Kathleen McCaigue v. Marc A. Messinger

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.
September 28, 2021
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2018AP1888 Cir. Ct. No. 2018CV2411

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

KATHLEEN MCCAIGUE,

PLAINTIFF-APPELLANT,

V.

MARC A. MESSINGER, REALTY 100, INC. D/B/A RE/MAX REALTY 100, ALAN
H. DEUTCH, DEUTCH LAW OFFICES SC, CHRISTINE SEEBER AND BRUCE G.
BARNDT,

DEFENDANTS-RESPONDENTS.

APPEAL from orders of the circuit court for Milwaukee County:
CLARE L. FIORENZA, Judge. Affirmed.

Before Brash, C.J., Dugan and White, JJ.

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).
No. 2018AP1888

¶1 PER CURIAM. Kathleen McCaigue, pro se, appeals orders of the
trial court dismissing her numerous claims against several defendants, as set forth
in her complaint filed in March 2018, relating to a failed real estate transaction that
occurred in December 2005. The trial court concluded that McCaigue’s claims were
time-barred by the relevant statutes of limitations. McCaigue argues that equitable
estoppel should apply in this case, and alleges that the trial court was biased against
her. Upon review, we affirm.

BACKGROUND

¶2 In December 2005, defendant Bruce G. Barndt signed an offer to
purchase McCaigue’s home as the power of attorney for his mother, Helen Barndt.1
Barndt cancelled the contract on December 30, 2005, citing defects discovered in
an inspection of the property, for which there was a contingency in the contract.

¶3 McCaigue’s complaint—filed more than twelve years later—named
as defendants Barndt; the Estate of Helen Barndt; Realty 100, Inc., (d/b/a RE/MAX
Realty 100); Marc A. Messinger, McCaigue’s real estate agent at Realty 100;
Christine Seeber, an office manager at Realty 100; and Alan H. Deutch and Deutch
Law Offices SC, who issued an opinion letter after the cancellation of the contract
which stated that the earnest money for the transaction should be disbursed to
Barndt. The complaint—which was 420 paragraphs long, and consisted of over 100
pages—alleged sixteen causes of action, including breach of contract, breach of
fiduciary duty, duty of good faith and fair dealing, intentional misrepresentation,

1
According to McCaigue’s complaint, Helen Barndt passed away in 2011.

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conspiracy, violations of WIS. STAT. § 100.18 (2019-20),2 and intentional
interference with a contractual relationship.

¶4 In the complaint, McCaigue made reference to a “Viking Ship
Incident of 2012,” which she explained occurred in May 2012 when her neighbor—
who, according to McCaigue, is Barndt’s sister—“put in a new patio and tilted it
like a Viking Ship towards [McCaigue’s] house.” This angered McCaigue, and she
stated that this was the “catalyst” for filing this action. McCaigue also alleged that
the Viking Ship Incident “caused [her] to discover” that Barndt “never intended to
fulfill the home sale contract he signed” because he did not want his mother living
next door to his sister.

¶5 Additionally, McCaigue stated that “around July 2012” she gave “a
relative” the contract to review. The relative told her that since the deadline for the
inspection contingency had been December 23, 2005, the contract was cancelled
“illegally.” However, McCaigue had signed an extension for the contingency
deadline. Furthermore, McCaigue had an attorney review the matter in 2006, who
advised her that she had no cause of action.

¶6 Defendants Realty 100, Messinger, Seeber, Deutch, and Deutch Law
Offices filed motions to dismiss on the ground that McCaigue’s claims were barred
by the applicable statutes of limitations. At a hearing held in June 2018 on those
motions, the trial court agreed and dismissed all of the claims against those parties.
The court further stated that conspiracy is not a valid standalone cause of action,
and dismissed those claims as to all defendants for failure to state a claim for which
relief can be granted. Barndt subsequently also filed a motion to dismiss the claims

2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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against him, which was granted by the trial court on the same grounds. Additionally,
the court found that service against the Estate of Helen Barndt had not been effected,
and therefore dismissed the claims against the Estate as well. This appeal follows.

DISCUSSION

Statutes of Limitations

¶7 We first address the issues raised by McCaigue regarding the
applicable statutes of limitations for this matter. The application of a statute of
limitations in an action is a question of law which we review de novo. See Estate
of Hegarty ex rel. Hegarty v. Beauchaine, 2001 WI App 300, ¶14, 249 Wis. 2d
142, 638 N.W.2d 355.

¶8 At the June 2018 motion hearing, the trial court explained that there
were different statutes of limitations that applied to McCaigue’s claims, depending
on whether they were contract claims with a six-year time limit, see WIS. STAT.
§ 893.43(1), or fraud claims with a three-year limit, see WIS. STAT.
§ 893.93(1m)(b).3 McCaigue’s allegations relating to a WIS. STAT. § 100.18
violation also had a three-year time limitation. See § 100.18(11)(b)3. The trial court
found that all of McCaigue’s claims accrued in 2006, because at that point she had
all of the pertinent information relating to the matter.

