Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bleecker v. Cahill

Court of Appeals of Wisconsin, District II

March 15, 2017

Lee M. Bleecker, Plaintiff-Appellant,
v.
Terence P. Cahill, Brewer & Cahill, LLP and The Hanover Insurance Company, Defendants-Respondents.

         APPEAL from an order of the circuit court for Waukesha County No. 2014CV1240 DAVID WAMBACH, Judge. Reversed and cause remanded.

          Before Neubauer, C.J., Gundrum and Hagedorn, JJ.

          GUNDRUM, J.

         ¶1 Lee Bleecker appeals from the circuit court's grant of summary judgment to Terence P. Cahill, Brewer & Cahill, LLP and The Hanover Insurance Company.[1] He contends the court erred in concluding his legal malpractice claim was barred on the basis the statute of limitations began to run in 2003 when he signed a lease agreement on which Cahill advised him, as opposed to in 2013 when he incurred actual damages in relation to the agreement. We agree with Bleecker that his cause of action accrued in 2013 and this suit was timely filed; we reverse.

         Background

         ¶2 In 2003, Lee Bleecker sought legal assistance from Attorney Terence Cahill in reviewing a lease between Bleecker and Aurora Medical Group, Inc., to build a clinic on Bleecker's land. Under the terms of the lease, Bleecker was to finance the construction costs and Aurora would reimburse Bleecker for those costs pursuant to an amortization schedule. Aurora agreed to an initial term often years with three, five-year options to extend the term of the lease. Bleecker claims he told Cahill it was very important that he recover all of his construction costs and Cahill assured him the lease would accomplish that. In contrast, Cahill claims he informed Bleecker the amortization payments would end if Aurora terminated the lease at the end of the initial term often years.

         ¶3 The lease provided that "[i]n addition to Base Rent, during the initial 15 years of the Lease (including the first five-year renewal term), [Aurora] shall also pay to Landlord a monthly payment (the "Amortization Payment") determined by amortizing the total cost incurred in payments." The amortization clause also stated, "No Amortization Payment shall be due or payable after the first 180 months [15 years] or such earlier date on which the Lease terminates.'" (Emphasis added.) Cahill faxed the final version of the lease to Bleecker, indicating his approval. In October 2003, Bleecker signed the lease without reviewing it.

         ¶4 In 2013, Aurora informed Bleecker it was terminating the lease. Bleecker claims it was then that he first learned the lease permitted Aurora to terminate it at the end of the first term of ten years without being obligated to make the remaining amortization payments.

         ¶5 In June 2014, Bleecker filed this lawsuit alleging Cahill had committed legal malpractice with regard to his legal assistance in 2003 and Bleecker incurred financial damage as a result. The circuit court granted Cahill summary judgment on the basis that Bleecker's claim accrued when the lease was signed in 2003, "before the ink was even dry, " and thus the statute of limitations had run. Bleecker appeals, arguing the claim did not accrue until Aurora declined to extend the term of the lease in 2013 and with that was no longer obligated to make the amortization payments.[2]

         Discussion

         ¶6 Our review of a circuit court's decision on summary judgment is de novo. Behrendt v. Gulf Underwriters Ins. Co., 2009 WI 71, ¶11, 318 Wis.2d 622, 768 N.W.2d 568. Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id.

         ¶7 Bleecker argues the circuit court erred in concluding his claim accrued when he signed the lease in 2003. The court erred, he contends, because he did not suffer any actual damage at that time and indeed would not have suffered any damage if Aurora had chosen in 2013 to extend the term of the lease for another five years instead of terminating it. Bleecker maintains that for a claim to accrue, damage has to have occurred or be "reasonably certain" to occur, and he asserts that until Aurora notified him in 2013 that it would not extend the term of the lease, any damage resulting from Cahill's alleged malpractice in 2003 was speculative, a "mere possibility." Bleecker is correct.

         ¶8 For a claim to accrue, it must be "capable of present enforcement, " which does not occur "until the plaintiff has suffered actual damage." Hennekens v. Hoerl, 160 Wis.2d 144, 152, 465 N.W.2d 812 (1991). "Actual damage is harm that has already occurred or is reasonably certain to occur in the future. Actual damage is not the mere possibility of future harm." Id. at 152-53 (citation omitted). Several cases guide us in our determination as to when Bleecker suffered actual damage in this case.

         ¶9 In Meracle v. Children's Serv. Soc'y, 143 Wis.2d 476, 478, 421 N.W.2d 856 (Ct. App. 1988), plaintiffs adopted a child through an adoption agency, specifically requesting "a 'normal, healthy child.'" Prior to the completion of the adoption in November 1980, the agency informed plaintiffs the child's paternal grandmother had died of Huntington's Disease; however, the agency assured plaintiffs the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.