author: VERGERONT, J.

text:
    Nina Manke and Johanna L. Manke, Plaintiffs-Appellants, v. Physicians Insurance Company of Wisconsin, Inc., David J. Hendrickson, M.D., Franciscan Skemp Medical Center, a/k/a Franciscan Skemp Healthcare, Inc., Wisconsin Patients Compensation Fund, WEA Insurance and ABC Insurance Company, Defendants-Respondents.
    Court of Appeals

      No. 2005AP1103.

      Submitted on briefs December 7, 2005.

      Decided February 9, 2006.

    2006 WI App 50
    (Also reported in 712 N.W.2d 40.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Gregory J. Egan, Esquire, O'Flaherty Heim Egan, Ltd., La Crosse.
    On behalf of the defendant-respondent, Wisconsin Patients Compensation Fund, the cause was submitted on the brief of Tom Rusboldt and Christine A. Gimber, Weld, Riley, Prenn & Ricci, S.C., Eau Claire; and on behalf of the defendants-respondents, Physicians Insurance Company of Wisconsin, Inc., David J. Hendrick-son, M.D., and Franciscan Skemp Medical Center, the cause was submitted on the brief of John W. Markson and Sheila M. Sullivan, Bell, Gierhart & Moore, S.C., Madison.
    Before Dykman, Vergeront and Deininger, JJ.

       Petition to review denied 5-9-06.

   VERGERONT, J.

¶ 1. In this medical malpractice action, the primary issue on appeal is whether the circuit court erred in setting aside the jury verdict against the defendants and ordering a new trial because a juror brought a dictionary definition of "neglect" into the jury room. The circuit court determined that this was extraneous information and was prejudicial. While we agree that the circuit court made some legal errors in arriving at its conclusion, we affirm because the competent juror testimony supports the circuit court's factual determinations and satisfies the correct legal standard for a new trial. We also affirm the circuit court's decision that the new trial should be on the issue of causation as well as on negligence.

¶ 2. A secondary issue is whether the circuit court erred in dismissing the Wisconsin Patients Compensation Fund before the new trial. For the reasons we explain in this opinion, we conclude the circuit court did not err and we affirm the order dismissing the Fund.

BACKGROUND

¶ 3. Johanna Manke, then seventeen, jumped into a friend's swimming pool and felt the onset of pain. She sought medical care at the emergency room of Franciscan Skemp Medical Center and was treated by David Hendrickson, MD. Johanna and her mother, Nina Manke, (collectively, the Mankes) filed this action alleging that the medical center and Dr. Hendrickson were negligent and their negligence caused injuries to Johanna and damages to both her and her mother. The complaint also named the Fund as a defendant.

¶ 4. The case was tried to a jury on the issues of negligence, causation, and damages. On the second day of jury deliberations, before the jury returned its verdict, the parties entered into a "high-low" agreement on the record in open court. Under the agreement the defense was to pay at least $100,000, even if the jury returned a verdict of no liability, and was to pay no more than $800,000, even if the verdict on damages was for more than that; if the verdict on damages was between $100,000 and $800,000, the defense was to pay the verdict amount plus costs. The parties stipulated that this agreement presumed a "legally sufficient jury verdict."

¶ 5. The jury returned its verdict later the same day. It found that Dr. Hendrickson was negligent in his care and treatment of Johanna and that this negligence was a cause of Johanna's injuries. The verdict form given the jury identified $71,967.45 as the amount of past healthcare expenses for Johanna. The jury awarded Johanna $245,000 for future healthcare expenses and $675,000 for pain, suffering, and disability; it awarded $5,000 to her mother for services rendered to Johanna. The verdict form did not indicate any dissents to the questions on negligence and causation, but did indicate dissents on elements of the damages.

¶ 6. About three weeks after the verdict was returned, Dr. Hendrickson filed a motion asking the court to set aside the verdict and order a new trial on the ground that inappropriate material had been introduced into the jury room and it was prejudicial to the defense. Accompanying the motion was an affidavit of a paralegal employed by defense counsel that averred as follows. Defense counsel informed him that counsel had learned from jurors Maria Stevens and Donald Bahr that another juror had brought a dictionary definition of "negligence" into the jury room. At counsel's instruction the paralegal attempted to contact all of the jurors and was successful in speaking to three: Stevens, Jennifer Flottmeier, and John Parins. While none of the three was willing to sign an affidavit, Stevens confirmed what she had told defense counsel. Flottmeier stated that one of the jurors photocopied a dictionary definition of "negligence" and shared it with the jury as a whole after deliberations commenced on the second day; the group discussed the definition during its deliberations; and the definition helped to sway "quite a few" jurors toward deciding that Dr. Hendrickson was negligent. Parins stated that the jury was split on the question of Dr. Hendrickson's negligence during the first day of deliberations; on the second day a juror brought in a dictionary definition of "negligence," which he shared with other jury members; that juror told the others that during the first day he had been uncertain whether Dr. Hendrickson was negligent, but reading the definition convinced him that Dr. Hendrickson was negligent; the dictionary definition became part of the discussion in the deliberation process; it helped to sway the thinking of other jurors in a similar manner; and he, Parins, considered the definition "useful."

¶ 7. The Mankes opposed the motion and submitted the affidavit of juror Bahr. Bahr averred that before the jury left the courtroom on the first day of deliberations it had reached a verdict on the first question regarding negligence: eleven jurors agreed that Dr. Hendrickson was negligent and one was undecided or dissenting on this issue. He also averred that no extraneous information such as a dictionary definition was discussed on the first day prior to the time the jury decided to answer the first question "yes." The Mankes also submitted the affidavit of their counsel to which was attached the definitions of "negligence" from a number of different dictionaries.

¶ 8. Based on these affidavits, the parties' briefs, and their arguments, the court concluded that Dr. Hendrickson had made a sufficient showing to entitle him to an evidentiary hearing at which the jurors would testify. The court explained that the submissions had established a prima facie case that extraneous information was improperly brought to the attention of the jurors and was potentially prejudicial. On this last point, the court noted that it was not known what specific definition was brought in, but its own review of a few dictionaries indicated that some definitions of "negligence" mentioned repeated acts or recklessness. The court also reasoned that the definition of "negligence" in a medical malpractice case is technical and different from "the standard negligence definition." The court's comments also suggest that the court wanted to evaluate whether a dictionary definition was actually provided to the jurors and, if it was, the circumstances surrounding the incident. The Mankes' counsel proposed that instead of subpoenaing all twelve jurors, the first step should be obtaining the dictionary definition from the juror who brought it in. However, the court decided to proceed with a hearing.

¶ 9. At the evidentiary hearing all twelve jurors were examined by defense counsel and cross-examined by the Mankes' counsel. Juror Matt Knutson testified that on the morning of the second day of deliberations he brought in a copy of a dictionary page containing the definition of "neglect." This page was admitted into evidence. The definition of "neglect" on this page is: "1. To pay no attention to: ignore. 2. To fail to give proper care or attention to. 3. To fail to do or accomplish, as through carelessness." Knutson had highlighted the first two definitions. He did not show the page to the other jurors but read to them the second definition of "neglect." On the photocopied page, the third entry below "neglect" is "negligent": "1. Marked by or inclined to neglect, esp. habitually. 2. Extremely heedless."

¶ 10. None of the other jurors disputed that a juror had brought in a dictionary definition on the morning of the second day, although one juror did not remember. The jurors' testimony varied on what word was defined — "neglect," "negligence" or "negligent"— with two not remembering what the word was. There was also a conflict in the testimony over whether juror Knutson simply read the definition aloud or also showed it to other jurors.

¶ 11. Defense counsel asked all the jurors what the vote on the negligence question had been at the end of the first day, what discussion had occurred about the dictionary definition, and how the definition had affected their views. The Mankes' counsel objected to these questions based on the jurors' incompetency under Wis. Stat. § 906.06. The court overruled the objections and allowed the jurors to testify on these matters.

¶ 12. After the close of evidence and argument, the court made the following factual findings. At the end of the first day of deliberations, ten jurors had not agreed on the answer to the first question, which asked whether Dr. Hendrickson was negligent, and at the beginning of the second day they were still discussing that question. A juror brought in a photocopy of "neglect," not "negligent" or "negligence," and shared the definition with others. The juror must have done more than read the definition to the others, because at least one juror testified that the definition had been highlighted. At least some of the jurors, and "probably all," saw not only the highlighted definitions of "neglect" but "everything as far as [the photocopy of the dictionary page] is concerned." The definition was discussed by the other jurors and at some point after that the vote changed. As to the effect of the definition on the jurors, the court noted that the juror who brought it in had clearly testified that he changed his mind based on the definition; one other juror seemed to have been affected by it; and it was hard to tell about the others.

¶ 13. Based on its findings, the court determined that the defense had met its burden to establish that extraneous information was brought into the jury room. As for whether this information was prejudicial, the court referred to case law using the term "potentially prejudicial" and determined that standard was met. The court also decided that, even if Dr. Hendrick-son had to show actual prejudice, he had done so because one juror testified that the information had changed his mind, and another said that the jurors "had their eyes opened because of it." In its discussion of prejudice, the court observed that the definition of "neglect" was not the standard in a medical malpractice case, which has a "particular, unique, and somewhat technical definition."

¶ 14. After making this ruling the court addressed the scope of the new trial. Dr. Hendrickson's position was that it should be on negligence and causation, but not damages. The Mankes' position was that the new trial should be on negligence only. The Fund stated that the new trial should not be on damages and it had no position on the other issues. The court accepted the parties' agreement that the new trial should not include damages. This prompted the Fund to request the court to dismiss it from the case because the damage award was less than the $1,000,000 coverage limits of Dr. Hendrickson's insurance. The Mankes' counsel responded that it was premature to dismiss the Fund because the Mankes intended to appeal. The Fund's counsel replied that it was seeking a dismissal only at the circuit court level. There was no further comment by the parties, and the court granted the motion.

¶ 15. Subsequently the court issued a written decision in which it held that the new trial should be on causation as well as negligence. The court reviewed the evidence at trial and concluded that the issues of negligence and causation were so closely related that they were "almost the same question" and therefore the dictionary definition of "neglect" probably affected the jury's decision on causation.

