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COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
March 6, 1997
A party may file with the Supreme Court                                        This opinion is subject to further editing.
a petition to review an adverse decision                                       If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                     appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                                            Official Reports.
Nos. 95-2808
95-3618
STATE OF WISCONSIN                                                             IN COURT OF APPEALS
                                                                               DISTRICT IV
FIRST BANK (N.A.),
Plaintiff-Appellant,
v.
RUSSELL CLEARY, JOHN MOONEY,
SABINA BOSSHARD, WILLIAM BOSSHARD,
as the Personal Representatives of the Estate of
JOHN BOSSHARD, ALEX SKOVER and
JOSEPH WEBB,
Defendants-Respondents.
APPEALS  from  judgments  of  the  circuit  court  for  La  Crosse
County:  ROBERT W. WING, Judge.  Reversed and causes remanded.
Before Eich, C.J., Dykman, P.J., and Vergeront, J.
PER  CURIAM.    First  Bank                                                    (N.A.),  appeals  from  summary
judgments dismissing its complaint against Russell Cleary, John Mooney, Alex




Nos.                                                                                 95-2808
95-3618
Skover, Joseph Webb and the personal representatives of the Estate of John
Bosshard (the respondents).   We conclude that disputes of material fact remain
unresolved, and therefore reverse and remand for further proceedings.
The  respondents  sought  loans  from  First  Bank  to  finance  the
purchase of a business, including a $3.6 million loan to buy real estate.   At the
time they applied, the respondents were undecided whether to operate as a
partnership or a corporation.   A letter stating First Bank’s commitment to loan
the money to either a corporation or partnership identified the following under
the heading “collateral”:
First real estate mortgage on the real estate to be acquired by [the
corporation] or the general partnership.    The loan
would require either an unlimited guarantee or joint
and several liability, in  the case of  a partnership,
from the following individuals: [the respondents].
The  letter  also  stated  that  the  loan  commitment  was  conditional  on         “an
agreement of the bank and borrower on documentation,” and provided that
“the commitment on the part of First Bank, N.A. is not transferable and is
confidential between the bank, investors and guarantors of [the corporation] or
the partnership.”
The   respondents   accepted   the   commitment   letter,   and
subsequently decided to proceed as a partnership known as JJAWC Partners.
At the October 3, 1988 loan closing, First Bank asked the respondents to sign
personal guarantees and each did so.   Each respondent also signed the loan
agreement which made the guarantees a condition precedent to the loan.   Four
and one-half years later each guarantor signed an agreement that reaffirmed the
guarantees but without waiving “any defense which any of the Guarantors may
assert against the Guarantee issued by them on October 3, 1988.”
JJAWC ultimately defaulted on the loan with  $2.7 million still
owing.   First Bank then commenced this lawsuit against the respondents on
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Nos.                                                                                 95-2808
95-3618
their guarantees.   For unexplained reasons, the bank did not sue JJAWC or the
partners on the note resulting from the loan agreement itself.
On  First  Bank’s  summary  judgment  motion,  the  trial  court
concluded  that  the  plain  terms  of  the  commitment  letter  did  not  require
guarantees from the respondents if they received the loan as a partnership.
Therefore, according to the court, First Bank failed to provide any consideration
for the subsequent guarantees it obtained at closing because the loan was
already promised without them.   The court granted summary judgment to the
respondents on that basis and dismissed the claim on the guarantee.
First Bank subsequently filed a motion for summary judgment on
the note, and all of the respondents except the Bosshard estate moved to strike it
on grounds that First Bank never stated a cause of action on the note.   The trial
court and First Bank learned at the hearing on the motion that the respondents,
but not the estate, had commenced a separate action alleging several claims
against First Bank arising out of the transaction.   The court found that First
Bank’s complaint did not state  a claim on  the note  and, after considering
whether to allow First Bank to amend the complaint and add a claim on the
note, concluded that it would not grant leave to amend.   The court determined,
as conceded by counsel for the four respondents, that First Bank could present
its claims on the note by counterclaim in the respondents’ newly filed action.
The result was an order granting the motion to strike the summary judgment
motion  and  a  final  judgment  dismissing  the  complaint.    The  other  action
remains pending.   First Bank has counterclaimed on the note in that action and
filed a third-party complaint on the note against the estate.
