Acuity, a Mutual Insurance Company v. JM Remodeling & Construction

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 2, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP822 Cir. Ct. No. 2022CV5309

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

ACUITY, A MUTUAL INSURANCE COMPANY,

PLAINTIFF-APPELLANT,

CRYSTAL TRUETTNER,

INTERVENOR-PLAINTIFF-APPELLANT,

V.

JM REMODELING & CONSTRUCTION AND FRANKENMUTH MUTUAL
INSURANCE COMPANY,

DEFENDANTS-RESPONDENTS,

MIKE MOON AND ABC INSURANCE COMPANY,

DEFENDANTS.
No. 2024AP822

APPEAL from an order of the circuit court for Milwaukee County:
WILLIAM SOSNAY, Judge. Affirmed in part; reversed in part and cause
remanded with directions.

Before White, C.J., Colón, P.J., and Donald, J.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Acuity, a Mutual Insurance Company, and Crystal
Truettner appeal from the circuit court order dismissing their negligence and
breach of contract claims arising from an apartment fire and granting summary
judgment to JM Remodeling & Construction and Frankenmuth Mutual Insurance
Company (collectively JM Remodeling).1 Acuity insured an apartment building
on West Loomis Road (the “Apartment Building”), which was owned by 4340
W. Loomis Road, LLC (“4340 LLC”). Acuity alleged that 4340 LLC contracted
with JM Remodeling to renovate the Apartment Building. Co-defendant Mike
Moon, JM Remodeling’s employee or subcontractor, repaired a leaky pipe in the
bathroom of Unit 15, after which a fire broke out, causing substantial damage.
Acuity brings its claims under subrogation rights arising from payments it made to
its insured, 4340 LLC. Truettner intervened in Acuity’s action as a residential
tenant under lease in the Apartment Building at the time of the fire; however, she
is not alleged to be a tenant in Unit 15.

1
Crystal Truettner’s intervenor complaint alleged the fire caused destruction of her
personal property; she asserted damages of over $6,000. Throughout the litigation, Truettner
stated her interests were completely aligned with Acuity. She did not file an independent
response to JM Remodeling’s motion for summary judgment or an independent brief in this
appeal. Nonetheless, she was included in the notice of appeal and is an appellant in this matter.

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No. 2024AP822

¶2 For the reasons discussed below, we conclude that genuine issues of
material fact preclude summary judgment on Acuity’s negligence and breach of
contract claims. While the same issues preclude summary judgment on
Truettner’s negligence claim, we conclude that she has forfeited the breach of
contract claim by failing to argue the contract claim before the circuit court.
Therefore, we affirm the part of the circuit court order dismissing Truettner’s
contract claim. We reverse the remainder of the order, including both of Acuity’s
claims and Truettner’s negligence claim, and remand for further proceedings
consistent with this decision.

BACKGROUND

¶3 This case arises from a fire on April 20, 2020, at the Apartment
Building. Acuity filed an action for (1) negligence and breach of contract against
JM Remodeling and (2) negligence against Moon. Acuity named Michael Quick,
a Fire Origin and Cause Investigator, from Kubitz & Associates, as an expert
witness and proffered his report of his investigation and analysis. Quick visited
the Apartment Building the day after the fire, interviewed Moon, and
photographed the tools he used to repair the leaking copper pipe, which included a
soldering kit with a gas torch. Quick reported that Moon wrapped the pipe with an
Oatey Flame Protector 9” x 12” heat shield fire blanket, which was rated effective
up to 2,500 degrees. However, that rating was lower than the maximum in-air
flame temperature of the BernzOmatic MAP-Pro gas torch used by Moon to solder
the pipes; the torch could reach temperatures up to 3,730 degrees Fahrenheit. In
Quick’s expert opinion, the most probable cause of the fire was an ignition of
nearby combustible materials when the torch was used to solder the pipe. Acuity
stated that it paid more than $892,000 in claims to 4340 LLC as a result of this
fire.