DISCUSSION

I. New Trial Based on Prejudicial Extraneous Information

¶ 16. The Mankes contend that the circuit court erred in setting aside the verdict and ordering a new trial based on the dictionary definition brought into the jury room by a juror because: (1) Dr. Hendrickson did not make a sufficient preliminary showing to entitle him to an evidentiary hearing at which the jurors testified; (2) the court relied on incompetent testimony under Wis. Stat. § 906.06(2); and (3) the standard for prejudice was not met.

A. Applicable Legal Standards

¶ 17. A party is entitled to a new trial when prejudicial extraneous information is brought to the attention of the jury. See State v. Eison, 194 Wis. 2d 160, 171-73, 533 N.W.2d 738 (1995). In general, a circuit court's decision whether to grant a motion for a new trial involves the court's exercise of discretion. Id. at 171. We affirm discretionary decisions if the record shows the court considered the facts of the case and arrived at a reasonable conclusion based on the applicable law. Id. A motion for a new trial on the ground of prejudicial extraneous information requires the circuit court to make a number of underlying evidentiary, factual, and legal determinations, and we apply different standards of review to these underlying determinations depending on the nature of the determination. See id. A circuit court's erroneous view of the facts or law constitutes an erroneous exercise of discretion. Id. at 171.

¶ 18. If the evidence supporting the ground for a new trial depends upon the testimony of a juror, the circuit court must first make the evidentiary determination whether the juror is competent to testify under Wis. Stat. §906.06(2). Eison, 194 Wis. 2d at 172. Section 906.06(2) provides:

(2) INQUIRY INTO VALIDITY OF VERDICT OR INDICTMENT. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon the juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may the juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received.

¶ 19. In order for a juror's testimony to be competent under the "extraneous information" exception, the moving party must establish: "(1) that the juror's testimony concerns extraneous information (rather than the deliberative process of the jurors), (2) that the extraneous information was improperly brought to the jury's attention, and (3) that the extraneous information was potentially prejudicial." Eison, 194 Wis. 2d at 172 (citations omitted). Information is "improperly brought to the jury's attention" even if only one juror possesses the information. Castaneda v. Pederson, 185 Wis. 2d 199, 211, 518 N.W.2d 246 (1994). While the admissibility of evidence in general involves the exercise of discretion, the construction and application of the standards in an evidence statute may involve questions of law, which we review de novo. See State v. Peters, 166 Wis. 2d 168, 175, 479 N.W.2d 198 (Ct. App. 1991).

¶ 20. If the circuit court decides that a juror's testimony is competent under Wis. Stat. § 906.06(2), the court then determines whether the competent juror testimony and any other admissible evidence establishes that the moving party is entitled to a new trial. After Hour Welding, Inc. v. Laneil Mgmt. Co., 108 Wis. 2d 734, 740-41, 324 N.W.2d 686 (1982). "This is not a requirement of [§ 906.06(2)], since that section deals only with the competency to testify and the admissibility of evidence." Id.

¶ 21. When the ground for the new trial is prejudicial extraneous information, the court must make both a factual and a legal determination in order to decide whether to grant a new trial. State v. Broomfield, 223 Wis. 2d 465, 479, 589 N.W.2d 225 (1999). First, the court must decide whether there is "clear, satisfactory, and convincing evidence that the juror made or heard the statements or engaged in the conduct alleged." Id. at 479. We affirm the circuit court's findings of fact unless they are clearly erroneous. See id. at 480.

¶ 22. Second, if the circuit court determines that the evidence is clear, satisfactory, and convincing, it must then make the legal determination whether the extraneous information constitutes prejudicial error requiring reversal of the verdict. Id. at 479. In a civil case the prejudice inquiry asks whether there is a reasonable probability that the extraneous information would have a prejudicial effect upon a hypothetical average juror. Castaneda, 185 Wis. 2d at 212. Because this is a question of law, our review is de novo. Id.

¶ 23. With this framework established, we analyze each of the Mankes' contentions of error.

B. Propriety of an Evidentiary Hearing

¶ 24. The Mankes contend that the paralegal's affidavit was insufficient to permit the circuit court to hold an evidentiary hearing because the affidavit did not aver facts that, if true, would require a new trial. In support of this contention, the Mankes make two arguments: (1) a dictionary definition of a common word is not "extraneous information," and (2) because the affidavit does not identify the particular definition, there was no showing of prejudice.

¶ 25. The Mankes are correct that a party seeking to set aside a verdict on the ground of prejudicial extraneous information is not automatically entitled to an evidentiary hearing at which jurors testify. In State v. Marhal, 172 Wis. 2d 491, 497, 498 n.5, 493 N.W.2d 758 (Ct. App. 1992), we stated that, in order to obtain an evidentiary hearing at which jurors testify, the moving party must make a preliminary showing by affidavit or nonjuror evidence that the subject matter of the proposed hearing is within an exception in Wis. Stat. § 906.06(2) and must assert facts that, if true, would require a new trial. In Marhal, these two showings were distinct issues because the asserted ground for a new trial was not prejudicial extraneous information but bias displayed by jurors' words or conduct during deliberations. Id. at 493-94. We concluded that neither showing was made. Id.

¶ 26. In this case, because the asserted ground for a mistrial is prejudicial extraneous information, the Mankes' contention that the affidavit does not set forth facts showing extraneous information is a challenge both to the admissibility of the jurors' statements under Wis. Stat. § 906.06(2) and to the sufficiency of the substantive showing of entitlement to a new trial. In addition, in order to determine the sufficiency of the substantive showing, it is necessary to first decide what, if any, juror statements in the paralegal's affidavit are admissible under § 906.06(2). We therefore begin with the issue of the competency of the jurors' statements related in the paralegal's affidavit, addressing the Man-kes' contentions in that context; we then consider whether the competent statements make a sufficient substantive showing for an evidentiary hearing.

1. Preliminary Showing of Competency

¶ 27. We address first the Mankes' argument that the three jurors' statements related in the paralegal's affidavit do not show extraneous information because a dictionary definition of "negligence," a common word, is not extraneous information under Wis. Stat. § 906.06(2). We view this argument as presenting a question of law, which we review de novo. See State v. Messelt, 185 Wis. 2d 254, 274-76, 518 N.W.2d 232 (1994) (supreme court apparently deciding de novo that the information there met the definition of "extraneous").

¶ 28. Neither party has brought to our attention a published Wisconsin decision directly addressing and resolving this issue. In State v. Ott, 111 Wis. 2d 691, 696-97, 331 N.W.2d 629 (Ct. App. 1983), a case cited by neither party, we decided that the defendant was entitled to a new trial because a dictionary definition of "depraved" brought to the jury room by a juror probably had a prejudicial effect on the hypothetical average juror. Although we referred to the dictionary definition as "extraneous material," id. at 696, there was no dispute on that point; thus, there was no need to decide whether the definition was "extraneous material." The same is true of Banaszek v. F. Mayer Boot & Shoe Co., 155 Wis. 127, 143 N.W. 1062 (1913), which Dr. Hendrickson cites: there the court affirmed a circuit court's determination of prejudice but did not decide whether the dictionary definition was "extraneous information."

¶ 29. The supreme court has defined "extraneous information" as "knowledge coming from the outside." State v. Shillcutt, 119 Wis. 2d 788, 794, 350 N.W.2d 686 (1984) (defining "extraneous" as something "existing or originating outside or beyond: external in origin: coming from the outside"). Extraneous information is information that is neither of record nor in the general knowledge and accumulated life experiences we expect jurors to possess. Castaneda, 185 Wis. 2d at 210; Johnson v. Agoncillo, 183 Wis. 2d 143, 162, 515 N.W.2d 508 (Ct. App. 1994). The court in Castaneda concluded that a statistic on average medical malpractice awards that a juror obtained by going to the public library and shared with other jurors was extraneous information. 185 Wis. 2d at 210. The court explained that this was not "the general knowledge about damage awards that we expect jurors to possess," but a precise statistic obtained not from the record but from the juror's independent research. Id. In contrast, this court in Johnson concluded that jurors' knowledge that a physician's career might be adversely impacted by a finding of medical malpractice is not " 'beyond the jurors' general knowledge and accumulated life experiences.' " 183 Wis. 2d at 162 (citation omitted).

¶ 30. In this case, according to the paralegal's affidavit, the information the juror shared with the other jurors was not his understanding of what negligence means based on his own experiences. Rather, he read the definition he found in a dictionary. We conclude that a specific dictionary definition of a word— even a common word — is not the type of general knowledge or accumulated life experiences that we expect jurors to possess. In addition, the only reasonable inference from the jurors' statements in the affidavit is that the dictionary definition the juror read was not part of the trial record but was the result of the juror's independent consultation of a dictionary. We therefore conclude that the dictionary definition of "negligence," which, the three jurors stated, was brought to the jury room and read aloud by another juror, was "extraneous information."

¶ 31. We observe that the Mankes do not argue that, if the dictionary definition is extraneous information, it was properly brought to the jury's attention. Because "[information not on the record is not properly before the jury," Eison, 194 Wis. 2d at 175 (citations omitted), this is an appropriate concession.

¶ 32. We next consider the Mankes' argument that the paralegal's affidavit is insufficient because it does not state what definition of "negligence" was read to the jury and, thus, it does not show prejudice. The standard for prejudice when analyzing competency is lower than the standard for prejudice when deciding whether a new trial is warranted. Broomfield, 223 Wis. 2d at 478, citing Messelt, 185 Wis. 2d at 276. In order for a juror's testimony to come within the extraneous information exception under Wis. Stat. § 906.06(2), the information must be "potentially prejudicial," meaning "information that conceivably relates to a central issue of the trial." Broomfield, 223 Wis. 2d at 478, citing Eison, 194 Wis. 2d at 176. Without question a dictionary definition of "negligence" relates to a central issue of the trial in this case on the Mankes' claim that Dr. Hendrickson was negligent. Thus, whether we view the issue of "potential prejudice" as a discretionary decision on which we defer to the circuit court or a question of law subject to de novo review, our conclusion is the same: the circuit court did not err in deciding that there was potential prejudice even though the affidavit did not identify the particular definition of "negligence" read to the jurors.

