Racine County v. Oracular Milwaukee, Inc.
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2010 WI 25 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2007AP2861 Racine County, Plaintiff-Appellant, v. Oracular Milwaukee, Inc., Oracular, Inc., Oracular of Minnesota, LLC and Oracular of Michigan, Inc., Defendants-Respondents-Petitioners. REVIEW OF A DECISION OF THE COURT OF APPEALS 2009 WI App 58 Reported at: 317 Wis. 2d 790, 767 N.W.2d 280 (Ct. App 2009-Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: April 2, 2010 January 6, 2010 Circuit Racine Stephen A. Simanek JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the defendant-respondents-petitioners there were briefs by Jeffrey P. Aiken, Eric J. Meier, and Whyte Hirschboeck Dudek S.C., Milwaukee, and oral argument by Jeffrey P. Aiken. For the plaintiff-appellant there was a brief by Jeffrey L. Leavell, Danielle N. Lutz, and Jeffrey Leavell, S.C., Racine, and oral argument by Jeffrey L. Leavell. 2010 WI 25 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2007AP2861 (L.C. No. 2006CV1980) STATE OF WISCONSIN : IN SUPREME COURT Racine County, Plaintiff-Appellant, FILED v. APR 2, 2010 Oracular Milwaukee, Inc., Oracular, Inc., Oracular of Minnesota, LLC and Oracular of Michigan, Inc., David R. Schanker Clerk of Supreme Court Defendants-Respondents-Petitioners. REVIEW of a decision of the Court of Appeals. Affirmed and cause remanded. ¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a published decision of the court of appeals1 that reversed and remanded an order of the Racine County Circuit Court, Judge Stephen A. Simanek presiding, which granted summary judgment to Oracular Milwaukee, Inc., Oracular, Inc., Oracular of Minnesota, LLC, and Oracular of Michigan, Inc. (collectively Oracular) and dismissed 1 Racine County's breach of contract claim. Racine Racine County v. Oracular Milwaukee, Inc., 2009 WI App 58, 317 Wis. 2d 790, 767 N.W.2d 280. No. 2007AP2861 County alleged that Oracular, a computer systems and programming consultant, breached the Consulting Service Agreement) entered into between the parties. Agreement (the The circuit court granted summary judgment to Oracular on the grounds that Racine County's failure to name an expert witness was deficient as a matter of law. According to the circuit court, the Agreement was effectively a contract for professional services, for which the basis of liability is a claim of negligence. Racine County was therefore required to present expert testimony in order to demonstrate that Oracular's performance fell below the standard of care in the computer consulting industry. The circuit court denied Racine County's motion for reconsideration, and Racine County appealed. ¶2 The court of appeals reversed and remanded, concluding that Racine County was not required to present expert testimony because Oracular's alleged breaches of the Agreement were within the realm of the average juror's ordinary experience. Contrary to the circuit court's conclusion, the court of appeals held that for purposes of this case, computer consultants are not "professionals" and standards of Agreement between not subject Instead, care. thereby the court Racine County and to professional concluded Oracular was that a the simple contract for services. ¶3 accepted. Oracular petitioned this court for review, and we Though on different grounds, we affirm the decision of the court of appeals and remand to the circuit court for further proceedings. 2 No. ¶4 2007AP2861 The issue before this court is whether in order to survive summary judgment, Racine County was required to name an expert witness when the complaint alleged that Oracular breached the parties' Consulting Service Agreement by failing to institute the software as promised. ¶5 We conclude that in order to survive summary judgment, Racine County was not required to name an expert witness. alleged, present Racine issues County's so breach unusually of contract complex as claim to does require As not expert testimony as a matter of law. In so concluding, we do not close the door that to the possibility expert testimony may later assist the trier of fact in evaluating the breach of contract claim. Rather, we decide that based upon the pleadings and affidavits, Racine County was not required to name an expert witness in order to proceed. Moreover, the breach of contract claim presents numerous genuine issues of material fact which otherwise preclude different grounds,2 summary we judgment. affirm the Accordingly, decision of the though on court of appeals and remand to the circuit court for further proceedings. 2 We do not reach the question of whether a computer consultant constitutes a "professional" for purposes of this case because that in itself has no bearing on whether expert testimony is required. The parties agree. 