# Landess v. Schmidt

> Court of Appeals of Wisconsin · September 26, 1983 · 115 Wis. 2d 186

URL: https://www.frixlaw.com/law-library/cases/9670547

## Case

- **Full name:** Edgar Landess, Plaintiff-Appellant, v. John Schmidt, Larry Nicosen, Howard Gundrum, Janice Gundrum, John W. Hansen, Borden, Inc., and Neal Rosinsky, Defendants-Respondents
- **Court:** Court of Appeals of Wisconsin
- **Decided:** September 26, 1983
- **Citations:** 115 Wis. 2d 186; 340 N.W.2d 213; 1983 Wisc. App. LEXIS 4041
- **Precedential status:** Published
- **Opinion:** Concurring in part by Moser
- **Judges:** Wedemeyer, Decker, Moser
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9670547

## How later opinions describe it (automated extraction)

- explaining that, with limited exceptions, the preclusive effect of a judgment extends to all persons who have a relationship with the defendant “such that one of them is vicariously responsible for the conduct of the other” (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 51 (A.L.…
- stating that in applying this element of claim preclusion, the court should view the claim in factual terms and make it coterminous with the transaction regardless of the number of substantive theories or forms of relief available
- discussing "collateral estoppel" (now issue preclusion)

## Opinion text

MOSER, J.
(concurring in part; dissenting in part). I concur in the majority opinion that the trial court was correct in dismissing this case against Borden, Inc. and its employees under the doctrine of res judicata,.
I dissent from the dismissal of the conspiracy claim under sec. 134.01, Stats., however, against Howard Gun-drum, Janice Gundrum and John W. Hansen, the milk haulers, on either res judicata or collateral estoppel grounds. Clearly, res judicata does not apply. The milk haulers were not parties to the original action against Borden in federal court, nor were they Borden’s privies. 1
In this case Landess sues the milk haulers for conspiracy. The majority hinges its affirmance of the trial court, in part, on the fact that Landess cannot prove his conspiracy charge between Borden and the milk haulers because of the prior federal dismissal, but this ruling does not address whether the Gundrums and Hansen are conspirators among themselves under sec. 134.01, Stats.
The Gundrums and Hansen are two or more persons, Landess complains, who together willfully undertook to
*206 injure his trade or business 2 and thereby damaged him. 3 We must read complaints liberally. 4 A liberal construction of the complaint against the Gundrums and Hansen is that they conspired with each other, in violation of sec. 134.01, Stats., to Landess’ civil damage. Landess is not, therefore collaterally estopped from litigating the issue of conspiracy among the milk haulers to ruin Landess’ trade or business.
I would reverse that part of the judgment dismissing Landess’ complaint against the Gundrums and Hansen and remand the matter for trial.
DePratt v. West Bend Mut. Ins. Co., 113 Wis. 2d 306, 311 , 334 N.W.2d 883, 885 (1983).
Sec. 134.01, Stats.
Onderdonk v. Lamb, 79 Wis. 2d 241, 247 , 255 N.W.2d 507, 510 (1977); Radue v. Dill, 74 Wis. 2d 239, 245 , 246 N.W.2d 507, 511 (1976).
Zinn v. State, 112 Wis. 2d 417, 423 , 334 N.W.2d 67, 70 (1983).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9670547. Public record. Not legal advice.