¶ 33. We conclude that the jurors' statements in the paralegal's affidavit — that a juror brought in a dictionary definition of "negligence" on the morning of the second day of deliberations and read it to them— come within the extraneous information exception in Wis. Stat. § 906.06(2) and are thus competent testimony. The three jurors' testimony on these points therefore would be admissible at an evidentiary hearing.

¶ 34. We agree with the Mankes that other juror statements in the paralegal's affidavit are not, as a matter of law, competent testimony under Wis. Stat. § 906.06(2). The juror statements on how the dictionary definition affected their views and the views of other jurors on Dr. Hendrickson's negligence is incompetent testimony under § 906.06(2). It is testimony on "the effect of [the definition] upon the juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict... or concerning the juror's mental processes in connection therewith"; and it does not come within the exception for testimony on "whether extraneous prejudicial information was improperly brought to the jury's attention ...." Section 906.06(2).

¶ 35. In order to constitute competent testimony, a juror's testimony must concern the extraneous information rather than the thought processes or deliberations of the jurors. State v. Poh, 116 Wis. 2d 510, 520, 343 N.W.2d 108 (1984). Thus, a juror's testimony on how the jurors considered another juror's remark is not competent "because it impermissibly offers evidence of a juror's subjective mental processes." Messelt, 185 Wis. 2d at 281. See also Castaneda, 185 Wis. 2d at 217 (restrictions on admissibility of juror testimony in Wis. Stat. § 906.06(2) barred jurors from testifying on whether the extraneous information affected their deliberations); Eison, 194 Wis. 2d at 176 (inquiry into jurors' interpretations of results of experiment with extraneous object during jury deliberations would improperly invade mental process of the jury, resulting in incompetent testimony under § 906.06(2)).

¶ 36. Because the circuit court here did not refer to the incompetent juror statements in explaining why an evidentiary hearing was necessary, we have no basis for believing, as the Mankes appear to suggest, that the court considered the incompetent statements in making that decision. In any event, in reviewing whether the circuit court properly granted an evidentiary hearing, we consider only those juror statements in the paralegal's affidavit that we have concluded are competent under Wis. Stat. § 906.06(2).

2. Preliminary Showing of Substantive Grounds

¶ 37. We now turn to the Mankes' argument that the competent juror statements in the affidavit, if true, do not entitle Dr. Hendrickson to a new trial, and the circuit court therefore erred in holding an evidentiary hearing. We have already concluded that the competent statements show that the dictionary definition was extraneous information improperly brought to the attention of the jurors. If the circuit court believed these statements, it could find they constituted clear and convincing evidence that a juror brought extraneous information to the attention of the other jurors. As we have explained above, the other determination necessary for a new trial is that there is a reasonable probability that the extraneous information would have a prejudicial effect upon a hypothetical average juror. Castaneda, 185 Wis. 2d at 210, 212. We understand the Mankes to argue that there was an insufficient factual basis to support this legal conclusion without an identification of the particular definition of negligence read to the jurors, and, thus, the circuit court could not properly hold an evidentiary hearing. We disagree.

¶ 38. We first observe that it is not always necessary to determine the exact dictionary definition of a word that is brought into the jury room in order to determine whether it had a probable prejudicial effect upon the hypothetical average juror. This principle is illustrated by Ott, where we agreed with the circuit court that the specific dictionary definition of "depraved" brought into the jury room did not need to be identified in order to determine whether there was prejudice. 111 Wis. 2d at 695-96. In Ott, several dictionary definitions were attached to the moving party's briefs, and, we stated, "we researched a number of others." Id. at 695. Because none of these definitions of "depraved" contained an element that was in the jury instruction, we concluded that it was not possible that the definition actually brought in contained this element. Id. We then concluded that the dictionary definition brought in "was sufficiently broader than the technical meaning embodied in the instruction" such that "the probable effect upon a hypothetical average juror would be prejudicial." Id. at 696.

¶ 39. In this case, unlike Ott, the circuit court decided that it could not make a determination on the prejudice required for a new trial without knowing what the dictionary definition was. We do not agree with the Mankes that our statement, in Marhal — that "the preliminary showing must assert facts, that, if true, would require a new trial," 172 Wis. 2d at 497— prohibits the circuit court from holding a hearing in these circumstances. Our statement in Marhal was made in the context of explaining why the circuit court there improperly held a hearing at which jurors testified, based on a motion that sought a hearing "to form a factual basis" for the allegations in the motion, which allegations, in any event, did not come close to meeting the applicable standard for a new trial. Id. at 494, 497, 498-99 n.5. Because the preliminary showing in Marhal was so wholly inadequate, we did not address the level of detail needed for a sufficient showing.

¶ 40. The Mankes' reading of Marhal is not consistent with supreme court cases decided both before and after Marhal in which the supreme court has either implicitly or explicitly approved of a circuit court holding an evidentiary hearing to gather additional facts after a preliminary showing of extraneous information improperly brought to the attention of the jurors. See, e.g., After Hour Welding, 108 Wis. 2d at 742-43 (court remands for hearing to take evidence on matters including when specifically the statement was made, what the circumstances were, what jurors were present, and "other relevant facts about the statement which will assist the trial court to assess the prospect of unfair prejudice"); Poh, 116 Wis. 2d at 514-15 (after receiving an affidavit and statements from some jurors that during deliberations two jurors made comments about the defendant's prior driving record, circuit court held an evidentiary hearing in which eleven of the twelve jurors were questioned to determine whether information outside the record had been brought to their attention, the nature of the information, and the circumstances under which it had been brought to their attention); Shillcut, 119 Wis. 2d at 791, 792 (circuit court held hearing questioning affiant juror on what jurors were present when statement was made and when it was made); Messelt, 185 Wis. 2d at 282 (circuit court's handling of motion for new trial based on prejudicial extraneous information was "altogether appropriate" where "[t]he court considered [the defendant's] motion [and] exercised its discretion to allow [the defendant] to question the jurors at the post-conviction hearing . ..

¶ 41. We harmonize these supreme court cases and Marhal, 172 Wis. 2d at 497, with this holding: where a motion for a new trial is based on prejudicial extraneous information, the circuit court may grant an evidentiary hearing upon an affidavit that shows juror statements that are competent testimony and, if believed, are clear and convincing evidence of extraneous information that is potentially prejudicial. In these circumstances a circuit court may properly hold an evidentiary hearing both to evaluate the credibility of the initial statements, see After Hour Welding, 108 Wis. 2d at 742-43, and to obtain additional competent testimony bearing on prejudice such as the specific nature of the extraneous evidence and the circumstances under which it came to the jury's attention. See id. and Poh, 116 Wis. 2d at 515.

¶ 42. The paralegal's affidavit here made the requisite showing for holding an evidentiary hearing under this standard and the court's explanation on the purpose of the hearing meets this standard. Accordingly, the circuit court's decision to hold an evidentiary hearing was proper. The court did not need to accept the Mankes' suggestion of ascertaining the exact dictionary definition without a hearing. The court could reasonably decide that a hearing would accomplish the purpose of learning the exact definition, as well as providing an opportunity to assess credibility and to learn more about the circumstances that might bear on prejudice.

C. Competency of Testimony at Hearing

¶ 43. We next consider the Mankes contentions that the circuit court erred in allowing the defense attorney at the hearing to examine Knutson and the other jurors on the effect the definition had on them and the role it played in their discussions and, further, erred in relying on this testimony in determining prejudice. We agree with the Mankes.

¶ 44. As we have already explained in the context of analyzing the paralegal's affidavit, juror testimony on the effect of extraneous information is not competent testimony under Wis. Stat. § 906.06(2). See ¶¶ 34-35. The Mankes objected to the questions on this topic and the circuit court overruled the objections. This was an erroneous exercise of discretion because the court failed to apply the correct legal standard. See Eison, 194 Wis. 2d at 171.

¶ 45. When a circuit court decides to conduct an evidentiary hearing to determine whether a new trial is warranted based on prejudicial extraneous information, it "must exercise great care to prevent questions concerning the thought processes of the juror or jurors." After Hour Welding, 108 Wis. 2d at 743. The court must not allow inquiry into the effect of the extraneous information; rather, the court determines the effect as a matter of law. Id. Indeed, it is precisely because the effect of extraneous information on jurors' thoughts and deliberations is not admissible that the standard for prejudice is an objective one. See id. at 741.

¶ 46. In this case the circuit court apparently did not apply the objective standard of the probable effect on a hypothetical average juror. Instead, it appears to have applied a standard of actual prejudice, inquiring whether any of these particular jurors were affected by the dictionary definition. Thus, its determination that there was prejudice was based on incompetent testimony and an incorrect legal standard.

¶ 47. Although we agree with the Mankes that the court erred in allowing the jurors to testify on the effect of the dictionary definition and the role it played in their discussions, and also erred in applying an incorrect legal standard to that incompetent testimony, we do not agree that this in itself requires a reversal of the circuit court's decision.

¶ 48. The circuit court's factual determination that there was clear and convincing evidence that extraneous information was brought into the jury room is not based on incompetent testimony and is supported by competent testimony. The competent testimony amply supports the circuit court's finding that on the morning of the second day of deliberations, juror Knut-son brought in a photocopy of a dictionary definition of "neglect" and read it to all the jurors and showed it to at least some jurors.

¶ 49. As for the issue of prejudice, because this is a question of law, we can decide it de novo, applying the correct legal standard to the undisputed competent testimony and to the facts found by the circuit court that are supported by competent testimony. We turn to this issue now.

D. Prejudice

¶ 50. The Mankes contend that, based on the competent testimony at the hearing, there is not a reasonable probability that the dictionary definition juror Knutson read to the jurors would have a prejudicial effect upon the average hypothetical juror.

