Richard A. Mueller, Plaintiff-Appellant, Joseph L. Ford, III, Plaintiff-Co-Appellant,
TL90108, LLC, Defendant-Respondent.
from an order of the circuit court for Milwaukee County No.
2017CV867REBECCA F. DALLET, Judge. Reversed and cause
Brennan, Brash and Dugan, JJ.
Plaintiffs Richard A. Mueller and Joseph L. Ford, III, appeal
an order granting TL90108, LLC's (TL) motion to dismiss
their complaint, filed in 2017, seeking replevin and
declaratory judgment. Plaintiffs sought to recover possession
of a 1938 Talbot Lago, a vintage car worth more than seven
million dollars. The car and related documents including the
title had been reported stolen on March 4, 2001, when the
owner discovered that they were missing from his Milwaukee
garage. Milwaukee police investigated and discovered
fraudulent documents that had been used to ship the car to
Europe. Fifteen years later, TL applied for title to the car
in Illinois after purchasing the car through international
auto brokers, and the application triggered a hit in the
stolen car database. Before plaintiffs filed this action,
they had made an unsuccessful demand on TL for the return of
The trial court held that under WIS. STAT. § 893.35
(2015-16), which states that the cause of action
accrues "at the time the wrongful taking or conversion
occurs, or the wrongful detention begins[, ]" the cause
of action accrued when the car was converted by the unknown
thief in 2001, and the six-year time limitation began to run
"at the time of the wrongful taking or conversion, which
was when the car was stolen." The trial court held that
because this action was not commenced within that time limit,
it is barred under § 893.35.
We hold that this cause of action accrued at the time of the
wrongful detention, not wrongful taking or
conversion, when TL declined to return the car when
plaintiffs demanded it. Because the action was commenced
within six years of the time the cause of action accrued, it
is not time-barred. We therefore reverse and remand for
further proceedings consistent with our decision. Because we
decide this case on statutory grounds, we do not address the
parties' alternative arguments on equitable estoppel and
public policy concerns.
The complaint alleges the following facts, which we accept as
true for purposes of reviewing the grant of the motion to
dismiss. Kaloti Enters., Inc. v. Kellogg Sales Co.,
2005 WI 111, ¶11, 283 Wis.2d 555, 699 N.W.2d 205.
On the morning of March 4, 2001, Roy Leiske arrived at his
place of business in Milwaukee and discovered that his office
had been ransacked and that the custom-built antique Talbot
Lago two-door coupe he was restoring in the warehouse was
gone, along with documents related to the car. Leiske had
purchased the car, unrestored and disassembled, more than
thirty years earlier in 1967. He had received the car's
certificate of title on July 3, 1968, from the Wisconsin
Department of Motor Vehicles.
Leiske reported the theft to the Milwaukee Police Department
(MPD). MPD detectives learned that witnesses had seen two men
loading a truck at the warehouse early on the day of the
theft. MPD detectives also found fraudulent and forged
documents that were created in order to ship the car to
Europe after the theft.
Mueller inherited the car from Leiske, who died in
In 2016, TL sought to title the car in Illinois after
purchasing it through international brokers. Plaintiffs were
informed by MPD that Illinois authorities had placed a hold
on the title pending a court order. MPD also learned that the
car is presently at a restoration business located in Essex,
Massachusetts. TL and the Massachusetts business reached an
agreement with MPD for the car to remain stored there.
Plaintiffs demanded that TL return the car. When TL did not
return it, plaintiffs filed this action. The trial court
granted TL's motion to dismiss. This appeal follows.
This case comes to us on a motion to dismiss a complaint.
"A motion to dismiss for failure to state a claim tests
the legal sufficiency of the complaint." John Doe 1
v. Archdiocese of Milwaukee,2007 WI 95, ¶12, 303
Wis.2d 34, 734 N.W.2d 827 (citation omitted). Upon a motion
to dismiss, we accept as true all facts well-pleaded in the