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No. 2024AP822

¶4 JM Remodeling moved for summary judgment. While Acuity
alleged that JM Remodeling was liable for Moon’s negligence under respondeat
superior, JM Remodeling argued that Moon’s negligence was not proven, and
asserted Moon was an independent contractor, which meant that JM Remodeling
was not liable for his torts. Acuity alleged that if Moon were an independent
contractor, JM Remodeling, as the general contractor of the renovations, was still
liable under contract law. It argued that JM Remodeling performed work for 4340
LLC under an implied contract containing a common law duty to perform the
repair work with skill and care, and JM Remodeling breached that contract and
duty, causing the fire at the Apartment Building through its subcontractor, Moon.
JM Remodeling denied there was an express or implied contract.

¶5 Accompanying the summary judgment briefing were depositions
from Moon; Jim Meldman, the owner of JM Remodeling; Heather Henn, the
manager of JM Remodeling; affidavits from Quick and JM Remodeling’s
accountant; and copies of the Greenfield Police Department reports regarding the
fire. We recite the facts presented.

¶6 Meldman was the owner of multiple residential and commercial
properties, each legally owned by a separate LLC, including 4340 LLC;
JM Remodeling, a design and build firm; and a holding company for projects in
development. Henn stated that she managed day-to-day operations. Meldman
stated that his companies used independent contractors, such as architects,
designers, and engineers, who were paid with 1099 independent contractor tax
forms. The independent contractors were paid directly by the LLCs, not through
JM Remodeling.

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No. 2024AP822

¶7 Henn testified that she developed the scope of repair, remodeling, or
maintenance work to be done by JM Remodeling and assigned it. Meldman
testified that only Henn knew how projects were assigned, whether as work
directly by JM Remodeling or bid to third parties. Neither Henn nor Meldman
could state what percentage of work JM Remodeling did for properties owned by
Meldman versus third parties. When JM Remodeling worked on property owned
by Meldman, the specific building LLC was billed for any work completed by JM
Remodeling, but Henn testified that there were no contracts for work between any
of the LLCs and JM Remodeling.

¶8 Both Meldman and Henn testified that Moon was an independent
contractor who did some minor or light maintenance work. Moon testified that he
thought he was an employee; he worked exclusively for JM Remodeling during
this time, working every weekday for 6-10 hours a day. Moon stated that he did
not have a company or other clients. He normally was given tasks and projects by
text or phone call from Henn or a secretary. He tracked his hours by the building
where the work was completed and Henn paid him in cash every other week, until
the fire.

¶9 Meldman, Henn, and Moon, all reviewed and did not dispute the
accuracy of a QuickBooks accounting report of payments to Moon from May 2020
to December 2021; the sum was $45,000. There were no entries for payments
before the fire on April 20, 2020. Henn stated that JM Remodeling began using a
new labor tracking and billing system after the fire, and she recalled not giving
Moon work after the fire. JM Remodeling’s accountant attested that Moon was
not an employee, and had been paid as an independent contractor, producing 1099
tax forms for 2020 and 2021. However, Moon stated he did not know how the
taxes were handled, but he did not report his cash earnings. While Moon stated

5
No. 2024AP822

that he thought he was an employee, he acknowledged he did not receive a W-2,
benefits, or overtime.

¶10 Moon testified that he supervised himself, he “fixed whatever
needed fixing[.]” While he held a journeyman’s electrician’s license, he did not
have a plumber’s license, which JM Remodeling knew because he told the staff he
was unable to pull a permit. Henn testified that she did not know Moon’s
credentials. Moon stated that he began working for JM Remodeling in about June
2019, and stopped around January 2021, later clarifying that the work stopped
when this lawsuit was filed. Prior to the fire, he did not have insurance. After the
fire, JM Remodeling required him to have insurance. Previously, he had done
maintenance, plumbing, and electrical, for many different property owners on the
East side of Milwaukee, typically paid in cash, although with a W-2 for one
owner.

¶11 Moon testified that on the day of the fire, Henn sent him to do work
on another Meldman-owned building, when he was contacted about a leaking pipe
in Unit 15 of the Apartment Building. Unit 15 was empty, which, in Moon’s
experience, was typically when units were renovated, and the whole shower and
tub were being replaced. He stated that a JM Remodeling employee cut open a
wall with a reciprocating saw, exposing electrical wires, gas lines, and plumbing
lines.

¶12 To repair the leak, Moon brought a copper pipe repair kit, sprayers,
and soldering equipment. His testimony and the police report described Moon’s
account of the repair in a similar manner. Moon sprayed the insulation in the wall
with water and wrapped the pipe in a fire blanket to prevent any fires. He then
used a propane torch to solder a coupling on the copper pipe to stop the leak.