¶ 51. "In determining the probable effect on an average jury we consider factors such as the nature of the extraneous information, the circumstances under which it was brought to the jury's attention, the nature of the plaintiffs case and the defense, and the connection between the extraneous information and a material issue in the case." Castaneda, 185 Wis. 2d at 212-13 (citations omitted). Relevant circumstances include the relation between the extraneous information and the topic under deliberation when it is introduced. Id. at 214-15. When the extraneous information is a dictionary definition, a comparison of the definition to the jury instructions is a relevant factor. Ott, 111 Wis. 2d at 694-96.

¶ 52. As we have already stated, the negligence of Dr. Hendrickson was a central issue at the trial: the first of the four verdict questions asked whether he was negligent with respect to his care and treatment of Johanna Manke. Without the trial transcript, we cannot make a more specific assessment of how the Man-kes' case and Dr. Hendrickson's defense might bear on the dictionary definition's effect on a hypothetical average juror. However, it is evident from the parties' briefs, what there is of the record, and the circuit court's decision that significant conflicting evidence focused on this issue and the jurors were aware of its importance.

¶ 53. This jury was instructed on negligence in accordance with Wis JI — Civil 1023, as follows:

In diagnosing Johanna Manke's condition, Dr. David Hendrickson was required to use the degree of care, skill, and judgment which reasonable emergency medicine physicians would exercise in the same or similar circumstances, having due regard for the state of medical science at the time Johanna Manke was diagnosed. A doctor who fails to conform to this standard is negligent. The burden is on Johanna Manke to prove that Dr. Hendrickson was negligent.
A doctor is not negligent, however, for failing to use the highest degree of care, skill and judgment, or solely because a bad result may have followed his care and diagnosis. The standard you must apply in determining if Dr. Hendrickson was negligent is whether Dr. Hen-drickson failed to use the degree of care, skill, and judgment which reasonable emergency medicine physicians would exercise given the state of medical knowledge at the time of the diagnosis in issue.
If you find from the evidence that more than one method for diagnosing Johanna Manke's condition was recognized as reasonable given the state of medical knowledge at that time, then Dr. Hendrickson was at liberty to select any of the recognized methods. Dr. Hendrickson was not negligent because he chose to use one of these recognized diagnostic methods rather than another recognized method if he used reasonable care, skill, and judgment in administering the method.
You have heard testimony during this trial from doctors who have testified as expert witnesses. The reason for this is because the degree of care, skill, and judgment which a reasonable doctor would exercise is not a matter within the common knowledge of laypersons. This standard is within the special knowledge of experts in the field of medicine and can only be established by the testimony of experts. You, therefore, may not speculate or guess what the standard of care, skill and judgment is in deciding this case but rather must attempt to determine it from the expert testimony that you heard during this trial.

¶ 54. The dictionary definition of neglect that juror Knutson testified he read to the jurors was: "to fail to give proper care or attention to," and this is significantly different from the jury instruction. The jury instruction is precise, objective, and technical, while the dictionary definition is more generally and broadly stated. The Mankes argue that the two are consistent because the average juror would look to the jury instruction to inform himself or herself on what is "proper." However, the average juror could also use the dictionary definition instead of the jury instruction and supply his or her own view of what is "proper." The average juror might do this precisely because the jury instruction is more complicated and technical and thus more difficult to understand and apply than the common and broad concept of "neglect." If a juror did apply the dictionary definition juror Knutson read instead of the jury instruction, there is a reasonable probability that the definition would lead to a view of Dr. Hendrickson's liability that is more expansive and subjective than the standard of care defined in the jury instruction.

¶ 55. The Mankes point to the testimony of all the jurors (including Knutson) that they based their verdict only on the evidence and the jury instructions. However, that is not competent testimony, and the circuit court properly did not consider it. Moreover, in Ott, we reversed the circuit court's conclusion of no prejudice based on that circuit court's reasoning that a jury would not ignore the instructions the court told them to follow. We stated: "We believe the very fact that a juror brought in a dictionary definition to the second day of deliberations and made that fact known to the other jurors contradicts the trial court's conclusion." Ott, 111 Wis. 2d at 696. Following our reasoning in Ott, we conclude we should not presume a hypothetical average juror would follow a jury instruction rather than a dictionary definition brought in by a juror; instead, we should base our prejudice analysis on a comparison of the jury instruction with the dictionary definition and on other relevant circumstances.

¶ 56. A highly relevant circumstance here is that juror Knutson brought in and read the dictionary definition to the other jurors when the jurors were in the process of deliberating on that very issue. The circuit court found that, when juror Knutson brought in the definition on the morning of the second day, the jurors were still deliberating on the negligence question. This finding is supported by the record. The timing of reading the definition makes it more likely that the dictionary definition would have an impact on the jury. See Castaneda, 185 Wis. 2d at 214-15.

¶ 57. We conclude there is a reasonable probability that the dictionary definition of "neglect" would have had a prejudicial effect on the hypothetical average juror. The definition, introduced during the discussion of Dr. Hendrickson's negligence, would probably have the effect on the hypothetical average juror of deflecting attention away from the jury instruction on negligence and away from the expert testimony on standard of care and instead focusing attention on what the juror thought was proper, probably resulting in a more expansive view of negligence. Accordingly, the circuit court's conclusion that the extraneous information had a prejudicial effect on the jury's determination of negligence was correct, although it employed an incorrect standard and considered incompetent testimony.

E. Scope of the New Trial

¶ 58. The Mankes argue that, even if the circuit court was correct that the extraneous information required a new trial on negligence, the court erred in deciding that the new trial should be on causation as well as negligence.

¶ 59. The circuit court's decision that causation as well as negligence should be retried was based on its assessment of the relationship of the trial evidence on the two issues. Generally, the decision on the scope of a new trial is committed to the discretion of the circuit court, because the circuit court is in a better position than a reviewing court to decide the relationship of the issues tried. See Badger Bearing, Inc. v. Drives & Bearings, Inc., 111 Wis. 2d 659, 673, 331 N.W.2d 847 (Ct. App. 1983). Where the court is ordering a new trial on some issues and it appears that error may have infected other issues, the circuit court acts properly when it orders a new trial on all issues. Id. We conclude it is appropriate to review the circuit court's decision to retry causation as a discretionary decision.

¶ 60. Because the circuit court's exercise of discretion was based on its analysis of the relationship of the trial evidence on the issues of negligence and causation, a transcript of the trial is necessary for a review of that decision. However, the record does not contain a transcript of the trial. See footnote 1. As the appellant, it is the Mankes' responsibility to present a complete record for the issues on which they seek review, and we assume that any missing material that is necessary for our review supports the circuit court's determination. Fiumefreddo v. McLean, 174 Wis. 2d 10, 26-27, 496 N.W.2d 226 (Ct. App. 1993). We therefore assume a transcript of the trial would support the circuit court's decision to retry the issue of causation as well as negligence, and we affirm this decision without further discussion.

II. Dismissal of the Fund

¶ 61. The Mankes argue that the circuit court erred in dismissing the Fund because it is possible that they will secure a judgment in an amount in excess of $1,000,000 when costs are added to the $996,967 awarded in the verdict. The premise of the Mankes' argument, as we understand it, is twofold: (1) the high-low agreement is no longer valid to limit damages, because the circuit court held that the agreement did not bar Dr. Hendrickson's motion for a new trial based on extraneous information, and, thus, if the Mankes' prevail in a new trial on negligence and causation, they will be entitled to $996,967 plus costs; and (2) in view of Ferdon v. Wisconsin Patients Compensation Fund, 2005 WI 125, ¶ 10, 284 Wis. 2d 573, 701 N.W.2d 440, which holds that the $350,000 cap on non-economic damages in Wis. Stat. § 655.017 and Wis. Stat. § 893.55(4) is unconstitutional, if the Mankes prevail in a new trial on negligence and causation, they will be able to recover the full $650,000 in non-economic damages that the jury awarded.

¶ 62. Neither of the two issues that form the necessary premise to the Mankes' appellate argument was raised in the circuit court. With respect to the high-low agreement, in response to the defense motion for a new trial, the Mankes argued that the court should enforce the agreement. When all parties agreed that there need be no new trial on damages, neither the Mankes nor any other party raised the issue of whether the high-low agreement would apply to limit damages after a new trial on negligence and causation. When the Fund moved for dismissal, the Mankes objected but did not explain the basis for the objection other than that it was "premature" because the Mankes intended to appeal. Thus, the circuit court never ruled on the issue whether the high-low agreement, although not a bar to a new trial on negligence and causation, would nonetheless apply to limit damages, which will not be retried.

¶ 63. With respect to the applicability of Ferdon, that issue was not raised in the circuit court for the obvious reason that Ferdon was decided after the Man-kes filed this appeal.

¶ 64. Generally, we do not address issues that were not first raised in the circuit court. See Wirth v. Ehly, 93 Wis. 2d 433, 443, 287 N.W.2d 140 (1980). We apply that principle here and decline to rule on the applicability of both the high-low agreement and Fer-don to the amount of damages the Mankes may recover if they are successful on the retrial of negligence and causation. Because the Mankes claim of circuit court error in dismissing the Fund is based on two contentions that were never presented to the circuit court and which we decline to address, the Mankes have shown no basis for reversing the order dismissing the Fund. Nothing in our opinion prevents the Mankes from moving the circuit court to reconsider that order for these or other reasons.

CONCLUSION

¶ 65. We affirm the circuit court's order setting aside the jury verdict and granting a new trial on the issues of negligence and causation. We also affirm the order dismissing the Fund.

By the Court. — Orders affirmed.

       There is no transcript from the trial included in the record. We do not rely on the recitation of the trial evidence in the briefs, except in our general statement of the circumstances under which Johanna Manke sought medical care, a point on which all parties agree.

       Although the Mankes argued in the circuit court that the "high-low" agreement precluded the defendants' post-verdict motion for a new trial, they do not renew that argument on appeal. Accordingly, we do not decide whether the agreement precludes a new trial on negligence and causation.

