Richard A. Mueller v. TL90108, LLC

2020 WI 7

SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1962

COMPLETE TITLE: Richard A. Mueller,
Plaintiff-Appellant,
Joseph L. Ford, III,
Plaintiff-Co-Appellant,
v.
TL90108, LLC,
Defendant-Respondent-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 383 Wis. 2d 740,917 N.W.2d 551
PDC No:2018 WI App 52 - Published

OPINION FILED: February 4, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 4, 2019

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Rebecca F. Dallet

JUSTICES:
HAGEDORN, J., delivered the majority opinion of the Court, in
which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, REBECCA
GRASSL BRADLEY, and KELLY, JJ., joined.
NOT PARTICIPATING:
DALLET, J.

ATTORNEYS:

For the defendant-respondent-petitioner, there were briefs
filed by Stephen E. Kravit, Brian T. Fahl, and Kravit, Hovel &
Krawczyk S.C., Milwaukee; joined by Lawrence H. Heftman, Robert
Middleton, and Schiff Hardin LLP, Chicago, Illinois. There was an
oral argument by Lawrence H. Heftman.

For the plaintiff-appellant, there was a brief filed by
Matthew V. Fisher, Brian C. Tokarz, and Meissner Tierney Fisher &
Nischols S.C., Milwaukee. There was an oral argument by Matthew V.
Fisher.

For the plaintiff-co-appellant, there was a brief filed by
Joseph L. Ford, Boca Raton, Florida. There was an oral argument by
Joseph L. Ford.

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 2020 WI 7
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1962
(L.C. No. 2017CV867)

STATE OF WISCONSIN : IN SUPREME COURT

Richard A. Mueller,

Plaintiff-Appellant,

Joseph L. Ford, III,
FILED
Plaintiff-Co-Appellant,
FEB 4, 2020
v.
Sheila T. Reiff
TL90108, LLC, Clerk of Supreme Court

Defendant-Respondent-Petitioner.

HAGEDORN, J., delivered the majority opinion of the Court, in which
ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, REBECCA GRASSL
BRADLEY, and KELLY, JJ., joined.

DALLET, J., did not participate.

REVIEW of a decision of the Court of Appeals. Modified, and

as modified, affirmed and cause remanded.

¶1 BRIAN HAGEDORN, J. A late 1930s Talbot Lago is

considered by some one of the most beautiful and innovative cars
 No. 2017AP1962

in the world. This collector's gem sang such a siren song that it

became the subject of an international smuggling effort at the

heart of today's case. The Talbot Lago here——a 1938 model——

mysteriously disappeared from a Milwaukee business in 2001. It

reappeared in 2015 after being purchased in Europe by TL90108, LLC

(TL). When TL tried to obtain title in Illinois, it triggered a

hit on a stolen vehicle report.

¶2 After hearing that the prized vehicle had turned up,

Plaintiffs Richard Mueller and Joseph Ford III demanded its return

from TL, claiming to be the rightful owners. When TL did not

oblige, Mueller and Ford brought an action for replevin1 seeking

possession of the vehicle and damages. The circuit court, however,

granted TL's motion to dismiss the complaint on the grounds that

the claim was barred by the applicable six-year statutes of repose.

Wis. Stat. §§ 893.35, 893.51(1) (2017-18).2 The court of appeals

reversed, holding that when Mueller and Ford demanded TL return

the vehicle, this triggered a wrongful detention claim and

restarted the six-year repose clock.
¶3 The core issue we address today is whether the six-year

statutes of repose bar Mueller and Ford's action for replevin.

More specifically, we address whether a wrongful detention claim

may exist for previously converted property, and if so, when a

replevin cause of action based on a subsequent wrongful detention

1An additional claim was raised that we are not addressing,
as explained further below.
2All subsequent references to the Wisconsin Statutes are to
the 2017-18 version.