3
McCaigue argues that WIS. STAT. § 893.93(1m)(b) had not yet become effective when
she filed her complaint, and further notes that at the time the real estate transaction was canceled
in 2005, the statute of limitations on a fraud claim was six years. See WIS. STAT. § 893.93(1)(b)
(2005-06). Additionally, she points out that in its decision, the trial court referred to WIS. STAT.
§ 893.57, which provides for a three-year statute of limitations on intentional torts such as assault
and battery. No such claim was included in McCaigue’s complaint; although McCaigue discusses
in the complaint an alleged “assault” by Messinger that occurred in 2005, she did not make a claim
of assault against Messinger. In any event, any misstatement by the trial court regarding the
applicable statutes of limitations has no bearing on our analysis in this opinion.

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No. 2018AP1888

¶9 Nevertheless, the trial court allowed McCaigue to explain her theory
that her causes of action did not begin to accrue until the Viking Ship Incident. With
this argument, McCaigue was apparently attempting to invoke the “discovery rule,”
which states that the accrual date for claims of fraud for intentional
misrepresentation is “when the plaintiff[] discovered or, in the exercise of
reasonable diligence, should have discovered that [she was] injured, and the cause
of [her] injury.” See John Doe 1 v. Archdiocese of Milwaukee, 2007 WI 95, ¶¶13,
51, 303 Wis. 2d 34, 734 N.W.2d 827 (citation omitted).

¶10 A determination of whether a plaintiff has exercised reasonable
diligence—although usually a question of fact—can be made as a matter of law
“‘when the facts and reasonable inferences that can be drawn from them are
undisputed[.]’” Id., ¶13 (citation omitted). Additionally, whether an inference is
reasonable is also a question of law. Id.

¶11 Here, it is undisputed that McCaigue’s claims are all based on
documents and information that she had in her possession in 2006, after the contract
was cancelled and Attorney Deutch issued his opinion letter stating that the earnest
money should be disbursed to Barndt. We further note that McCaigue consulted
her own attorney regarding the matter in 2006, who advised her that she had no
cause of action.

¶12 Therefore, we conclude that McCaigue’s claims accrued in 2006. As
a result, by waiting until 2018 to file her complaint, all of her claims are time barred
by the applicable statutes of limitations.

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Equitable Estoppel

¶13 McCaigue also renews her argument that equitable estoppel should
apply to her case. She alleged that the defendants deceived her into believing that
it was her fault that the real estate contract was cancelled, which prevented her from
filing a breach of contract action earlier. The trial court rejected her argument.

¶14 In order for equitable estoppel to be applied here, McCaigue must
show that “some action or inaction by [the defendants] has induced reasonable
reliance by [McCaigue] to [her] detriment.” See Somers USA, LLC v. DOT, 2015
WI App 33, ¶13, 361 Wis. 2d 807, 864 N.W.2d 114. “Proof of estoppel must be
clear, satisfactory and convincing and is not to rest on mere inference and
conjecture.” Id. (citation omitted). “We review independently the application of
the doctrine of equitable estoppel to the undisputed facts” of this case. Id.

¶15 McCaigue did not allege any facts regarding particular actions or
inactions by the defendants that precluded her from filing her action earlier. Her
argument seems to be based on her belief that Barndt did not really want his mother,
Helen, living in McCaigue’s house since it was located next to his sister’s house.
Thus, according to McCaigue, Barndt signed the real estate contract with no
intention of fulfilling it, and then all of the defendants conspired to cancel the real
estate contract in order to deceive Barndt’s sister. This is clearly pure conjecture on
the part of McCaigue, and includes no facts that are clear, satisfactory, and
convincing. See id. In fact, McCaigue included in her complaint the opinion letter
from Attorney Deutch regarding the disbursement of the earnest money, which
specifically states that if either the buyer or the seller disagreed with the proposed
disbursement, they could file a lawsuit regarding that issue. That disclosure plainly

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No. 2018AP1888

does not support McCaigue’s allegations that the defendants precluded her from
filing a lawsuit. Therefore, McCaigue’s equitable estoppel argument fails.

Judicial Bias

¶16 McCaigue also asserts that the trial court was biased against her, based
on her allegation that the court applied the “wrong” statute of limitations for her
intentional misrepresentation claim in utilizing the current three-year time frame as
opposed to the six-year time frame that was in effect in 2005 and 2006. See WIS.
STAT. § 893.93(1)(b) (2005-06). “There is a presumption that a judge acted fairly,
impartially, and without prejudice.” State v. Herrmann, 2015 WI 84, ¶3, 364 Wis.
2d 336, 867 N.W.2d 772. “A defendant may rebut the presumption by showing that
the appearance of bias reveals a great risk of actual bias.” Id. “Whether a judge
was objectively not impartial is a question of law that we review independently.”
Id., ¶23 (citation omitted).

¶17 McCaigue’s argument presents no evidence of the appearance of bias;
at worst, the trial court misstated the applicable statute of limitations. Therefore,
McCaigue has not rebutted the presumption that the trial court “acted fairly,
impartially, and without prejudice.” See id., ¶3.

¶18 In short, all of McCaigue’s arguments fail.4 Accordingly, we affirm
the trial court’s orders dismissing all of her claims against the defendants.

By the Court.—Orders affirmed.

4
It does not appear that McCaigue is appealing any of her claims that were dismissed on
grounds other than being time barred by the applicable statutes of limitations. Issues not briefed
on appeal are deemed abandoned. Cosio v. Medical Coll. of Wis., Inc., 139 Wis. 2d 241, 242-43,
407 N.W.2d 302 (Ct. App. 1987).

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No. 2018AP1888

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

8