6
No. 2024AP822

Moon then sprayed the area again, felt the wall to make sure it was not warm, and
stuck his arm up the wall to make sure it was wet. After checking the repair,
Moon left. Moon estimated that the repair took about 10 minutes and he was there
about 30 minutes in all; the police report stated he arrived at 10 a.m. and left at
11 a.m. Shortly after leaving, a JM Remodeling employee notified him by phone
that the Apartment Building was on fire and he returned. Henn testified that she
was not aware of how or when Moon was asked to fix the pipe or was informed
about the fire.

¶13 Moon reviewed the police report; he did not dispute the reporting
that: “Moon stated right away that it was possible that a piece of solder or a spark
had got up into the wall that he was working on and had started a fire.” According
to the police report, after the fire was extinguished, a firefighter showed the
investigators “that the fire was concentrated in the bathroom [and] one of the pipes
in the wall was glowing red.” Analyzing the burn pattern, the fire travelled up the
bathroom wall into the roof. Although the report stated that the investigators
“believed that the fire was accidental, the cause and origin of this fire are officially
undetermined.” The investigators believed it was “caused by the remodeling and
utilization of the soldering gun.”

¶14 The circuit court gave an oral ruling on the summary judgment
motion on October 18, 2023. The court reviewed the facts presented by the parties
and the timeline of Moon using soldering tools to fix a leaking pipe, noting the
precautions Moon took to use a sprayer to wet the repair site, apply a fire blanket,
and monitor for potential sparks. The court noted that while Moon believed his
work did not cause the fire, he acknowledged it was possible.

7
No. 2024AP822

¶15 The court then addressed Moon’s employment status, concluding
that he routinely performed maintenance work like this plumbing job, he received
assignments through contacts at JM Remodeling, and he “independently
perform[ed] maintenance work without supervision.” Moon submitted his time
and was “paid cash for his services. And he was issued a 1099 form for tax
purposes.” The court noted that “[s]ubsequent to the fire at some point apparently,
JM [Remodeling] did not use Mr. Moon after that.”

¶16 The court concluded that Moon was an independent contractor, not a
servant, and the doctrine of respondeat superior did not apply. The court reviewed
the factors it considered, including control or right to control the work, “the place
of work, the time of the employment, the method of payment, the nature of the
business or occupation, which party furnishes the instrumentalities or tools, the
intent of the parties to the contract , and the right of summary discharge of
employees,” citing Pamperin v. Trinity Memorial Hospital, 144 Wis. 2d 188,
199-200, 423 N.W.2d 848 (1988). The court then applied the factors to the facts
presented and concluded that “[c]ontrol or the right to control” was not present in
the record. The court concluded that JM Remodeling told Moon what repairs
needed to be done, but did not supervise his conduct and he had discretion over the
work. JM Remodeling did not provide any tools. The court concluded that Moon
was not a servant of JM Remodeling.

¶17 The court granted partial summary judgment to JM Remodeling and
dismissed the negligence claim against it. At a second hearing in February 2024,
the court considered the breach of contract claim. Acuity argued that under the
general contractor rule, when an independent contractor negligently performs
work under a general contractor, the general contractor may be liable to the

8
No. 2024AP822

property owner for breach of a contractual duty of care, even if the contract was
implied and not express.

¶18 The court noted that Meldman owned both JM Remodeling and
4340 LLC and Meldman was not moving to enforce JM Remodeling’s duty under
the contract, as Acuity argued should happen. The court questioned Acuity’s
standing to enforce the contract even with subrogation rights, as it was not a party
to the contract. Acuity argued that it was not attempting to enforce a contract, it
was asserting that a contract existed under which Moon was then engaged as a
subcontractor and Acuity had the right to pursue both Moon and JM Remodeling
for Moon’s negligence.

¶19 The circuit court concluded that there was no intent by either
4340 LLC or JM Remodeling to enter into a contract, noting that an implied
contract is determined by the conduct of the parties and here, it was Acuity
arguing it existed, not 4340 LLC or JM Remodeling, which both denied it. The
court granted full summary judgment in JM Remodeling’s favor.2 Acuity and
Truettner appeal.3

2
In the final order, the claims against JM Remodeling were dismissed in their entirety,
with prejudice, and on the merits; however, the claims against Moon would proceed pursuant to
the scheduling order.
3
While JM Remodeling does not dispute that Truettner’s claims aligned with Acuity, we
note that Acuity does not claim to represent Truettner. For ease of reading, we generally refer to
Acuity alone as it was the active litigant and appellant. We address Truettner’s claims in section
III, after Acuity’s claims.