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 No. 2017AP1962

accrues. We conclude that under the plain language of the statutes

of repose and our cases, the true owner can maintain a replevin

action for wrongful detention against a subsequent purchaser of

converted property. We hold that under Wis. Stat. §§ 893.35 and

893.51(1), a cause of action for replevin based on wrongful

detention under facts like those alleged here accrues when the

subsequent purchaser obtains the property; no demand is necessary.

¶4 Thus, for purposes of the motion to dismiss, the replevin

action based on TL's alleged wrongful detention of the vehicle

accrued when TL obtained (and thereby wrongfully detained) the

vehicle. TL purchased the prized vehicle sometime in 2015. Hence,

Mueller and Ford's cause of action for replevin is not barred by

the relevant statutes of repose.

I. BACKGROUND

¶5 On the morning of March 4, 2001, Roy Leiske arrived at

his place of business and found the front door curiously unlocked.3

When he entered, he discovered that his mid-restoration 1938 Talbot
Lago, then worth an estimated one million dollars, was gone.

Leiske reported this to the Milwaukee Police Department, which

entered a stolen vehicle report into a national database.

3 The facts in this section are taken from the complaint.
When reviewing a motion to dismiss, "all facts alleged in the
complaint, as well as all reasonable inferences from those facts,
are accepted as true." Kaloti Enter., Inc. v. Kellogg Sales Co.,
2005 WI 111, ¶11, 283 Wis. 2d 555, 699 N.W.2d 205 (citing Ollerman
v. O'Rourke Co., 94 Wis. 2d 17, 24, 288 N.W.2d 95 (1980)).

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 No. 2017AP1962

¶6 In 2005, Leiske died and bequeathed the vehicle to

Mueller. Mueller later sold a percentage of ownership in the

missing vehicle to Ford. Both attempted——without success——to

locate the vehicle.

¶7 At around the same time, in either 2005 or 2006, the

vehicle was transported from the United States to Europe. In 2015,

TL purchased the vehicle through an international automobile

broker. TL then arranged for the vehicle to be transported to the

United States, and applied for title in Illinois in 2016. The

application, however, triggered a hit on the 2001 stolen vehicle

report. The Milwaukee Police Department confirmed to Illinois

officials the vehicle had been reported stolen, and Illinois did

not issue title to TL.

¶8 Upon learning of the vehicle's reappearance, Mueller and

Ford sent TL a demand to return the vehicle. When TL refused the

demand, Mueller and Ford filed a two-count complaint, bringing

both a replevin action to obtain possession of the vehicle and

recover damages, and a declaratory judgment as to their ownership
and possession of the vehicle. TL moved to dismiss Mueller and

Ford's claims, arguing they were timed-barred by the applicable

statutes of repose, Wis. Stat. §§ 893.35 and 893.51(1).

¶9 After entertaining multiple briefs and hearings, the

circuit court granted TL's motion to dismiss on the grounds that

the replevin cause of action accrued in 2001 when the vehicle was

stolen; the clock did not restart when the property changed hands;

and therefore, the replevin action was barred by the six-year
statutes of repose in Wis. Stat. §§ 893.35 and 893.51(1). It also
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 No. 2017AP1962

dismissed the declaratory judgment action, reasoning that a cause

of action for ownership cannot exist apart from replevin.4

¶10 The court of appeals reversed. It concluded that the

statutes of repose recognize separate claims for conversion and

wrongful detention. The court of appeals reasoned that while a

conversion claim accrued in 2001 when the vehicle was allegedly

stolen, a separate wrongful detention claim accrued when TL refused

Mueller and Ford's demand to return the vehicle. Mueller v.

TL90108, LLC, 2018 WI App 52, ¶29, 383 Wis. 2d 740, 917

N.W.2d 551. The court of appeals also remanded the cause for a

ruling on Mueller and Ford's declaratory judgment action, stating

that an action for a declaration of ownership differs from a

replevin action for possession. Id., ¶30 & n.5. We granted TL's

petition for review.

