Lee M. Bleecker, Plaintiff-Appellant,
Terence P. Cahill, Brewer & Cahill, LLP and The Hanover Insurance Company, Defendants-Respondents.
from an order of the circuit court for Waukesha County No.
2014CV1240 DAVID WAMBACH, Judge. Reversed and cause remanded.
Neubauer, C.J., Gundrum and Hagedorn, JJ.
Lee Bleecker appeals from the circuit court's grant of
summary judgment to Terence P. Cahill, Brewer & Cahill,
LLP and The Hanover Insurance Company. 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.
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.
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.
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.
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
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.
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
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
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 ...