       There are two verdicts in the record, one bearing a handwritten "I" and the other bearing a handwritten "II." They are identical except that verdict II does not contain the names of two jurors dissenting to elements of damages that are shown on verdict I. (Both show the name of a third juror dissenting to two elements of damages.) The parties do not make any distinction between these verdicts in their citations to the record or their arguments. We therefore assume the difference in the verdicts is not significant to the issues on this appeal.

       The motion is brought in the name of Dr. Hendrickson and Physicians Insurance Company of Wisconsin; however, the responsive brief on appeal is filed on behalf of both Dr. Hen-drickson and Franciscan Skemp Medical Center. Because the distinction between Dr. Hendrickson and the Medical Center is not relevant to the issues on this appeal, we will refer only to Dr. Hendrickson.

       From the testimony of all the jurors, it appears that deliberations began late in the day on February 1, 2005.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       As we explain in ¶¶ 19, 20, and 32, "potential prejudice" is a necessary element for the admissibility of juror testimony on extraneous information, and there is a different standard for determining whether extraneous information is prejudicial for purposes of granting a new trial.

       Under Wis. Stat. § 655.27(1) the Fund pays that portion of a malpractice award that is in excess of either the limits required by Wis. Stat. § 655.23(4) or the maximum for which the healthcare provider is insured. The applicable statutory limit here is $1,000,000. Section 655.23(4) (b)2.b.

       The Mankes petitioned for leave to appeal the non-final order granting a new trial, and we granted the request. See Wis. Stat. Rule 809.50.

       We have not followed the organization of issues presented in the Mankes' brief, but instead have organized the issues to track the proper analytical framework as we explain it below.

       The Mankes refer in passing to the paralegal's affidavit as "hearsay" with respect to the three jurors' statements, but do not develop an argument that it was improper for this reason for the court to consider the affidavit to determine if an evidentiary hearing was necessary or appropriate. Accordingly, we do not further address this issue.

       We confine our analysis to the paralegal's affidavit submitted by the defense and do not discuss the affidavit of juror Bahr submitted by the Mankes. If the paralegal's affidavit is a sufficient showing for an evidentiary hearing, then any conflicting competent statements in juror Bahr's affidavit serve only to point out the need for an evidentiary hearing.

       Both parties cite cases from other states, but we resolve the issues presented on this appeal under Wisconsin law.

       In State v. Delgado, 215 Wis. 2d 16, 25 n.2, 572 N.W.2d 479 (Ct. App. 1997), rev'd on appeal on other grounds, 223 Wis. 2d 270, 588 N.W.2d 1 (1999), we stated that Johnson was overruled on other grounds sub silentio by State v. Messelt, 185 Wis. 2d 254, 518 N.W.2d 232 (1994).

       In State v. Ott, 111 Wis. 2d 691, 696-97, 331 N.W.2d 629 (Ct. App. 1983), a criminal case, we used the prejudice test of "probable effect upon a hypothetical average jury" from After Hour Welding, Inc. v. Laneil Management Co., 108 Wis. 2d 734, 740-42, 324 N.W.2d 686 (1982), a civil case. This appears to be an error. In State v. Poh, 116 Wis. 2d 510, 525, 343 N.W.2d 108 (1984), the court decided that the "reasonable probability" test of After Hour Welding could not be applied to a criminal defendant's motion to impeach a verdict and it adopted the "reasonable possibility" test.

       We emphasize that an evidentiary hearing is not always necessary. A circuit court may conclude that an affidavit is sufficiently thorough to permit it to decide without further proceedings whether there is clear and convincing evidence of extraneous information that had a probable prejudicial effect on the hypothetical average juror. After Hour Welding, 108 Wis. 2d at 742-43.

       The standard for prejudice applied in Banaszek v. F. Mayer Boot & Shoe Co., 155 Wis. 127, 143 N.W. 1062 (1913)— which involved a jury definition — was actual prejudice; and the supreme court stated that the circuit court was in a better position than it was to decide the effect on these particular jurors. 155 Wis. at 129-30. Because of this difference in the legal standard for prejudice, we do not agree with Dr. Hendrickson that Banaszek is helpful in resolving the prejudice issue in this case.

       Although juror Knutson testified that he read only the second highlighted definition of "neglect" to the jury — "to fail to give proper care or attention to" — the circuit court in its decision referred not to that definition but to the first highlighted definition "to pay no attention to: ignore." The Mankes base their arguments on the second highlighted definition, contending, as we understand it, that a finding by the circuit court that juror Knutson read the first definition to the other jurors was or would be clearly erroneous. Dr. Hendrickson does not dispute this and in his argument on prejudice does not distinguish between the three definitions for "neglect." We take this as a concession that a finding that juror Knutson read the first highlighted definition aloud to the other jurors would be clearly erroneous and that there is no dispute he read aloud the second. We therefore confine our analysis of prejudice to the second definition: "to fail to give proper care or attention to." Because we conclude that, with this definition, the requisite prejudice standard is met, we do not discuss the other definitions of neglect. For the same reason, we do not discuss the related definition of "negligent," also on the same photocopied page.

       The Mankes also apparently wish to challenge Wis. Stat. § 655.015 on several constitutional grounds. That statute requires that awards of future medical expenses in excess of $100,000 be paid to the Fund, which is to administer them as prescribed by statute. The Mankes point to nowhere in the record showing that they raised in the circuit court any issue relating to § 655.015. Thus, this is not a basis for reversing the circuit court's order dismissing the Fund, although, as noted above, our opinion does not prevent them from moving the circuit court to reconsider that decision for this reason. We observe that in the Mankes appellate brief they state that the issue of the constitutionality of § 655.015 is pending in another case in this court. We have since issued a per curiam decision in that case, Kaul v. St. Mary's Hospital-Ozaukee, 2005 WI App 214, unpublished slip op. at ¶ 20 (Aug. 31,2005). We declined in Kaul to decide the various constitutional challenges to § 655.015, except to note that the equal protection argument had already been rejected by prior case law.


source: Caselaw Access Project

author: FINE, J.

license: Public Domain

text:
    Brew City Redevelopment Group, LLC, Plaintiff-Appellant, v. The Ferchill Group, John T. Ferchill, Wispark, LLC, Jerold P. Franke, Juneau Avenue Partners, LLC, JTMK-Pabst, Ltd., Highland Best, LLC, ABC Company, Inc., or Partnership, DEF Company, Inc., and/or Partnership, Defendants-Respondents.

    Court of Appeals

      No. 2004AP3238.

      Oral argument January 31, 2006.

      Decided February 14, 2006.

    2006 WI App 39
    (Also reported in 714 N.W.2d 582.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of William M. Cannon of Cannon & Dunphy, S.C., of Brookfield. There was oral argument by Sara E. Kaas of Cannon & Dunphy, S.C.

      On behalf of the defendants-respondents, the cause was submitted on the brief and oral argument of Matthew W. O'Neill, of Friebert, Finerty & St. John, S.C., of Milwaukee.
    Before Fine, Curley and Kessler, JJ.

       Petition to review granted 5-9-06.

   FINE, J.

¶ 1. Brew City Redevelopment Group, LLC, appeals, pursuant to our leave, the dismissal, with the limited right to re-plead, of its complaint against The Ferchill Group, John T. Ferchill, Wispark, LLC, Jerold E Franke, Juneau Avenue Partners, LLC, JTMK-Pabst, Ltd., Highland Best, LLC, and various unknown entities. See Wis. Stat. Rule 807.12 (suing fictitious defendants). We affirm and reverse, as indicated below, and remand for further proceedings.

¶ 2. This case concerns the projected development of land in the City of Milwaukee that used to be owned by the Pabst Brewing Company. As with many attempted major developments of potentially very valuable urban land, especially those that come into court, this matter has been marked by ill-will. Yet, as we explain below, this is a fairly straightforward case, revolving around the material written agreements. We first set out the principles that govern our review of what the trial court did, and then, second, apply those principles to the parties' disputes.

I.

¶ 3. As noted, this case comes to us from the trial court's dismissal of Brew City's complaint. Accordingly, our review is de novo and is limited to whether Brew City's complaint asserts claims for which it is entitled to relief. See Methodist Manor of Waukesha, Inc. v. Martin, 2002 WI App 130, ¶ 2, 255 Wis. 2d 707, 709, 647 N.W.2d 409, 410. For the purposes of this review, we accept as true the facts alleged in Brew City's complaint. See ibid. However, "mere conclusory assertions that echo legal or statutory standards are insufficient; a complaint's assertions must 'allege the ultimate facts' that support the plaintiffs claims." Aon Risk Servs., Inc. v. Liebenstein, 2006 WI App 4, ¶ 6, 289 Wis.2d 127, 143, 710 N.W.2d 175, 182 (Ct. App. 2005) (quoted source omitted). A complaint may be dismissed for failure to state a claim only if " 'it is quite clear that under no conditions can the plaintiff recover.'" Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis. 2d 723, 731, 275 N.W.2d 660, 664 (1979) (quoted source omitted). Where a party's claims rest on contract, we must apply the contract's language. Cernohorsky v. Northern Liquid Gas Co., 268 Wis. 586, 593, 68 N.W.2d 429, 433 (1955) (Contract language that is not ambiguous must be enforced as it is written "even though the parties may have placed a different construction on it."); see also Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 38, 284 N.W.2d 692, 702-703 (Ct. App. 1979), aff'd, 100 Wis. 2d 120, 301 N.W.2d 201 (1981). We assess the claims asserted by Brew City's complaint against this background.

¶ 4. Brew City's complaint asserts nine claims, and we set them out in the order they appear in the complaint: (1) against Wispark for breach of contract; (2) against Wispark for breach of an "implied duty of good faith" (uppercasing omitted); (3) against Franke, Ferchill, and JTMK-Pabst for intentional interference with Brew City's contract with Wispark; (4) against Juneau Avenue Partners for "breach of fiduciary duty" (uppercasing omitted); (5) against Wispark for conversion; (6) against all the defendants for "injury to business" under Wis. Stat. § 134.01 (uppercasing omitted); (7) against Franke, Ferchill, and JTMK-Pabst for conspiracy to intentionally interfere with Brew City's contract with Wispark; (8) against Wispark and Juneau Avenue Partners for conspiracy to convert property Brew City alleges belongs to it; and (9) against all the defendants for punitive damages. The trial court dismissed the First and Second Claims, granting Brew City leave to re-plead those claims against Juneau Avenue Partners, and it dismissed outright all the other claims.