3 No. 2007AP2861 I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE ¶6 On November 10, 2003, Racine County submitted a Request for Proposal (RFP) to prospective vendors, "seeking a qualified consultant to upgrade [its] current Peoplesoft World software to Peoplesoft One 8.0 and install Peoplesoft One Human Resource and Payroll modules." In essence, Racine County sought the assistance of a computer consultant, comprised of a "Project Manager/Project Team," in the upgrade of its human resources, payroll, and financial software systems. the project conversion would (for include payroll "software only), According to the RFP, installation, integration with data other When professional services are at issue, the basis of liability may be negligence, see Hoven v. Kelble, 79 Wis. 2d 444, 463, 256 N.W.2d 379 (1977); Micro-Managers, Inc. v. Gregory, 147 Wis. 2d 500, 513, 434 N.W.2d 97 (Ct. App. 1988); however, expert testimony may or may not assist the trier of fact, Netzel v. State Sand & Gravel Co., 51 Wis. 2d 1, 6, 186 N.W.2d 258 (1971). See, e.g., White v. Leeder, 149 Wis. 2d 948, 960, 440 N.W.2d 557 (1989) (concluding that expert testimony was not required to assist the jury in determining whether the manner in which the plaintiff kept a bull negligently caused the defendant's injury because the issue was "within the realm of lay comprehension"); Hoven, 79 Wis. 2d at 452 (stating that the doctrine of res ipsa loquitur "may be applied in medical malpractice cases and that the likelihood that negligence was the cause may be shown by expert medical testimony in cases where it may not be so inferred on the basis of common knowledge" (emphasis added)); Cramer v. Theda Clark Mem'l Hosp., 45 Wis. 2d 147, 152-53, 172 N.W.2d 427 (1969) (citing numerous cases in which expert testimony was not permitted because the jury was capable of drawing its own conclusions on the issue of negligence); City of Cedarburg Light & Water Comm'n v. AllisChalmers Mfg. Co., 33 Wis. 2d 560, 567, 148 N.W.2d 13 (1967). It does not follow, then, that the requirement of expert testimony is necessarily linked to the rendering of professional services. Accordingly, to evaluate the former, we need not determine whether Oracular is a "professional." 4 No. applications, final implementation, going live on 2007AP2861 Peoplesoft One, and training," and completion of the project would "result in a fully operational system tailored to the needs of Racine County." ¶7 In outlining the project's scope, the RFP provided that "[t]he Project Manager will be involved with defining the project scope and creating the organization and structure needed to complete addition, a the successful RFP upgrade assigned the and implementation." Project Manager In training responsibilities: Training: The Project Manager will: a. Identify, recommend and County's training needs. coordinate Racine b. Specify the type i. Formal JDE training ii. Internal workshops iii. Web training c. Assist in the proper training of the County's project team to gain the necessary understanding of the capabilities of the software. d. Assist in understanding the software's rich functionality to better identify and establish accurate and realistic goals and objectives. e. Provide effective communication and debriefing of the instructor(s) allowing the Project Manager to assist Racine County to refine the scope of business process analysis. ¶8 completed The RFP further provided that the project was to be in three stages. Phase 5 1, titled "Set up of No. Infrastructure and Configurative Network 2007AP2861 Computing," required the consultant to "install and configure Peoplesoft One 8.0 on the deployment server and set up a minimum of three fat client stations that will all run locally." Phase 2 was titled "Complete install, set up and training for new Peoplesoft One Human Resources/Payroll." Within that phase, the RFP outlined the current and required functionality of Racine County's human resources and payroll systems. Phase 3 was titled "Upgrade current functioning modules from Peoplesoft World to Peoplesoft One." ¶9 Finally, Requirements." the RFP listed several "Proposal Relevant to this case, the RFP provided that "[v]endors shall submit a detailed proposal" that includes a "Project Task List": a. Break down the work program into the three phases ('1' through '3') as stated above . . . . b. Break down each phase application activities. into technical and c. Submit a proposed GANT [sic] Chart3 schedule listing all procedures including training for each phase of the project. Identify the task name, duration (no. of days), start date, finish date and party responsible for each task. ¶10 On December 3, 2003, Oracular submitted to Racine County a "Proposal for PeopleSoft Consulting" (the proposal). 