9
No. 2024AP822

DISCUSSION

¶20 Acuity argues that genuine issues of material fact preclude summary
judgment. It argues that the facts present a reasonable inference that Moon was a
servant of JM Remodeling and therefore JM Remodeling would be liable for his
negligence. Acuity also argues that under its subrogation rights created by the
claim payment, it can step into 4340 LLC’s role in an implied contract with
JM Remodeling to allow Acuity to pursue JM Remodeling for breach of contract
for Moon’s work, as subcontractor on the implied contract, if Moon were
considered an independent contractor. We conclude that genuine issues of
material fact preclude summary judgment on both claims for Acuity. We address
Acuity’s claims in turn, and then we address the effect of those conclusions on
Truettner’s claims.

¶21 A circuit court must grant summary judgment “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits,” show that there are no genuine issues of material fact, and “the moving
party is entitled to a judgment as a matter of law.” WIS. STAT. § 802.08(2) (2023-
24).4 We independently review whether the circuit court correctly granted
summary judgment. Munger v. Seehafer, 2016 WI App 89, ¶46, 372 Wis. 2d
749, 890 N.W.2d 22. “When deciding whether there are genuine issues of
material fact, we view the evidence, and the reasonable inferences from that
evidence, in a light most favorable to the nonmoving party.” Petzel v. Valley
Orthopedics Ltd., 2009 WI App 106, ¶5, 320 Wis. 2d 621, 770 N.W.2d 787.

4
All references to the Wisconsin Statutes are to the 2023-24 version.

10
No. 2024AP822

I. Negligence through respondeat superior

¶22 “It is a basic principle of law, as well as common sense, that one is
typically liable only for his or her own acts, not the acts of others.” Lewis v.
Physicians Ins. Co. of Wis., 2001 WI 60, ¶11, 243 Wis. 2d 648, 627 N.W.2d 484.
However, an exception is the doctrine of respondeat superior, which imposes
responsibility by “virtue of the close relationship between that person and the
tortfeasor.” Kerl v. Dennis Rasmussen, Inc., 2004 WI 86, ¶¶17, 22, 273 Wis. 2d
106, 682 N.W.2d 328. Under the doctrine, “a master can be held liable for the
physical harm caused to third persons by the torts of his [or her] servant.” Arsand
v. City of Franklin, 83 Wis. 2d 40, 45, 264 N.W.2d 579 (1978).5 “The
master/servant relationship is a species of agency; all servants are agents but not
every agent is a servant.” Kerl, 273 Wis. 2d 106, ¶20.

¶23 “The right to control is the dominant test in determining whether an
individual is a servant.” Pamperin, 144 Wis. 2d at 199. Other factors may be
considered including where the work is completed, the worker’s time in
employment, method of payment, the nature or type of work, who provides the
tools to complete the work, and the intent of the parties. Id. at 199. There need
not be a formal contract of employment or even payment for the work for a person
“to occupy the position of servant.” Kerl, 273 Wis. 2d 106, ¶22. Servants are
distinguished from independent contractors, a term that encompasses both agents

5
Although typically “employer and employee” or “principal and agent” would suffice to
explain the relationship between two parties, the use of the terms master and servant under “[t]he
doctrine of respondeat superior (‘let the master answer’),” reflects its use in agency law “for
perhaps as long as 250 years.” Kerl v. Dennis Rasmussen, Inc., 2004 WI 86, ¶17, 273 Wis. 2d
106, 682 N.W.2d 328.

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No. 2024AP822

who do not satisfy the test for servants and those who are not agents at all. 6
Arsand, 83 Wis. 2d at 49-50 (citation omitted).