II.

¶ 5. By June 5, 2002, Brew City, an entity created by James Haertel, had the right to buy the Pabst property in Milwaukee. On that date, it assigned that right to Wispark, characterized in the complaint as "the real estate development subsidiary of Wisconsin Energy Corporation." Wispark is further described by the complaint as the "sole member" of Highland Best, a limited liability company.

¶ 6. The June 5th assignment to Wispark by Brew City of Brew City's right to buy the Pabst property was reified in a contract bearing that date and executed on behalf of Brew City by Haertel, described in the assignment contract as Brew City's president and chief executive officer, and, on behalf of Wispark, by Franke, described by the contract as Wispark's president. As material to this appeal, according to the June 5th assignment contract:

• Brew City was assigning to Wispark its contractual right to buy the Pabst property;
• Wispark "agrees that upon acquisition" of the Pabst property from Pabst, Wispark "shall convey to" Brew City, "or shall arrange for a direct conveyance from" Pabst "to" Brew City "of fee simple title to the portions of the" Pabst property "known as Buildings No. 27, 28 and 35." Brew City and Wispark "acknowledge and agree that the development and use of' buildings 27, 28, and 35 "shall be subject to mutually agreeable restrictive covenants, which are in accordance with master planning considerations for the" Pabst property development;
• Wispark was to employ Haertel "as a consultant to" Wispark "on terms and conditions (including scope of work) mutually agreeable to the parties for two years after the acquisition of the" Pabst property, and Haertel was to be paid "a fee of $79,000 per year" (parenthetical in original);
• "Subject to the terms and conditions of the [June 5th assignment] Agreement," Wispark "agrees to provide" Brew City "with up to ten percent of the environmental remediation credit that" Wispark "has received from" Pabst "to reimburse" Brew City "for its reasonable out-of-pocket costs associated with environmental remediation" of buildings No. 27, 28, and 35. "Such reimbursement shall be made after" Wispark "has received such funds from" Pabst "and within twenty (20) days after" Brew City "has provided" Wispark "with documentation reasonably satisfactory to" Wispark "that" Brew City "has expended or committed to expend funds equal to the claimed reimbursement" (parenthetical in original);
• "At the closing of the acquisition of the" Pabst property, Brew City "shall be entitled to receive all personal property located in buildings 27, 28 and 35," except for fixtures and other property the June 5th assignment contract characterizes, plus other personal property the June 5th assignment describes; and
• "The parties [that is, Brew City and Wispark] acknowledge that it is" Wispark's "intent to create a new entity to own the" Pabst property. "Subject to compliance with the terms and conditions of this Assignment, and further subject to closing the purchase of the" Pabst property, Brew City "shall be entitled to a five percent ownership interest in such entity."

Significantly, as we will see later, Brew City did not agree in the June 5th assignment contract that Wispark's obligations to Brew City under the contract could be transferred to that "new entity" so as to result in a novation. See Brooks v. Hayes, 133 Wis. 2d 228, 244-245, 395 N.W.2d 167, 173-174 (1986) (Unless the obligee agrees to the release, "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."). Rather, the clause envisioning Wispark's transfer of its right to buy the Pabst property to the "new entity" was specifically made subject to the other "terms and conditions" in the June 5th assignment contract.

¶ 7. Juneau Avenue Partners is the "entity" referred to in the June 5th assignment contract that was created to own the Pabst property. It was, according to Brew City's complaint, "created" on September 6, 2002, and, on the complaint's "information and belief," is "a joint venture" of JTMK-Pabst and Highland Best. JTMK-Pabst is described as "an affiliate of The Ferchill Group," and Highland Best is described as "an affiliate of' Wispark, which, as noted, earlier, is alleged to be Highland Best's sole member. According to Brew City's complaint, at a September 10, 2002, closing, Juneau Avenue Partners purchased from Pabst the property subject to Wispark's June 5th assignment contract with Brew City. We now turn to the complaint's allegations to determine whether they state claims for relief.

A. First Claim: Breach of Contract, Against Wispark.

¶ 8. As we have seen, Wispark agreed in the June 5,2002, assignment contract to: (1) either give to Brew City or arrange for Brew City to receive buildings 27, 28, and 35, "upon acquisition" of the Pabst property from Pabst, and work with Brew City to ensure that appropriate restrictive covenants relating to those buildings were drawn up; (2) hire Haertel as a consultant; (3) give to Brew City an environmental remediation-credit in connection with buildings 27, 28, and 35; and (4) give to Brew City certain described personal property.

¶ 9. Brew City's First Claim asserts that Wispark breached the June 5th assignment contract and that Brew City was damaged as a result because: "title to buildings 27, 28 and 35" was not conveyed to Brew City "in a timely manner"; Wispark did not "in a timely manner, or at any time," "draft reasonable 'mutually agreeable restrictive covenants' for the development and use of the Brew City properties"; Wispark did not "honor Brew City's request for reimbursement" of remediation costs; the value of what the June 5th assignment contract promised would be Brew City's five percent interest in Juneau Avenue Partners was significantly watered-down; and Haertel was not paid his "consulting salary on a timely basis."

¶ 10. The trial court held that Juneau Avenue Partners, not Wispark, was the proper party against whom the First Claim should have been asserted because, in essence, Juneau Avenue Partners, not Wis-park, owned the Pabst property. We disagree.

¶ 11. A complaint states a claim for breach of contract when it alleges: (1) a contract between the plaintiff and the defendant that creates obligations flowing from the defendant to the plaintiff; (2) failure of the defendant to do what it undertook to do; and (3) damages. See Northwestern Motor Car, Inc. v. Pope, 51 Wis. 2d 292, 296, 187 N.W.2d 200, 203 (1971) (approving trial court's formulation). Brew City's complaint asserts a breach-of-contract claim against Wis-park:

Wispark promised in the June 5th assignment contract with Brew City that when the Pabst property was acquired from Pabst, Wispark would either convey or arrange for the conveyance of buildings 27, 28, and 35 to Brew City. According to Brew City's complaint, Wispark did not do that.
Wispark promised in the June 5th assignment contract with Brew City that it would employ Haertel as a paid consultant. Brew City's complaint alleges that although Haertel received "[mjonthly consulting payments" under a consulting agreement that was not signed because Brew City had objections to the proffered draft, the monies "were not timely paid."
Wispark promised in the June 5th assignment contract with Brew City to make the environmental remediation payments to Haertel in connection with his development of buildings 27, 28, and 35. Brew City's complaint alleges that this was not done.
Wispark promised in the June 5th assignment contract with Brew City that Brew City would get specified items of personal property from the Pabst property, and that this would occur at the closing on the Pabst property. A fair inference from Brew City's complaint is that this has not happened.
• Wispark promised in the June 5th assignment contract with Brew City that Brew City "shall be entitled to a five percent ownership interest in" what was formed as Juneau Avenue Partners.

Although according to Brew City's complaint, Wispark, as envisioned by the June 5th assignment contract with Brew City, could transfer to Juneau Avenue Partners the rights Wispark got under that assignment contract, Wispark's obligations to Brew City under the June 5th assignment contract could not, without Brew City's consent, be transferred to Juneau Avenue Partners or any other entity so as to relieve Wispark of its responsibility for these contractual obligations. Brooks states the rule, which we reprint at length because the parties do not discuss it in their briefs, although we raised the matter at oral argument:

The rule for delegation of the performance of a contractual obligation is that the obligor may delegate a contractual duty without the obligee's consent unless the duty is "personal." 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. The obligor under the contract is treated as having rendered the performance even when an independent contractor has rendered it, and the obligor remains the party liable for that performance if the performance proves to be in breach of the contract.
Where the obligee consents to the delegation, the consent itself does not release the obligor from liability for breach of contract. More than the obligee's consent to a delegation of performance is needed to release the obligor from liability for breach of contract. For the obligor to be released from liability, the obligee must agree to the release. If there is an agreement between the obligor, obligee and a third party by which the third party agrees to be substituted for the obligor and the obligee assents thereto, the obligor is released from liability and the third person takes the place of the obligor. Such an agreement is known as a novation.

Id., 133 Wis. 2d at 244-245, 395 N.W.2d at 173-174 (emphasis added; footnotes omitted); see also CH2M Hill Cent., Inc. v. Madison-Madison Int'l, Inc., 895 F.2d 286, 290-292 (7th Cir. 1989) (applying Wisconsin law). Nothing in the Record reflects any agreement or consent by Brew City to relieve Wispark of its obligations under that contract. Thus, contrary to the defendants' contention and the trial court's ruling, Wispark's transfer to Juneau Avenue Partners of Wispark's interests under the June 5th assignment contract did not relieve Wispark of, as phrased by Brooks, its "responsibility for fulfilling" its contractual obligations to Brew City. Accordingly, Brew City's complaint states a breach-of-contract claim against Wispark. We reverse the trial court's dismissal of Brew City's First Claim for relief.

B. Second Claim: Breach of Implied Duty of Good Faith, Against Wispark.

¶ 12. "Every contract implies good faith and fair dealing between the parties to it," and mere compliance with the form but not the substance of a contract breaches that covenant of good faith. Bozzacchi v. O'Malley, 211 Wis. 2d 622, 626, 566 N.W.2d 494, 495 (Ct. App. 1997) (internal quotation marks omitted). As we have seen, the trial court held that Juneau Avenue Partners was the proper party against which Brew City could seek to enforce Wispark's obligations to Brew City under the June 5th assignment contract. The defendants make no separate argument in connection with Brew City's claim against Wispark for Wispark's asserted breach of its duty to act in good faith under that contract, and, on our independent review of Brew City's complaint, and based on what we have already set out in Part II.A. of this opinion, it is clear that Brew City's complaint states a claim against Wispark for Wispark's alleged breach of its duty to act under that contract in good faith. We reverse the trial court's dismissal of Brew City's Second Claim for relief.

