Opinion
Case No. 94-2399.
Opinion Released: July 5, 1995 Opinion Filed: July 5, 1995 This opinion will not be published. See Rule 809.23(1)(b)5, Stats.
APPEAL from a judgment of the circuit court for Eau Claire County: GREGORY A. PETERSON, Judge. Affirmed.
Before Cane, P.J., LaRocque and Myse, JJ.
Wagner Hopkins, Inc., appeals a judgment dismissing its counterclaim against Realty World for negligence in its handling of a real estate transaction. The court allowed Wagner Hopkins to file a counterclaim against Realty World in Realty World's action to recover a commission, but denied Wagner Hopkins' motion to commence a third-party action against Realty World's employee, Donald Engum. Wagner Hopkins then filed a separate third-party action against Engum and sought consolidation of the two actions. The trial court denied that motion. The court found that Wagner Hopkins owed a commission to Realty World and that Realty World was negligent in its handling of the transaction. The court offset the damages and dismissed the complaint and counterclaim. Wagner Hopkins argues that the court erroneously exercised its discretion when it refused to allow the filing of a third-party negligence action against Engum and when it refused to consolidate the two actions. Because we conclude that the court properly exercised its discretion and Wagner Hopkins was not prejudiced by these decisions, we affirm the judgment.
The trial court properly exercised its discretion when it denied Wagner Hopkins' motion to amend the pleadings to commence a third-party action against Engum. The trial court's discretionary decision must be upheld if there exists a reasonable basis for its ruling. Howard v. Duersten , 81 Wis.2d 301, 305, 260 N.W.2d 274, 276 (1977). Under the doctrine of respondeat superior, Engum's tortious conduct was attributable to Realty World. Pamperin v. Trinity Memorial Hosp. , 144 Wis.2d 188, 198, 423 N.W.2d 848, 852 (1988). Engum's negligence, as imputed to Realty World, was already before the court. The court properly refused to allow amendment of the pleadings to implead a superfluous party, especially under circumstances where that party's attorney had not participated in the first half of the trial and the second half might have to be delayed.
The trial court also properly exercised its discretion when it denied Wagner Hopkins' motion to consolidate the two actions once it brought its separate action against Engum. In addition to claiming negligence against Engum personally, the second action named Arthur and Chester Wagner as plaintiffs and alleged new causes of action for misrepresentation, unjust enrichment and intentional infliction of emotional distress. Consolidation of these additional claims by and against new parties substantially added to the complexity of the underlying case and would have forced an adjournment of the scheduled trial date to allow additional time for discovery and attorney preparation.
Furthermore, Wagner Hopkins has not established any prejudice from the trial court's refusal to allow the third party action or consolidation. Wagner Hopkins and Chester and Arthur Wagner filed their action against Engum and had their day in court. Contrary to their assertions on appeal, they were not left without a forum in which to litigate their claims. We reject their argument that they were caught in a "procedural nightmare" because Judge Peterson would not allow the third-party complaint or consolidation and Judge Barland granted summary judgment in the separate case they commenced. Because Wagner Hopkins had received damages for Engum's negligence in the Realty World action, it had no legitimate separate claim remaining against Engum. Therefore, the action would have been properly dismissed regardless of whether it was a third-party complaint and regardless of which court heard the action.
Judge Barland's dismissal of the separate action against Engum is the subject of appeal no. 94-3400.
By the Court. — Judgment affirmed.