¶24 Although the circuit court correctly stated the rule that it considered
whether JM Remodeling had control or the right to control Moon’s work in
determining whether he was a servant, the court reached its conclusions by
choosing between the competing inferences in the record. “Where the inference is
clear that there is, or is not, a master and servant relationship, it is made by the
court; otherwise the jury determines the question after instruction by the court as
to the matters of fact to be considered.” Thurn v. La Crosse Liquor Co., 258 Wis.
448, 452, 46 N.W.2d 212 (1951) (citation omitted). We conclude this is a
question for the jury because the record does not clearly support only one
reasonable inference on Moon’s servant status.

¶25 While the circuit court acknowledged that JM Remodeling told
Moon what repairs needed to be done, the court concluded that it did not supervise
his conduct and he had discretion over the work. However, the court’s
characterization is choosing an inference from the record presented. “Courts do
not weigh the evidence when determining summary judgment motions.” Petzel,
320 Wis. 2d 621, ¶9. The record reflects that Moon testified that he supervised
himself, but also that he checked in daily with Henn or the office staff for job
assignments. Henn determined the scope of the work JM Remodeling did and
chose who would do it. There is no evidence that Moon chose which jobs to work

6
While the term independent contractor is defined for different legal contexts, it is often
related to the statutory definition and nine-part test in the Worker’s Compensation Act. See WIS.
STAT. § 102.07(8)(b). Here, we do not need to examine how other independent contractor
statuses might apply, but instead, we examine if there are material facts at issue to determine
whether Moon is JM Remodeling’s servant under respondeat superior.

12
No. 2024AP822

on or bid on projects. Although the record could support the inference that
JM Remodeling did not control Moon’s actions, an equally compelling inference
is that Moon acted on JM Remodeling’s orders and JM Remodeling had the right
to control what he did.7

¶26 Henn and Meldman both testified that Moon was an independent
contractor and never an employee. Calling a person an independent contractor is
“not by itself dispositive; the test looks beyond labels to factual indicia of control
or right to control.” Kerl, 273 Wis. 2d 106, ¶24. JM Remodeling supported the
view that Moon was an independent contractor with its accountant’s affidavit that
Moon received 1099 independent contractor tax forms in 2020 and 2021.
Although Meldman testified that independent contractors were paid directly by the
LLCs, not through JM Remodeling, the 1099 forms Moon received were from
JM Remodeling, not from the various different buildings where Moon did
maintenance work. Further, neither Henn nor Meldman denied Moon’s claim that
he had been paid in cash every other week, from when he started working for JM
Remodeling in 2019 until the fire. Meldman, Henn, and Moon each agreed that
the QuickBooks accounting report of payments to Moon looked accurate;
however, the report showed no payments before May 2020, in other words, before

7
We note that JM Remodeling asserts that it did not have plumbers on staff; therefore, it
lacked the necessary knowledge to control Moon’s actions. However, JM Remodeling also
provided that Wisconsin law does not require a licensed plumber to perform a repair such as the
one Moon did, including in its submissions to the circuit court a section of the City of Greenfield
municipal code. See WIS. STAT. § 145.06(4)(d). We conclude that whether JM Remodeling had
a plumber on staff is not relevant or determinative. Further, subject matter knowledge is not
determinative of the right to control a servant’s work. See RESTATEMENT (SECOND) OF AGENCY
§ 220 (1958) cmt. d (discussing that while the master’s physical control or right to control the
servant is important and often determinative, the relationship may be attenuated or dependent on
customary roles, such as “the full-time cook is regarded as a servant although it is understood that
the employer will exercise no control over the cooking”).

13
No. 2024AP822

the fire, and $45,000 in payments after that. While Moon acknowledged that he
did not receive a W-2 from JM Remodeling, he also stated that he did not claim
the cash payments on his taxes. There is no evidence in the record of the tax
treatment of the cash payments to Moon before the fire.

¶27 When we review an order granting a motion for summary judgment,
our question is “not necessarily whether the inferences that have been drawn are
reasonable but whether the record reveals there are competing inferences that
could be considered reasonable.” Lecus v. American Mut. Ins. Co. of Boston, 81
Wis. 2d 183, 189-90, 260 N.W.2d 241 (1977). Although the circuit court’s
inferences and conclusions as to JM Remodeling’s control over Moon were
reasonable, we also plainly see that competing inferences can be drawn from the
same record. Similarly, the accounting payments and 1099 forms create
competing inferences: it could be indicative of continuity, that JM Remodeling
treated Moon as an independent contractor before and after the fire; or it could be
indicative of change, that JM Remodeling began treating Moon as an independent
contractor only after the fire. Choosing between inferences in the record is a
question of fact properly for a jury. See Thurn, 258 Wis. at 453. “[C]redibility
assessments must be made at trial and not on summary judgment.” Novell v.
Migliaccio, 2010 WI App 67, ¶12, 325 Wis. 2d 230, 783 N.W.2d 897.

