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Mueller v. Tl90108, LLC

Court of Appeals of Wisconsin, District I

July 24, 2018

Richard A. Mueller, Plaintiff-Appellant, Joseph L. Ford, III, Plaintiff-Co-Appellant,
TL90108, LLC, Defendant-Respondent.

          APPEAL from an order of the circuit court for Milwaukee County No. 2017CV867REBECCA F. DALLET, Judge. Reversed and cause remanded.

          Before Brennan, Brash and Dugan, JJ.

          BRENNAN, J.

         ¶1 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 vehicle.

         ¶2 The trial court held that under WIS. STAT. § 893.35 (2015-16), [1]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.

         ¶3 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.


         ¶4 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.

         ¶5 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.

         ¶6 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.

         ¶7 Mueller inherited the car from Leiske, who died in 2005.[2]

         ¶8 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.

         ¶9 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.


         ¶10 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 ...

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