II. DISCUSSION

¶11 The issue before us is whether the replevin action is

barred by the six-year statutes of repose provided in Wis. Stat.
§§ 893.35 and 893.51(1).5 As this presents a question of law

4 The circuit court provided Mueller and Ford time to amend
their complaint; however, no amended complaint was filed. The
court entered a final order dismissing the complaint with
prejudice.
5 Because we affirm the court of appeals' determination that
Mueller and Ford's replevin action is not barred by the statutes
of repose, we need not address Mueller's alternative argument that
"the doctrine of equitable estoppel by fraudulent concealment
prevents TL from asserting a repose defense."

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 No. 2017AP1962

arising from a motion to dismiss based on a question of statutory

interpretation, our review is de novo. Doe 56 v. Mayo Clinic

Health Sys.——Eau Claire Clinic, Inc., 2016 WI 48, ¶14, 369

Wis. 2d 351, 880 N.W.2d 681 (motion to dismiss reviewed de novo);

State v. Pinder, 2018 WI 106, ¶23, 384 Wis. 2d 416, 919 N.W.2d 568

(statutory interpretation reviewed de novo).

A. Replevin and Repose

¶12 Replevin is an action for possession where the factual

question that must be resolved is "which party is entitled to

possession of the disputed property." Ford Motor Co. v. Lyons,

137 Wis. 2d 397, 468, 405 N.W.2d 354 (Ct. App. 1987). To succeed

on a replevin claim, the court or jury must find:

(a) Whether the plaintiff is entitled to possession of
the property involved.

Ford separately argued that "wrongful taking" in Wis. Stat.
§ 893.35 does not include theft; that a plaintiff must know who
took the property before the repose period provided in § 893.35
goes into effect; and that § 893.35, if it includes theft, must
toll the limitation period as it is tolled in criminal theft
proceedings. While we need not and therefore do not address Ford's
first and third arguments, we reject Ford's second argument as
explained below.

Additionally, TL asks us to affirm the dismissal of the
declaratory judgment action, in which Mueller and Ford seek a
declaration that they "are the full and absolute owners of the
Vehicle and entitled to its possession." TL's arguments in support
of dismissing this claim rely principally on the premise that the
statutes of repose bar Mueller and Ford's replevin action——a
conclusion we reject, as explained below——and that a declaratory
judgment cannot provide an additional pathway to relief. At this
stage, breathing new life into Mueller and Ford's replevin action,
we remand the claim for declaratory relief as well and express no
opinion on its viability apart from replevin.

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 No. 2017AP1962

(b) Whether the defendant unlawfully took or detained
the property involved.

(c) The value of the property involved.

(d) The damages sustained by the successful party from
any unlawful taking or unjust detention of the property
to the time of the trial.
Wis. Stat. § 810.13(1). This statutory provision tracks the

requirements for replevin at common law. See Eldred v. Oconto

Co., 33 Wis. 133, 136 (1873) ("The verdict is as follows: 'The

jury severally on their oaths do say, that they find for the
plaintiff, that he is the owner and lawfully entitled to the

possession of the property described in the complaint, that the

value thereof is $3,195.20, and that the plaintiff's damages for

the unlawful detention thereof is $301.31.'"). A party bringing

an action for replevin, then, may recover not only possession of

personal property, but also damages for its detention.

¶13 To that effect, the legislature has enacted two statutes

of repose——one regarding recovering possession of the property and

one with respect to damages. See Wis. Stat. § 893.35 ("action to

recover personal property"); Wis. Stat. § 893.51(1) ("action to

recover damages"). Mueller and Ford's complaint seeks both

possession of the vehicle and damages for its wrongful detention,

therefore we examine both §§ 893.35 and 893.51(1).6

6 Wisconsin Stat. § 893.35 provides:

An action to recover personal property shall be
commenced within 6 years after the cause of action
accrues or be barred. The cause of action accrues at
the time the wrongful taking or conversion occurs, or
the wrongful detention begins. An action for damage for
wrongful taking, conversion or detention of personal
7
 No. 2017AP1962