¶28 Examining “the evidence, and the reasonable inferences from that
evidence, in a light most favorable to the nonmoving party,” we conclude that
genuine issues of material fact exist on JM Remodeling’s control and right to
control Moon’s work and whether he was acting as JM Remodeling’s servant. See
Petzel, 320 Wis. 2d 621, ¶5. Summary judgment was not appropriate. There are
triable issues of fact. See Maynard v. Port Publications, Inc., 98 Wis. 2d 555,

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No. 2024AP822

562, 297 N.W.2d 500 (1980). We therefore reverse the order dismissing Acuity’s
negligence claim against JM Remodeling.

II. Breach of contract

¶29 Acuity asserts that, stepping into 4340 LLC’s shoes, it can argue that
JM Remodeling breached a contract implied in fact with 4340 LLC to perform the
repair and maintenance work, and then recover for its damages against
JM Remodeling, even if Moon were considered an independent contractor.
JM Remodeling does not dispute that Acuity had subrogation rights arising from
its insurance payment to 4340 LLC. See Muller v. Society Ins., 2008 WI 50, ¶22,
309 Wis. 2d 410, 750 N.W.2d 1. Acuity does not argue that an express contract
was made between JM Remodeling and 4340 LLC, something JM Remodeling has
strongly denied. Acuity argues that whether an implied contract was formed is a
question for the jury; therefore, summary judgment is inappropriate.

¶30 “In evaluating a breach of contract claim, a court must determine
whether a valid contract exists, whether a party has violated its terms, and whether
any such violation is material such that it has resulted in damages.” Steele v.
Pacesetter Motor Cars, Inc., 2003 WI App 242, ¶10, 267 Wis. 2d 873, 672
N.W.2d 141. A contract implied in fact may be circumstantially proven, if by the
parties’ “words, their conduct, or course of dealing” it can be shown that the
parties “came to a mutual agreement[.]” Theuerkauf v. Sutton, 102 Wis. 2d 176,
184-86, 306 N.W.2d 651 (1981).

¶31 A “literal ‘meeting of the minds’ is not required” to form a contract
and the “parties do not need to agree subjectively to the same interpretation at the
time of contracting in order for there to be a mutual assent[.]” Management
Computer Servs., Inc. v. Hawkins, Ash, Baptie & Co., 206 Wis. 2d 158, 180-81,

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No. 2024AP822

557 N.W.2d 67 (1996). “[M]utual assent is judged by an objective standard.” Id.
at 181. “[A] contract must be definite as to the parties’ basic commitments and
obligations” to be enforceable, and the issue of whether a contract’s terms are
definite may be decided by the jury, or by the court as a matter of law. Id. at 178;
WIS JI—CIVIL 3022.8

¶32 If a party to an alleged contract implied in fact seeks to avoid
liability, it “must come forward with evidence sufficient to rebut and overcome the
presumption of the existence of an implied contract in fact[.]” Theuerkauf, 102
Wis. 2d at 185-86. JM Remodeling argues there is no evidence of intent to form a
contract. It argues that “[u]nder Wisconsin law, if there is no intent to create a
contract, then no contract should be inferred or enforced.” However, it offers no
legal authority for this as a rule. We decline to review issues inadequately briefed
or offered without legal authority. State v. Pettit, 171 Wis. 2d 627, 646, 492
N.W.2d 633 (Ct. App. 1992).

¶33 Acuity argues that the record shows a pattern of payments for repair
and maintenance work, as circumstantial evidence to support that, by their actions
and dealing, JM Remodeling and 4340 LLC came to a mutual agreement.
JM Remodeling argues that even if payments for services occurred, that is not
proof a contract was formed. It also argues that there were no definite terms,

8
We note that under contract law, JM Remodeling may be able to delegate performance
on the contract to an independent contractor, but it would not be able to delegate its liability for
the performance of the contract. Brooks v. Hayes, 133 Wis. 2d 228, 244, 395 N.W.2d 167 (1986)
(“The rule for delegation of responsibility is that if the obligor delegates the performance of an
obligation, the obligor is not relieved of responsibility for fulfilling that obligation or of liability
in the event of a breach.”). A breach of a valid contract means that the defendant violated the
contract’s terms. See Steele v. Pacesetter Motor Cars, Inc., 2003 WI App 242, ¶10, 267 Wis. 2d
873, 672 N.W.2d 141.