Summary  judgment  is  appropriate  only  if  material  facts  are
undisputed, only one reasonable inference is available from those facts, and that
inference requires dismissal as a matter of law.   Wagner   v. Dissing, 141 Wis.2d
931, 939-40, 416 N.W.2d 655, 658 (Ct. App. 1987).  We independently decide this
issue without deference to the trial court.   Schaller v. Marine Nat’l Bank, 131
Wis.2d 389, 394, 388 N.W.2d 645, 648 (Ct. App. 1986).
There are two reasonable interpretations of the commitment letter
clause on personal guarantees.   The letter states that “the loan would require
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Nos.                                                                                   95-2808
95-3618
either an unlimited guarantee or joint and several liability, in the case of a
partnership,” from the respondents.  They reasonably interpret that language to
require a personal guarantee only if the respondents formed a corporation.
However,  one  could  also  reasonably  interpret  it  to  mean  that  First  Bank
reserved the right to choose between joint and several liability or an unlimited
guarantee  in  the  case  of  a  partnership.     Although  the  parties  devote
considerable effort in their briefs to the issue whether joint and several liability
automatically attaches to the individual partners of a partnership, that is a
question of law and does not assist in determining the intended meaning of the
letter.   Because that intent remains ambiguous, it must be resolved by resort to
extrinsic evidence and subsequent determination by the fact-finder.  See Patti v.
Western Machine Co., 72 Wis.2d 348, 351, 241 N.W.2d 158, 160 (1976).
If  it is found that the  commitment letter did not  contemplate
personal guarantees for the partners of JJAWC, a fact dispute then remains as to
whether First Bank unilaterally imposed the guarantees at closing, or whether
the respondents voluntarily agreed to amend the terms of the letter. First Bank
introduced evidence that Bosshard,  acting as attorney  for the respondents,
acknowledged and consented to the guarantees before closing.   Respondents
contested that interpretation of Bosshard’s written statement, and presented
disputed evidence that they signed guarantees under duress and threat of
cancellation.    These, too, are issues not capable of resolution on summary
judgment.
First Bank also contends that the respondents have no defense
because  they  agreed  to  unconditional  liability  at  closing  and  waived  any
“circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor.”    We do not construe that
provision as a waiver on the issues of duress or lack of consideration.   See
Midwest Corp. v. Global Cable, Inc.,  688 F. Supp.  872,  875  (S.D.N.Y  1988)
(unconditional  waiver  of  defenses  does  not  preclude  lack  of  consideration
defense).
First Bank has not waived its right to appeal.   The Bosshard estate
contends that First Bank cannot pursue this appeal against the estate because it
filed a third-party complaint against the estate in the second action, rather than
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Nos.                                                                                         95-2808
95-3618
pursuing efforts to amend the complaint in this action.1   We disagree.   The
estate cites the proposition that when a party commences a second action in the
trial court based upon the same cause of action, it waives its appeal rights.
Richie v. Badger State Mut. Cas. Co., 22 Wis.2d 133, 137-38, 125 N.W.2d 381, 383
(1963).   Here, as explained by the parties, First Bank’s cause of action in the
second  action  is different  because  it  is based  on  the note  and  not  on  the
guarantees.
Additionally,  the  estate  cites  the  proposition  that  the  right  to
appeal is waived by one who causes or induces the judgment to be entered.
County of Racine v. Smith, 122 Wis.2d 431, 437, 362 N.W.2d 439, 442 (Ct. App.
1984).   Here, First Bank did not induce or cause the judgment dismissing its
complaint.   Although First Bank could have moved to amend its complaint, it
reasonably chose not to after the trial court held that it could raise its alternative
claims in the newly filed action.   The trial court so held after counsel for the
other  four  respondents  confirmed  the  availability  of  that  alternative,  and
counsel for the estate remained silent.   While the estate is not bound by the
representations of counsel for the other respondents, it is bound both by its
failure to object to the trial court’s ruling, and its failure to appeal, if aggrieved
by it.
By the Court.—Judgments reversed and causes remanded.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
1  At the time the trial court stated that it would not grant leave to amend the complaint
to add a cause of action based on the note, there was no motion to amend before the court.
Presumably the estate means First Bank should have filed a motion to amend to preserve
the issue, and then appealed the denial of the motion.
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