, 252, 578 N.W.2d 166 (1998). Though
similar, a statute of limitation focuses on the timeliness of an
injured party's claim rather than the underlying act or omission.
See Aicher ex rel. LaBarge v. Wis. Patients Comp. Fund, 2000 WI 98,
¶26, 237 Wis. 2d 99, 613 N.W.2d 849. Indeed, we previously called
§ 893.51(1) a statute of repose in Tomczak, and § 893.35 contains
the same language. Tomczak, 218 Wis. 2d at 259-60. With regard
to a wrongful detention claim, the statutes focus on when the
wrongful detention begins, not when the property owner discovers
or knows of the detention. This classification matters both because it is textually evident and because we explicitly disavowed
application of the discovery rule to statutes of repose in Tomczak.
Compare id. at 260, with Hansen v. A.H. Robins, Inc., 113
Wis. 2d 550, 560, 335 N.W.2d 578 (1983) (adopting a discovery rule
for statutes of limitation not already governed by a statutory
discovery rule under which tort claims are deemed to "accrue on
the date the injury is discovered or with reasonable diligence
should be discovered, whichever occurs first").
9 No. 2017AP1962
B. Replevin and Wrongful Detention
¶17 Everyone agrees that, based on the complaint, the
vehicle was converted in 2001. The statutes of repose measure six
years from when a conversion occurs, and thus, the opportunity to
bring an action for possession and damages based on a conversion
claim has long since passed. The question here, then, is whether
an action based on wrongful detention is separately available, and
if so, when that cause of action accrued.
¶18 TL asserts the only tort it can be liable for is
conversion. The thrust of its argument is that once property is
converted, the only claim that can be made regarding that property
is conversion. Further, citing Tomczak, TL posits that any
interpretation allowing the repose clock to restart following a
transfer of originally converted property to another would
effectively impose the very discovery rule this court barred from
use in statutes of repose. Consistent with this theory, TL
contends that a wrongful detention claim is available only when an
initially lawful possession becomes unlawful by exceeding the owner's original authorization. Playing out the logic, TL states
it could not possibly be wrongfully detaining the vehicle because
it never obtained Mueller and Ford's permission to possess the
vehicle in the first place. Mueller offers a different view. He
maintains that wrongful detention occurs when a defendant detains
property which the plaintiff is entitled to possess, and that
demand and refusal are not always necessary to trigger such a
claim.
10 No. 2017AP1962
¶19 Distilling all of this, the dispositive dispute between
the parties hinges on the nature of a wrongful detention claim
under the statutes of repose. The statutes themselves do not
define the relevant terms. However, the statutory terms
"conversion" and "wrongful detention" are technical phrases with
specific and distinct meaning in our common law, and we therefore
give them their accepted legal meaning. Wis. Stat. § 990.01(1)
("[T]echnical words and phrases and others that have a peculiar
meaning in the law shall be construed according to such meaning.");
State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58,
¶45, 271 Wis. 2d 633, 681 N.W.2d 110 ("Statutory language is given
its common, ordinary, and accepted meaning, except that technical
or specially-defined words or phrases are given their technical or
special definitional meaning."); see also Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 320
(2012) ("The age-old principle is that words undefined in a statute
are to be interpreted and applied according to their common-law
meanings."). While the parties spend considerable time citing treatises and delving into the common-law origins of a claim for
wrongful detention, we believe the meaning of these statutory terms
are best explained, and indeed controlled by, Wisconsin cases, not
those of other jurisdictions or scholarly collections of foreign
decisions.
¶20 Personal property is wrongfully detained when the
defendant "detains property when by law the plaintiff is entitled
to have it returned to him . . . ." Capitol Sand & Gravel Co. v. Waffenschmidt, 71 Wis. 2d 227, 232, 237 N.W.2d 745 (1976). While 11 No. 2017AP1962
a wrongful detention claim may arise when an initially lawful
possession becomes unlawful by exceeding the owner's
authorization7——the narrow definition TL embraces——our cases
demonstrate that this is not the only factual scenario that gives
rise to such a claim.
¶21 Eldred clearly demonstrates why TL's argument must fail,
and why the reasoning underlying the court of appeals' otherwise
correct decision must be modified. 33 Wis. 133. In Eldred,
someone removed logs from the eventual plaintiff's land and sold
the logs to a good faith purchaser. Id. at 139. The original log
owner filed a replevin action against the log purchaser for
"unlawful detention"8 of the logs. Id. at 139-40. This court was
asked to address whether "a demand is necessary before an action
to recover the logs can be maintained against the defendant." Id.
We concluded the original log owner (i.e., the plaintiff) could
maintain an "unlawful detention" claim because the defendant——
though a good faith purchaser——possessed something that was not
his. Id. at 141. No demand was necessary to trigger the claim. Id. ("[B]y proving a state of facts which renders a demand
See, e.g., Durham v. Pekrul, 104 Wis. 2d 339, 311 N.W.2d 615 7
(1981).