C. Third Claim: Intentional Interference with Contractual Relationship, Against Jerold E Franke, John T. Ferchill, and JTMK-Pabst, Ltd.

¶ 13. "The elements of tortious interference with a contract are: (1) the plaintiff had a contract or prospective contractual relationship with a third party; (2) the defendant interfered with the relationship; (3) the interference was intentional; (4) a causal connection exists between the interference and the damages; and (5) the defendant was not justified or privileged to interfere." Aon Risk Servs., 2006 WI App 4, ¶ 20, 289 Wis. 2d at 157, 710 N.W.2d at 189. Brew City's intentional-interference claim against Franke, Ferchill, and JTMK-Pabst asserts that they were aware of or should have been aware of Brew City's contract with Wispark and that they interfered with it:

• by not giving Brew City title to buildings 27, 28, and 35;
• by not "draft[ing] reasonable 'mutually agreeable restrictive covenants'" in connection with those buildings, so Brew City could develop them within the Pabst property complex;
• by not "honoring] Brew City's request for reimbursement" of its remediation expenses;
• by offering Brew City an ownership interest in Juneau Avenue Partners that Brew City contends did not comply with the intent of the June 5th assignment contract;
• by not paying "Haertel's consulting salary on a timely basis";
• by not "performing] in accordance" with the time-is-of-the essence clause in the June 5th assignment contract;
• "by intentionally delaying performance of the terms of the June 2 [sic], 2002 Assignment [in order] to delay and avoid transfer of title of Brew City's buildings, and to minimize Brew City's ability to obtain or maintain tenants for its buildings, among other things, in an attempt to push Brew City to sell its entire interest in Juneau Avenue Partners"; and
• "in other respects."

As we have seen, Wispark ultimately transferred the Pabst property to Juneau Avenue Partners, and, other than Wispark's obligations under the June 5th assignment contract that we discussed in Parts II.A. and B. of this opinion, the only defendant other than Wispark that, according to the complaint, had the legal responsibility or authority to do any of the things about which Brew City complains in its Third Claim is Juneau Avenue Partners. Of Franke, Ferchill, and JTMK-Pabst, only JTMK-Pabst is alleged to be a member of Juneau Avenue Partners, described by the complaint as a limited liability company. Under Wis. Stat. §§ 183.0304 and 183.0305, neither members of a limited liability company nor its manager may be liable in tort, for their acts or conduct as a member or manager, to third persons, such as, here, Brew City. Thus, JTMK-Pabst is not a proper party to Brew City's tortious-interference claim because no conduct other than as a member or manager of Juneau Avenue Partners is alleged. Further, with respect to Franke and Ferchill, although Brew City's complaint alleges what on the surface appears to be rough treatment of Haertel, none of the allegations are tied directly, or even by reasonable inference, to the mechanisms (that is, what Franke and Ferchill did to interfere with Brew City's June 5th assignment contract with Wispark) that resulted in the grievances asserted in the Third Claim. As we have seen, "mere conclusory assertions that echo legal or statutory standards are insufficient; a complaint's assertions must 'allege the ultimate facts' that support the plaintiffs claims." Aon Risk Servs., 2006 WI App 4, ¶ 6, 289 Wis. 2d at 143, 710 N.W.2d at 182 (quoted source omitted). The trial court dismissed the Third Claim with prejudice. Although we affirm the dismissal as to JTMK-Pabst, that dismissal is without prejudice if facts should develop that show any conduct by it other than as a member of Juneau Avenue Partners. We also modify the trial court's dismissal as to Franke and Ferchill to be without prejudice, and, on remand, Brew City shall be entitled to re-plead its intentional-interference claim against Franke and Ferchill, and, if appropriate, JTMK-Pabst.

D. Fourth Claim: Breach of Implied Fiduciary Duty, Against Juneau Avenue Partners.

¶ 14. Brew City bases this claim on its contention that it should have a five-percent interest in Juneau Avenue Partners, and thus, according to its briefs on appeal, Brew City was a joint-venturer with Juneau Avenue Partners. The complaint, however, indicates that, as of yet, Brew City is not a part of Juneau Avenue Partners, and thus, as of yet at least, Brew City is not in a joint venture with Juneau Avenue Partners. See Edlebeck v. Hooten, 20 Wis. 2d 83, 88, 121 N.W.2d 240, 243 (1963) ("Four requisites have generally been recognized by the courts to be essential to the existence of a joint adventure: (1) Contribution of money or services but not necessarily in equal proportion by each of the parties, (2) joint proprietorship and mutual control over the subject matter of the venture, (3) an agreement to share profits though not necessarily the losses, and (4) a contract express or implied establishing the relationship."). Whatever the reasons for Brew City not getting its five-percent interest in Juneau Avenue Partners, whether breach of the June 5th assignment contract by Wispark, or Juneau Avenue Partners's complicity in that breach, Brew City's interest is, as of now, inchoate and not sufficient to trigger a fiduciary duty owed to Brew City by Juneau Avenue Partners. See Montgomery v. Aetna Plywood, Inc., 231 F.3d 399, 407 (7th Cir. 2000) ("Fiduciary duties arise only after a stockholder comes into actual possession of stock, regardless of how certain the stockholder's future ownership was when the challenged transaction took place."). Accordingly, we affirm the dismissed of Brew City's Fourth Claim.

E. Fifth Claim: Conversion, Against Wispark.

¶ 15. Brew City contends that Wispark's failure to "deliver title to buildings 27, 28 and 35 to Brew City" was a conversion of its property. The trial court disagreed. So do we.

¶ 16. "The elements of tortious conversion comprise: (1) intentionally controlling/taking property belonging to another; (2) controlling/taking property without the owner's consent; and (3) those acts resulting in serious interference with the rights of the owner to possess the property." Bruner v. Heritage Cos., 225 Wis. 2d 728, 736, 593 N.W.2d 814, 818 (Ct. App. 1999). Not effectuating delivery of the plaintiffs property to the plaintiff, as Brew City claims Wispark did, before the plaintiff owns the property is not a conversion. Brew City never owned buildings 27, 28, and 35 — it had a right to purchase the Pabst property from Pabst, and, as we have seen, assigned that right to Wispark in return for Wispark's promises to do a number of things, including transferring buildings 27, 28, and 35 to Brew City. According to Brew City's complaint, Wispark did not do so. Brew City's remedy is breach of contract, not conversion. Accordingly, we affirm the dismissal of Brew City's Fifth Claim.

F. Sixth Claim: Injury to Business, Against All of the Defendants.

¶ 17. Brew City contends that its complaint states a claim under Wis. Stat. § 134.01 against all of the defendants. Section 134.01 provides:

Injury to business; restraint of will. Any 2 or more persons who shall combine, associate, agree, mutually undertake or concert together for the purpose of willfully or maliciously injuring another in his or her reputation, trade, business or profession by any means whatever, or for the purpose of maliciously compelling another to do or perform any act against his or her will, or preventing or hindering another from doing or performing any lawful act shall be punished by imprisonment in the county jail not more than one year or by fine not exceeding $500.

Although phrased as a criminal statute, a party may bring a civil action under the section to recover damages caused by its violation. See Gerol v. Arena, 127 Wis. 2d 1, 10, 377 N.W.2d 618, 622 (Ct. App. 1985) (Section 134.01 codified the "common law concept" that "when two or more persons maliciously or willfully combine to injure another's reputation or occupation, a tort has been committed," and is "designed to protect individuals rather than the public as a whole."). More than mere injury or the alleged conspirators' intent to profit by their actions, however, must be alleged. Maleki v. Fine-Lando Clinic Chartered, S.C., 162 Wis. 2d 73, 87 n.9, 469 N.W.2d 629, 635 n.9 (1991) ("The conspiracy cases are replete with statements pointing out that competition that incidentally harms another when the purpose is to improve one's competitive advantage does not run afoul of conspiracy laws if there is not a malicious motive."). Rather, the sine qua non of a claim under § 134.01 is "malice," which, under § 134.01, means " 'doing a harm malevolently for the sake of the harm as an end in itself, and not merely as a means to some further end legitimately desired [such as hurting someone else's business by competition].'" Maleki, 162 Wis. 2d at 87-88, 469 N.W.2d at 635 (brackets by Maleki-, quoting and adopting interpretation of § 134.01's predecessor statute by Aikens v. Wisconsin, 195 U.S. 194, 203 (1904)). Moreover, all parties to the alleged conspiracy must act from § 134.01 "malice." Maleki, 162 Wis. 2d at 86, 469 N.W.2d at 634 ("malice .. . must be proved in respect to both parties to the conspiracy"). Although the acts underlying a § 134.01 claim must be pled with specificity, Onderdonk v. Lamb, 79 Wis. 2d 241, 248, 255 N.W.2d 507, 510 (1977), malice need only "be averred generally," Wis. Stat. Rule 802.03(2) ("In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally."). We look at Brew City's allegations in this light.

¶ 18. Brew City's complaint asserts that:

• the defendants "acted together for the common and agreed upon purpose of injuring Brew City's reputation and business";
• the defendants "acted maliciously and intentionally to injure Brew City's reputation and business"; and
• Brew City was damaged as a result.

Taken in conjunction with allegations that Franke and Ferchill had discussed "at several of the monthly or bi-weekly meetings of the Juneau Avenue Partners" whether Haertel has " 'suffered enough,'" and that at "several meetings, Franke or Ferchill concluded the meeting by stating, 'No, Haertel has not suffered enough,'" Brew City's Sixth Claim passes pleading muster under Wis. Stat. § 134.01. The defendants contend, however, that the economic-loss doctrine bars Brew City's § 134.01 claim. We disagree.