¶14 Wisconsin Stat. § 893.35 governs when a cause of action

for replevin seeking possession of personal property must be

brought. It provides: "An action to recover personal property

shall be commenced within 6 years after the cause of action accrues

or be barred." § 893.35. Wisconsin Stat. § 893.51(1) governs an

associated claim for damages: "an action to recover damages for

the wrongful taking, conversion or detention of personal property

shall be commenced within 6 years after the cause of action accrues

or be barred." § 893.51(1). Both statutes continue: "The cause

of action accrues at the time the wrongful taking or conversion

occurs, or the wrongful detention begins." §§ 893.35, 893.51(1).

¶15 Thus, the two provisions impose a six-year limit

starting from when (a) "the wrongful taking . . . occurs," (b) the

"conversion occurs," or (c) "the wrongful detention begins." Wis.

Stat. §§ 893.35, 893.51(1). It is plain from the text that each

of these are different causes of action, and therefore each could

have different dates from which the six-year clock starts to run.

Notice also that the plain language links the onset of the six-

property shall be commenced within the time limited by
[Wis. Stat. §] 893.51.

And Wis. Stat. § 893.51(1) provides:

Except as provided in sub. (2), an action to recover
damages for the wrongful taking, conversion or detention
of personal property shall be commenced within 6 years
after the cause of action accrues or be barred. The
cause of action accrues at the time the wrongful taking
or conversion occurs, or the wrongful detention begins.

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 No. 2017AP1962

year period to when the taking, conversion, or detention occurred;

the claims are not tied to the property itself.

¶16 Wisconsin Stat. §§ 893.35 and 893.51(1) are properly

described as statutes of repose, not statutes of limitation. A

statute of repose "provides that a cause of action must be

commenced within a specified amount of time after the defendant's

action which allegedly led to injury, regardless of whether the

plaintiff has discovered the injury or wrongdoing." Tomczak v.

Bailey, 218 Wis. 2d 245, 252, 578 N.W.2d 166 (1998). Though

similar, a statute of limitation focuses on the timeliness of an

injured party's claim rather than the underlying act or omission.

See Aicher ex rel. LaBarge v. Wis. Patients Comp. Fund, 2000 WI 98,

¶26, 237 Wis. 2d 99, 613 N.W.2d 849. Indeed, we previously called

§ 893.51(1) a statute of repose in Tomczak, and § 893.35 contains

the same language. Tomczak, 218 Wis. 2d at 259-60. With regard

to a wrongful detention claim, the statutes focus on when the

wrongful detention begins, not when the property owner discovers

or knows of the detention. This classification matters both
because it is textually evident and because we explicitly disavowed

application of the discovery rule to statutes of repose in Tomczak.

Compare id. at 260, with Hansen v. A.H. Robins, Inc., 113

Wis. 2d 550, 560, 335 N.W.2d 578 (1983) (adopting a discovery rule

for statutes of limitation not already governed by a statutory

discovery rule under which tort claims are deemed to "accrue on

the date the injury is discovered or with reasonable diligence

should be discovered, whichever occurs first").

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 No. 2017AP1962

B. Replevin and Wrongful Detention

¶17 Everyone agrees that, based on the complaint, the

vehicle was converted in 2001. The statutes of repose measure six

years from when a conversion occurs, and thus, the opportunity to

bring an action for possession and damages based on a conversion

claim has long since passed. The question here, then, is whether

an action based on wrongful detention is separately available, and

if so, when that cause of action accrued.

