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06/27/83 SOL SEGALL v. MAX HURWITZ

June 27, 1983

SOL SEGALL, PLAINTIFF-APPELLANT,
v.
MAX HURWITZ, PETER J. MILLER, ARCHIE D. HORNE, JR., DAVID B. HOFF, ROGER K. GAUMNITZ, OPITZ REALTY, INC., AND THE PARK BANK, DEFENDANTS-RESPONDENTS



Appeal from a judgment of the Circuit Court for Dane County: William F. Eich, Judge.

Gartzke, P.j., Foley, J., and W.l. Jackman, Reserve Judge.

The opinion of the court was delivered by: Gartzke

Plaintiff Segall appeals from a summary judgment dismissing his complaint against Peter Miller, Archie Horne, Jr., David Hoff, Roger Gaumnitz, Max Hurwitz and The Park Bank. We conclude that the trial court erred in applying the statute of limitations to bar claims against Miller and Horne. We reverse the judgment and remand for further proceedings as to those claims and otherwise affirm.

This action was commenced May 23, 1979 when Segall's complaint was filed. It expressly sets forth six separately stated claims for relief. It alleges two claims for breach of a contract by which Segall purchased a railroad salvage business known as "Miller's General Merchandise" from Miller and Horne. Under that contract, Segall acquired the right to use the name "Miller's General Merchandise" and Miller and Horne agreed not to compete with the business in Dane County for five years. Segall alleged that Miller and Horne violated his right to use the name and the agreement not to compete.

The remaining separately stated four claims pertain to a conspiracy among all the defendants. Segall alleges that the defendants conspired to: (1) defraud him; (2) injure his business reputation; (3) interfere with his contractual relations with defendant Park Bank and the Borden Company; and (4) prevent him from competing in the railroad salvage business in violation of state and federal antitrust laws.

Defendants' answers consist of general denials and plead the statute of limitations. The trial court held that the longest of the statutes of limitation applicable to the claims alleged is six years, citing secs. 893.93(1) (a), 893.93(1) (b) and 893.53, Stats. It held on the basis of defendants' motions for summary judgment that six years had run on each claim and therefore dismissed the complaint.

Summary judgment methodology is described in Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473, 476-77 (1980). We need not repeat it or apply its initial steps. It is undisputed that the complaint states claims for relief (although a dispute exists whether a seventh claim is adequately pleaded) and that the pleadings show that factual issues exist. To support their motions for summary judgment, the defendants have collectively shown by affidavit that over six years elapsed between their acts, as alleged in the complaint, which were arguably tortious and May 23, 1979, when Segall filed this action. The trial court assumed that the facts averred by Segall in his opposing affidavit were true and held that his claims were barred by the statute of limitations.

We agree with Segall that the first issue on appeal is a legal question: whether the trial court correctly applied the statute of limitations to the facts alleged by him and supported by his exhibits and affidavits. We proceed first to his conspiracy claims and then to his contract claims.

1. Conspiracy Claims

A. Facts

Segall's affidavit describes the following uncontroverted factual history relevant to his four conspiracy claims, a history we assume is true for summary judgment analysis:

When Segall bought the salvage business, he needed a new location for its operations. For that purpose, he and Hurwitz, as joint venturers, offered to buy the Borden building in Madison for $140,000. The Borden Company accepted their offer October 4, 1972.

Hoff, then executive vice-president of the Park Bank, told Segall October 18, 1972 that the bank could give him a $50,000 line of credit. Segall told Hoff he needed $25,000 on a sixty-day note. Segall signed the note that day. The note was due December 18, 1972 and was secured by Segall's other Park Bank accounts.

At the request of Segall and Hurwitz, October 16, 1972 Gaumnitz, a real estate broker affiliated with Opitz Realty, *fn1 appraised the Borden building at $210,000. October 30, 1972 Gaumnitz offered to purchase the building from the Borden Company for $155,000. November 13, 1972, at the request of Roger Koby, whom plaintiff describes as an unnamed co-conspirator, Gaumnitz appraised the Borden building as an office facility at $690,000.

November 14, 1972 the Park Bank improperly closed a number of Segall's accounts without his knowledge or authorization. It reopened the accounts a short time later. November 15, 1972 Segall and Hurwitz accepted Koby's offer to purchase the Borden building from them for $175,000, contingent on their negotiating a leaseback arrangement which would permit Segall to use part of the building for his business. November 17, 1972 Hoff signed an affidavit alleging that Segall had defrauded the bank, in support of an order requiring Segall to show cause why his business should not be put into receivership.

On or about November 19, 1972 Segall discovered writings by Hurwitz which indicated he had conspired with the other defendants to defame and force Segall to release his interest in the Borden building. November 20, 1972 Hoff called the $25,000 note on grounds that the Park Bank deemed itself insecure.

Hoff and Koby attended Segall's November 22, 1972 closing on the Borden building. Hoff told Segall at the closing that the Park Bank would not finance Segall's purchase of the building unless Segall immediately turned the building over to Koby. Segall and Koby could not work out a satisfactory leaseback arrangement, and the closing was aborted.

November 24, 1972 the Park Bank commenced receivership proceedings against Segall, based on Hoff's affidavit. November 26, 1972 Hurwitz physically attacked Segall at his office, demanded he surrender Hurwitz' writings he had found, and threatened him with a knife.

Segall told Hoff that he could not appear at the initial receivership hearing set for December 1, 1972. Because Hoff told him that nothing would happen at the hearing, Segall did not attend. Hurwitz, however, was appointed receiver at that hearing, although he had no experience in running a railroad salvage business. At least twice during the receivership the Park Bank offered and then failed to extend credit to Segall to remedy his financial situation. December 21, 1972 the receiver sold the physical assets of Segall's business to Horne, who was doing business with Miller. During the receivership, Miller and Hurwitz told Segall that Miller, Hurwitz, Hoff and the Park Bank would stick together to run him out of town.

In January 1973 Miller signed a criminal complaint falsely charging Segall with threatening to bomb Miller's home. All the defendants concurred in Miller's action. Hurwitz told the other defendants that the criminal charge would force Segall to sign off his interest in the Borden building. Miller and Hurwitz told Segall that Miller would drop the charge if Segall released his interest in the Borden building and convinced Segall's father to cancel a $10,000 personal note Hurwitz had signed. Hurwitz told Miller that his wife would file another charge to exert more pressure on Segall. Miller testified falsely at the criminal trial that nobody would do business with Segall and that Segall had threatened to bomb Miller's home to force him to invest in a business Segall owned. Segall was acquitted of the criminal charge October 5, 1973.

In January 1973 Hurwitz and Miller told certain of Segall's business associates that Segall was dishonest and crazy.

Koby sued Segall to acquire the Borden building. May 24, 1973 the Dane County court ordered Segall to sell the Borden building to Koby. A judgment entered in 1974 ...


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