3 A Laurence to time, American 1992). Gantt chart, named after American engineer Henry Gantt, is "[a] chart that depicts progress in relation often used in planning and tracking a project." The Heritage Dictionary of the English Language 746 (3d ed. 6 No. In the proposal's "Executive Summary," Oracular 2007AP2861 stated its "intent to work with Racine County to implement OneWorld as a new baseline enterprise software solution." Oracular wrote that it would "combine the talents of [its] consulting organization with the talents of the Racine County staff in order to complete this project on time and on budget." The proposal's "Preliminary Project Plan" indicated that Oracular would "[p]lan a staggered approach to begin each major area of accomplishment while focusing on a combined Go-Live date of September 1, 2004." Oracular also wrote, however, that "[a] detailed work plan will be completed prior to beginning the project and will need to be verified by the project team at that time." ¶11 The Assumptions." proposal Two of also those included a assumptions list were of "Project categorized as "Training & Education": ¢ Racine County procedures and project. ¢ All core training will be conducted internally and delivered by the project consulting staff. Training is to include guidance to key users on set-up or end-user procedure and training manuals. ¶12 will construct all training materials end-user for the Finally, to complete the project, Oracular proposed a seven-phase plan. Those seven phases were broken down in a Gantt chart, attached to the proposal as Addendum A. The Gantt chart listed a project duration of 170 working days and a "GoLive" date of September 6, 2004. 7 No. ¶13 On January 12, 2004, Oracular 2007AP2861 submitted to Racine County an additional addendum to its proposal, which made minor budget adjustments. reviewing and The adjusting addendum the also proposed provided: project plan "After we have identified a total of 862 hours required to perform tasks by Racine County financial representatives. This dedication will be required from January 19, 2004 through September 10, 2004 for a total of 35 weeks." ¶14 Racine County selected Oracular as the vendor for its software upgrade entered project. into a On February "Consulting 2, the parties Agreement," Service 2004, which incorporated by reference the RFP, the proposal, Addendum A to the proposal, proposal. and the January 12, 2004, addendum to the In the event of a conflict or inconsistency among the documents, the prioritization: (a) Agreement the instituted Agreement, (b) the Addendum following A to the proposal, (c) the January 12, 2004, addendum to the proposal, (d) the proposal, and (e) the RFP. Pursuant to the Agreement, the total amount of the project was not to exceed $389,250. Oracular agreed to provide consulting services to Racine County, and Racine County agreed to accept consulting services and pay Oracular, on certain terms, including: a. Proposal cost and project plan are based on requirements outlined in the Request for Proposal submitted by Racine County except for the following modifications: i. Project completion of Phase 1 through Phase 3 shall be started in a staggered approach 8 No. 2007AP2861 with a combined Go-Live goal of September 7, 2004. In addition, the Agreement included a termination provision, which provided that "[e]ither party may terminate this Agreement and/or outstanding Project Proposals by written notice of not less than fifteen days." ¶15 For reasons which we will discuss infra, Racine County terminated the Agreement on February 16, 2006, and commenced this lawsuit against Oracular on September 26, 2006. The complaint4 alleged two causes of action: breach of contract and fraudulent representations in violation of Wis. Stat. § 100.18 (2007-08).5 provided In particular, Racine County alleged that the staff by Oracular was "for all practical purposes, incompetent" and that Oracular misrepresented "a time table for completion and implementation of the project." the allegations and counterclaimed for Oracular denied breach of contract, quantum meruit, and promissory estoppel. ¶16 On October 1, 2007, Oracular moved for summary judgment on Racine County's breach of contract claim. As its primary grounds, Oracular asserted that Racine County failed to carry its burden of proving that Oracular breached the standard 4 Racine County filed an amended complaint on December 15, 2006, that incorporated by reference the original complaint. 5 All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated. On February 19, 2007, the parties stipulated to the dismissal of Racine County's fraudulent representations claim, and the circuit court ordered its dismissal without prejudice on February 21, 2007. 9 No. of care. a 2007AP2861 According to Oracular, the Agreement in this case was contract software for professional programming services, services. specifically Therefore, citing computer Hoven v. Kelble, 79 Wis. 2d 444, 463, 256 N.W.2d 379 (1977), and MicroManagers, Inc. v. Gregory, 147 Wis. 2d 500, 513, 434 N.W.2d 97 (Ct. App. 1988), Oracular argued that Racine County was required to prove negligence. To do so, Racine County needed expert testimony to demonstrate that Oracular's performance fell below the standard of care in the computer consulting industry. Because Racine County failed to name an expert witness, Oracular argued that it was entitled to judgment as a matter of law on the breach of contract claim. ¶17 In judgment, opposition Racine to County Oracular's challenged motion