¶18 TL asserts the only tort it can be liable for is

conversion. The thrust of its argument is that once property is

converted, the only claim that can be made regarding that property

is conversion. Further, citing Tomczak, TL posits that any

interpretation allowing the repose clock to restart following a

transfer of originally converted property to another would

effectively impose the very discovery rule this court barred from

use in statutes of repose. Consistent with this theory, TL

contends that a wrongful detention claim is available only when an

initially lawful possession becomes unlawful by exceeding the
owner's original authorization. Playing out the logic, TL states

it could not possibly be wrongfully detaining the vehicle because

it never obtained Mueller and Ford's permission to possess the

vehicle in the first place. Mueller offers a different view. He

maintains that wrongful detention occurs when a defendant detains

property which the plaintiff is entitled to possess, and that

demand and refusal are not always necessary to trigger such a

claim.

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 No. 2017AP1962

¶19 Distilling all of this, the dispositive dispute between

the parties hinges on the nature of a wrongful detention claim

under the statutes of repose. The statutes themselves do not

define the relevant terms. However, the statutory terms

"conversion" and "wrongful detention" are technical phrases with

specific and distinct meaning in our common law, and we therefore

give them their accepted legal meaning. Wis. Stat. § 990.01(1)

("[T]echnical words and phrases and others that have a peculiar

meaning in the law shall be construed according to such meaning.");

State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58,

¶45, 271 Wis. 2d 633, 681 N.W.2d 110 ("Statutory language is given

its common, ordinary, and accepted meaning, except that technical

or specially-defined words or phrases are given their technical or

special definitional meaning."); see also Antonin Scalia & Bryan

A. Garner, Reading Law: The Interpretation of Legal Texts 320

(2012) ("The age-old principle is that words undefined in a statute

are to be interpreted and applied according to their common-law

meanings."). While the parties spend considerable time citing
treatises and delving into the common-law origins of a claim for

wrongful detention, we believe the meaning of these statutory terms

are best explained, and indeed controlled by, Wisconsin cases, not

those of other jurisdictions or scholarly collections of foreign

decisions.

¶20 Personal property is wrongfully detained when the

defendant "detains property when by law the plaintiff is entitled

to have it returned to him . . . ." Capitol Sand & Gravel Co. v.
Waffenschmidt, 71 Wis. 2d 227, 232, 237 N.W.2d 745 (1976). While
11
 No. 2017AP1962

a wrongful detention claim may arise when an initially lawful

possession becomes unlawful by exceeding the owner's

authorization7——the narrow definition TL embraces——our cases

demonstrate that this is not the only factual scenario that gives

rise to such a claim.

¶21 Eldred clearly demonstrates why TL's argument must fail,

and why the reasoning underlying the court of appeals' otherwise

correct decision must be modified. 33 Wis. 133. In Eldred,

someone removed logs from the eventual plaintiff's land and sold

the logs to a good faith purchaser. Id. at 139. The original log

owner filed a replevin action against the log purchaser for

"unlawful detention"8 of the logs. Id. at 139-40. This court was

asked to address whether "a demand is necessary before an action

to recover the logs can be maintained against the defendant." Id.

We concluded the original log owner (i.e., the plaintiff) could

maintain an "unlawful detention" claim because the defendant——

though a good faith purchaser——possessed something that was not

his. Id. at 141. No demand was necessary to trigger the claim.
Id. ("[B]y proving a state of facts which renders a demand

See, e.g., Durham v. Pekrul, 104 Wis. 2d 339, 311 N.W.2d 615
7

(1981).

Our cases use the terms "unlawful detention" and "wrongful
8

detention" interchangeably. See, e.g., Korb v. Schroedel, 93
Wis. 2d 207, 211, 214, 286 N.W.2d 589 (1980) (characterizing a
circuit court's finding of "unlawful detention" as "wrongful
detention"); Capitol Sand & Gravel Co. v. Waffenschmidt, 71
Wis. 2d 227, 231, 237 N.W.2d 745 (1976) (noting the jury was asked
if "there had been wrongful or unlawful detention"); Ronge v.
Dawson, 9 Wis. 222 (*246) (1859) (using "wrongful detention" and
"unlawful detention").

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 No. 2017AP1962

unnecessary, he proves the gravamen of his action, to wit, the

unlawful detention of the logs.").