Our cases use the terms "unlawful detention" and "wrongful 8
detention" interchangeably. See, e.g., Korb v. Schroedel, 93 Wis. 2d 207, 211, 214, 286 N.W.2d 589 (1980) (characterizing a circuit court's finding of "unlawful detention" as "wrongful detention"); Capitol Sand & Gravel Co. v. Waffenschmidt, 71 Wis. 2d 227, 231, 237 N.W.2d 745 (1976) (noting the jury was asked if "there had been wrongful or unlawful detention"); Ronge v. Dawson, 9 Wis. 222 (*246) (1859) (using "wrongful detention" and "unlawful detention").
12 No. 2017AP1962
unnecessary, he proves the gravamen of his action, to wit, the
unlawful detention of the logs.").
¶22 Neither party asks us to overrule or modify Eldred, and
applying it here defeats TL's repose argument. The import of
Eldred is this: (1) a wrongful detention claim is separate from
a conversion claim; (2) a wrongful detention claim may arise
against a possessor of previously converted or wrongfully taken
property;9 and (3) in situations with analogous facts, a wrongful
detention claim is available and accrues at the time the property
is obtained——no demand is necessary.10 This is Wisconsin's common
law heritage, and is therefore appropriately incorporated into our
interpretation of "wrongful detention" in Wis. Stat. §§ 893.35 and
893.51(1).
¶23 Applying these principles, we hold that a "wrongful
detention" in Wis. Stat. §§ 893.35 and 893.51(1) may arise against
a possessor of previously converted property as in Eldred.
9Our cases also stand for the proposition that a third-party purchaser may be liable for conversion if the purchaser knows the property has been stolen. See Smith v. Briggs, 64 Wis. 497, 499, 25 N.W. 558 (1885). Remembering that it is the allegations in the complaint that establish the operative facts on a motion to dismiss, Mueller and Ford have not alleged TL knew that the property was stolen, rendering the holding of Smith inapplicable here. Moreover, nothing in Smith stands for the proposition that a wrongful detention claim is precluded; it simply establishes that a claim for conversion is an available option under its facts.
In other factual scenarios not relevant here, demand may 10
trigger the accrual of a wrongful detention claim. See Capitol Sand, 71 Wis. 2d at 231-32 (noting a demand may trigger a wrongful detention claim where the initially lawful possession becomes unlawful by exceeding the owner's authorization).
13 No. 2017AP1962
Therefore, Mueller and Ford may maintain a cause of action for
replevin based on a claim of wrongful detention against TL.
¶24 The court of appeals agreed, but concluded the wrongful
detention began when TL denied Mueller and Ford's demand for return
of the vehicle. Mueller, 383 Wis. 2d 740, ¶29. The court of
appeals' conclusion is incorrect for at least two reasons. First,
we agree with TL that this determination in effect imposes a sort
of discovery rule on Wis. Stat. §§ 893.35 and 893.51(1), standing
at direct odds with this court's explicit prohibition against doing
just that. Tomczak, 218 Wis. 2d at 260. Allowing the cause of
action to accrue at the time of demand could open the door to
manipulation by a plaintiff who may choose when to make a demand
based on a potential deadline, providing less certainty to property
owners. Second, and more to the point, under Eldred, neither a
demand nor its refusal is necessarily required to initiate a
replevin action based on wrongful detention. 33 Wis. at 141.
Rather, the wrongful detention claim under the facts alleged here
accrued at the time TL obtained possession of the vehicle. ¶25 Applying Eldred and the plain language of Wis. Stat.
§§ 893.35 and 893.51(1) to the facts of this case, Mueller and
Ford may maintain a cause of action for replevin based on TL's
alleged wrongful detention of the vehicle. TL's wrongful detention
began at the time it acquired the vehicle in 2015, not when Mueller
and Ford issued a demand for its return. For these reasons,
Mueller and Ford's replevin action was brought within the six-year
repose period provided by §§ 893.35 and 893.51(1), and the order dismissing the complaint on these grounds must be reversed. 14 No. 2017AP1962
III. CONCLUSION
¶26 We agree with the court of appeals that Mueller and
Ford's complaint is not barred by the six-year statutes of repose,
but modify its reasoning because TL's wrongful detention began
when TL obtained the vehicle——not when Mueller and Ford demanded
its return. On this basis, we affirm the decision of the court of
appeals reversing the circuit court's dismissal of the complaint.
By the Court.—The decision of the court of appeals is
modified, and affirmed as modified, and the cause is remanded to
the circuit court for further proceedings consistent with this
opinion.
¶27 REBECCA FRANK DALLET, J., did not participate.
15 No. 2017AP1962