¶ 19. As we have seen in footnote five, the economic-loss doctrine applies when a party seeks tort remedies for breaches of commercial real-estate contracts. Van Lare v. Vogt, Inc., 2004 WI 110, ¶¶ 17-21, 274 Wis. 2d 631, 640-642, 683 N.W.2d 46, 51-52. But, significantly, Van Lare recognized "fraud" exceptions to application of the doctrine, id., 2004 WI 110, ¶¶ 29-34, 274 Wis. 2d at 645-648, 683 N.W.2d at 53-54, as has Kaloti Enterprises, Inc. v. Kellogg Sales Co., 2005 WI 111, ¶¶ 30-51, 283 Wis. 2d 555, 580-589, 699 N.W.2d 205, 216-221. Indeed, the "fraud" exceptions to the economic-loss doctrine discussed in both Van Lare and Kaloti Enterprises are, in essence, based on a form of malevolent intent — intentional fraud upon an unsuspecting party — albeit not necessarily harming for the sake of the harm. Van Lare, 2004 WI 110, ¶¶ 32-33, 274 Wis. 2d at 646-647, 683 N.W.2d at 54; Kaloti Enters., 2005 WI 111, ¶¶ 30-51, 283 Wis. 2d at 580-589, 699 N.W.2d at 216-221. A fortiori, Wis. Stat. § 134.01, which is directed at focused malevolence— harm for the sake of the harm — is not trumped by the economic-loss doctrine, because, as with the tort of intentional fraud-in-the-inducement discussed in Kaloti Enterprises, inflicting harm for the sake of harm is not something that the law would reasonably "expect to be addressed in contract terms." See id., 2005 WI 111, ¶ 48, 283 Wis. 2d at 588, 699 N.W.2d at 220. Further, Brew City's contract was with Wispark — not the other defendants targeted by its § 134.01 claim. Thus, at least insofar as those other defendants are concerned, a § 134.01 claim "falls outside the contract" and, accordingly, "courts should be able to address a party's failure to act honestly with tort law, even if the parties are engaging in a commercial transaction." See Kaloti Enters., 2005 WI 111, ¶ 47, 283 Wis. 2d at 587, 699 N.W.2d at 220 (fraud in the inducement). Although the defendants point to Maleki's comment that "[i]f the promise created an enforceable contract, there would be no purpose in alleging conspiracy," id., 162 Wis. 2d at 92, 469 N.W.2d at 637, and, also, its observation that there would be no need to bring an action for conspiracy under § 134.01 if the plaintiff "had an enforceable contract," id., 162 Wis. 2d at 94-95, 469 N.W.2d at 638, these comments not only appear to be limited to the plaintiffs pleading strategy in the context of that case, but also could hardly be considered an analysis of the application, vel non, of the economic-loss doctrine because that doctrine was not adopted in Wisconsin until Sunnyslope Grading, Inc. v. Miller, Bradford & Risberg, Inc., 148 Wis. 2d 910, 437 N.W.2d 213 (1989), see Van Lare, 2004 WI 110, ¶ 17, 274 Wis. 2d at 640, 683 N.W.2d at 51. In light of the legislative command in § 134.01, and, in the absence of a better characterization, the malevolent-action exception to the economic-loss doctrine we perceive in Van Lare, we reverse the dismissal of Brew City's Sixth Claim, except insofar as it asserts claims against Highland Best and JTMK-Pabst for acts done as members or managers of Juneau Avenue Partners. See footnote 4 above; Wis. Stat. §§ 183.0304, 183.0305.

G. Seventh Claim: Conspiracy to Intentionally Interfere with Contractual Relationship, Against Jerold P. Franke, John T. Ferchill, and JTMK-Pabst, Ltd.

¶ 20. This is a recasting of what Brew City alleged as its Third Claim, and for the reasons set out in Part II.C. of this opinion we modify the trial court's dismissal of Brew City's Seventh Claim as to JTMK-Pabst, Franke, and Ferchill to be without prejudice in accordance with what we wrote in connection with Brew City's Third Claim.

H. Eighth Claim: Conspiracy to Convert, Against Wispark and Juneau Avenue Partners.

¶ 21. This is a recasting of what Brew City alleged as its Fifth Claim, with the addition of Juneau Avenue Partners as a party. For the reasons set out in Part II.E. of this opinion we affirm the trial court's dismissal of Brew City's Eighth Claim.

I. Ninth Claim: Punitive Damages, Against All of the Defendants.

¶ 22. With the exception of Brew City's Sixth Claim, and the leave to re-plead Brew City's Third and Seventh Claims, the only surviving Brew City claims are claims for breach of contract. Punitive damages "generally cannot be had in breach of contract claims." Grams v. Milk Prods., Inc., 2005 WI 112, ¶ 14 n.4, 283 Wis. 2d 511, 520 n. 4, 699 N.W.2d 167, 171 n.4; Chuck Wagon Catering, Inc. v. Raduege, 88 Wis. 2d 740, 756, 277 N.W.2d 787, 794 (1979) (" 'Punitive damages are not allowed for a mere breach of contract.'") (quoted source omitted). Punitive damages may, however, be awarded in the appropriate intentional-interference-with-a-contract case. See Musa v. Jefferson County Bank, 2001 WI 2, ¶¶ 5-6, 35, 240 Wis. 2d 327, 330-331, 342, 620 N.W.2d 797, 799, 804 (punitive damages allowed in tortious-interference-with-contraetual-relations case where jury awarded plaintiff mental-health expenses as well). We thus vacate the trial court's dismissal of Brew City's Ninth Claim, the fate of which will be determined on remand in connection with the trial of Brew City's Sixth Claim, and in connection with the trial court's assessment of Brew City's amended Third and Seventh Claims, if it re-pleads.

III.

¶ 23. In sum, we reverse the trial court's dismissal of Brew City's First, Second, and Sixth Claims, affirm but modify the trial court's dismissal of Brew City's Third and Seventh Claims, affirm the trial court's dismissal of Brew City's Fourth, Fifth, and Eighth Claims, and vacate the trial court's dismissal of Brew City's Ninth Claim, and we remand this matter to the trial court for further proceedings consistent with this opinion.

By the Court. — Orders affirmed in part; reversed in part and cause remanded for further proceedings.

       The parties agreed at oral argument that the claim in connection with Haertel's consulting contract has been resolved.

       Thus, we need not analyze Brew City's contention that the agreement in the June 5th assignment contract that Wispark "may assign its rights under this Assignment to a new entity that is formed for the purpose of purchasing and/or developing the Properly, provided [Brew City] receives its 5% equity interest therein" made receipt by Brew City of its five-percent interest a condition precedent to the transfer of the Pabst property by Wispark to that entity, Juneau Avenue Partners. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W 663, 665 (1938) (only dispositive issue need be addressed). As we point out in the main body of this opinion, Wispark's transfer of the Pabst property to Juneau Avenue Partners did not reheve Wispark of its obligations under the June 5th assignment contract, and what the defendants claim is a contrary concession in Brew City's appellate brief does not bind our analysis. See Fletcher v. Eagle River Mem'l Hosp., Inc., 156 Wis. 2d 165, 178-180, 456 N.W.2d 788, 794-795 (1990) (party's concession onlegal issue not binding on court); Saenz v. Murphy, 162 Wis. 2d 54, 57 n.2, 469 N.W.2d 611, 612 n.2 (1991) (court not bound by the parties' framing of the issues), overruled on other grounds by State ex rel. Anderson-El v. Cooke, 2000 WI 40, 234 Wis. 2d 626, 610 N.W.2d 821.

       As noted in footnote one, this claim has been resolved.

       Wisconsin Stat. § 183.0304 provides:
      Liability of members to 3rd parties. (1) The debts, obligations and liabilities of a limited liability company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the limited liability company. Except as provided in ss. 183.0502 and 183.0608, a member or manager of a limited liability company is not personally liable for any debt, obligation or liability of the limited liability company, except that a member or manager may become personally hable by his or her acts or conduct other than as a member or manager.
      (2) Notwithstanding sub. (1), nothing in this chapter shall preclude a court from ignoring the limited liability company entity under principles of common law of this state that are similar to those applicable to business corporations and shareholders in this state and under circumstances that are not inconsistent with the purposes of this chapter.
      WISCONSIN Stat. § 183.0305 provides:
      Parties to actions. A member of a limited liability company is not a proper party to a proceeding by or against a limited liability company, solely by reason of being a member of the limited liability company, except if any of the following situations exists:
      (1) The object of the proceeding is to enforce a member's right against or liability to the limited liability company.
      (2) The action is brought by the member under s. 183.1101.

       The parties discuss the application of the economic-loss doctrine, which is designed "to prevent a party to a contract from employing tort remedies to compensate the party for purely economic losses arising from the contract." Grams v. Milk Prods., Inc., 2005 WI 112, ¶ 2, 283 Wis. 2d 511, 516, 699 N.W.2d 167, 169. Although generally applicable when a plaintiff seeks to recover damages suffered when a product does not perform as promised, see id., 2005 WI 112, ¶¶ 2-3, 13, 283 Wis. 2d at 516, 699 N.W.2d at 169, 171; Magestro v. North Star Envtl.Const., 2002 WI App 182, ¶ 6, 256 Wis. 2d 744, 749-750, 649 N.W.2d 722, 725, it also applies when a party seeks tort remedies for breaches of commercial real-estate contracts, Van Lare v. Vogt, Inc., 2004 WI 110, ¶¶ 17-21, 274 Wis. 2d 631, 640-642, 683 N.W.2d 46, 51-52. We do not discuss the economic-loss doctrine in connection with the trial court's dismissal of the Fifth Claim because Brew City's complaint does not satisfy the requisites of a claim for conversion. See Gross, 227 Wis. at 300, 277 N.W at 665 (only dispositive issue need be addressed); State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) (cases should be decided on the "narrowest possible ground").

       We disagree with the trial court's determination that, for the purposes of the defendants' motion to dismiss Brew City's complaint, animus directed at Haertel did not encompass Brew City.

       The precise limits of the fraud exceptions to the economic-loss doctrine are still, apparently in flux. See Van Lare, 2004 WI 110, ¶¶ 44-46, 47-53, 274 Wis. 2d at 651-652, 653-655, 683 N.W.2d at 56-57, 57-58 (concurring opinions by Justice Ann Walsh Bradley and, on behalf of himself and Justice Jon E Wilcox, by Justice N. Patrick Crooks).