¶22 Neither party asks us to overrule or modify Eldred, and

applying it here defeats TL's repose argument. The import of

Eldred is this: (1) a wrongful detention claim is separate from

a conversion claim; (2) a wrongful detention claim may arise

against a possessor of previously converted or wrongfully taken

property;9 and (3) in situations with analogous facts, a wrongful

detention claim is available and accrues at the time the property

is obtained——no demand is necessary.10 This is Wisconsin's common

law heritage, and is therefore appropriately incorporated into our

interpretation of "wrongful detention" in Wis. Stat. §§ 893.35 and

893.51(1).

¶23 Applying these principles, we hold that a "wrongful

detention" in Wis. Stat. §§ 893.35 and 893.51(1) may arise against

a possessor of previously converted property as in Eldred.

9Our cases also stand for the proposition that a third-party
purchaser may be liable for conversion if the purchaser knows the
property has been stolen. See Smith v. Briggs, 64 Wis. 497, 499,
25 N.W. 558 (1885). Remembering that it is the allegations in the
complaint that establish the operative facts on a motion to
dismiss, Mueller and Ford have not alleged TL knew that the
property was stolen, rendering the holding of Smith inapplicable
here. Moreover, nothing in Smith stands for the proposition that
a wrongful detention claim is precluded; it simply establishes
that a claim for conversion is an available option under its facts.

In other factual scenarios not relevant here, demand may
10

trigger the accrual of a wrongful detention claim. See Capitol
Sand, 71 Wis. 2d at 231-32 (noting a demand may trigger a wrongful
detention claim where the initially lawful possession becomes
unlawful by exceeding the owner's authorization).

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 No. 2017AP1962

Therefore, Mueller and Ford may maintain a cause of action for

replevin based on a claim of wrongful detention against TL.

¶24 The court of appeals agreed, but concluded the wrongful

detention began when TL denied Mueller and Ford's demand for return

of the vehicle. Mueller, 383 Wis. 2d 740, ¶29. The court of

appeals' conclusion is incorrect for at least two reasons. First,

we agree with TL that this determination in effect imposes a sort

of discovery rule on Wis. Stat. §§ 893.35 and 893.51(1), standing

at direct odds with this court's explicit prohibition against doing

just that. Tomczak, 218 Wis. 2d at 260. Allowing the cause of

action to accrue at the time of demand could open the door to

manipulation by a plaintiff who may choose when to make a demand

based on a potential deadline, providing less certainty to property

owners. Second, and more to the point, under Eldred, neither a

demand nor its refusal is necessarily required to initiate a

replevin action based on wrongful detention. 33 Wis. at 141.

Rather, the wrongful detention claim under the facts alleged here

accrued at the time TL obtained possession of the vehicle.
¶25 Applying Eldred and the plain language of Wis. Stat.

§§ 893.35 and 893.51(1) to the facts of this case, Mueller and

Ford may maintain a cause of action for replevin based on TL's

alleged wrongful detention of the vehicle. TL's wrongful detention

began at the time it acquired the vehicle in 2015, not when Mueller

and Ford issued a demand for its return. For these reasons,

Mueller and Ford's replevin action was brought within the six-year

repose period provided by §§ 893.35 and 893.51(1), and the order
dismissing the complaint on these grounds must be reversed.
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 No. 2017AP1962

III. CONCLUSION

¶26 We agree with the court of appeals that Mueller and

Ford's complaint is not barred by the six-year statutes of repose,

but modify its reasoning because TL's wrongful detention began

when TL obtained the vehicle——not when Mueller and Ford demanded

its return. On this basis, we affirm the decision of the court of

appeals reversing the circuit court's dismissal of the complaint.

By the Court.—The decision of the court of appeals is

modified, and affirmed as modified, and the cause is remanded to

the circuit court for further proceedings consistent with this

opinion.

¶27 REBECCA FRANK DALLET, J., did not participate.

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1