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No. 2024AP822

which could prevent contract formation. See Management Computer Servs., 206
Wis. 2d at 178 (discussing that “indefiniteness as to an essential term of the
agreement prevents the creation of an enforceable contract”).

¶34 Here, we conclude that summary judgment is inappropriate because
when we review the record, there are “competing inferences that could be
considered reasonable.” Lecus, 81 Wis. 2d at 189-90. The circuit court concluded
there was no contract because there was no evidence of intent to form a contract;
however, the court ignored whether circumstantial evidence showed through the
parties’ conduct and course of dealing that JM Remodeling and 4340 LLC “came
to a mutual agreement[.]” Theuerkauf, 102 Wis. 2d at 186. Considering the
evidence in the light most favorable to Acuity’s claim, we conclude genuine issues
of material fact exist as to whether an enforceable contract was formed. See
Petzel, 320 Wis. 2d 621, ¶5.

¶35 While we conclude that the existence of an implied contract is a
question for a trier-of-fact, we note with some concern that Acuity is not seeking a
breach of contract claim, but another approach to negligence, to argue that the
contract “furnishe[d] the occasion of a tort.” Colton v. Foulkes, 259 Wis. 142,
146, 47 N.W.2d 901 (1951).9 “[T]here must be a duty existing independently of
the performance of the contract for a cause of action in tort to exist.” Landwehr v.
Citizens Tr. Co., 110 Wis. 2d 716, 723, 329 N.W.2d 411 (1983). On remand, if an

9
Acuity references the Wisconsin Supreme Court’s holding that “[a]ccompanying every
contract is a common-law duty to perform with care, skill, reasonable expedience, and
faithfulness the thing agreed to be done, and a negligent failure to observe any of these conditions
is a tort, as well as a breach of the contract.” Colton v. Foulkes, 259 Wis. 142, 146, 47 N.W.2d
901 (1951). The Wisconsin Supreme Court has clarified that Colton does not authorize a tort
claim from every breach of contract based solely on the contract. Greenberg v. Stewart Title
Guar. Co., 171 Wis. 2d 485, 495-96, 492 N.W.2d 147 (1992).

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No. 2024AP822

implied contract is found to have existed, then the question of whether the valid
contract furnished the “state of things” for a viable tort claim would also need to
be proven. See id.

III. Truettner’s claims

¶36 For Truettner’s negligence claims against JM Remodeling, the same
genuine issues of material fact preclude summary judgment. Therefore, we
reverse the part of the circuit court order dismissing her negligence claim and
remand it for further proceedings.

¶37 However, JM Remodeling argues that Truettner forfeited appealing
the breach of contract claim by not addressing it to the circuit court prior to the
second summary judgment hearing, when the court requested additional briefing.
We agree. We see no reason to make an exception to our practice of not
addressing issues not raised before the circuit court and raised for the first time on
appeal. See Town of Brookfield v. City of Brookfield, 2015 WI App 3, ¶25, 359
Wis. 2d 541, 859 N.W.2d 115. Although Truettner has joined Acuity’s appeal,
neither has made clear how Acuity’s subrogation right under the contract claim
would apply to Truettner and neither has refuted JM Remodeling’s assertion that
the contract claim could not be applicable to Truettner. “We take this lack of reply
as a concession” that Truettner does not have a viable contract claim. United
Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738
N.W.2d 578.

CONCLUSION

¶38 We conclude that genuine issues of material fact preclude summary
judgment on Acuity’s negligence and breach of contract claims and Truettner’s

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No. 2024AP822

negligence claim against JM Remodeling. We therefore reverse the order
dismissing those claims and remand for further proceedings consistent with this
decision. However, Truettner’s breach of contract claim remains dismissed, and
we affirm that part of the order.

By the Court.—Order affirmed in part; order reversed in part and
cause remanded with directions.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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