for Oracular's summary attempt to transform the breach of contract claim into a negligence claim. Racine County argued that expert testimony is not necessary to prove that Oracular breached the Agreement by not completing the project on time and by failing to provide competent training. Instead, Racine County employees were capable of presenting the necessary "fact testimony" to prove that Oracular did not provide the services contracted for. ¶18 of its Racine County submitted employee affidavits in support allegation that Oracular missed the original project deadline (the Agreement's "Go-Live goal" date of September 7, 2004), as well as several succeeding promised deadlines. According to Racine County's Finance Director, Douglas Stansil, "the project was, at most, 34% complete" as of September 7, 10 No. 2004. 27, 2007AP2861 Stansil further claimed that Oracular missed a September 2004, extension deadline,6 a September 2005 extension deadline, a December 2005 extension deadline, and finally, a January 2006 extension deadline. According to Stansil, by the time the Agreement was terminated on February 16, 2006, "the project as a whole was still not more than 53% done," and without a fully integrated software system, the project "was of absolutely no value to Racine County and was absolutely useless to Racine County." 6 Racine County argued in its brief before this court, and again at oral argument, that the promised extension deadline of September 27, 2004, was memorialized in a letter sent "in August 2004" from Stansil to Oracular. That letter was attached as an exhibit to Stansil's affidavit. The letter thanks the recipient for "meeting with [Racine County] on August 2, 2004" and further states the following: It was helpful to review with you the importance of the September 27th go live date to Racine County. As we stated in the meeting, if the go live date is missed, the implementation of the HR Payroll system would bee [sic] delayed until next spring due to the increased workload at yearend. This would Cause [sic] the County to pay for an additional year of maintenance on the Infintium system and would require our staff unanticipated work on the Infintium system. Once again we appreciate meeting the Go live date with County can have full faith. your commitment to a product that the However, as it appears in the record, the letter is actually dated November 2, 2006. Oracular does not dispute that the letter was sent in August 2004, and we therefore proceed under that assumption. Likewise, Racine County argued in its brief that "[i]n May 2005," Stansil sent another letter to Oracular memorializing the promised September 2005 extension deadline. That letter, which was also attached to Stansil's affidavit, is actually dated November 13, 2006. 11 No. ¶19 Racine County also several submitted 2007AP2861 employee affidavits in support of its allegation that Oracular failed to provide the affidavits payroll contracted-for of Racine coordinator consultants addition, was Racine training. County's state herself Human that one unfamiliar County's For the Manager and Resources of Oracular's with systems example, the training software. analyst stated in In his affidavit that Oracular's project manager admitted that Oracular staffed the project for failure from the beginning. Racine County argued to the circuit court that these affidavits make evident that the employees' testimony, without the aid of an expert witness, is sufficient to prove that Oracular breached the Agreement. ¶20 Oracular's On November motion for 30, 2007, summary the judgment County's breach of contract claim. circuit and court dismissed granted Racine At the motion hearing, the court stated that the summary judgment dispute "boil[s] down to . . . the necessity or lack of necessity of expert testimony to prove essentially what is pled as a breach of contract." The court was persuaded that "no matter what nomenclature" is used, "the basis of liability is essentially negligence." the court cited Micro-Managers for the conclusion As support, that if a contract is viewed as the rendering of professional services, then the basis of liability is a claim of negligence in failing to perform the services with due care. See 147 Wis. 2d at 513. At issue in Micro-Managers was a contract for the design and development of computer software. 12 Id. at 503-04. Given the No. complexity of developing a functioning computer 2007AP2861 system, the circuit court concluded that expert testimony is required in order for Racine County to prove that Oracular breached the Agreement: "[A]s a matter of law I believe the county would need to withstand the motion for summary judgment, someone with a degree of expertise below the standard consultant when opining of engaged that care in Oracular's required a of consulting a performance fell normal computer contract." Racine County moved for reconsideration, which the circuit court denied on December 6, 2007. ¶21 On April 8, 2009, the court of appeals reversed the order granting summary judgment to Oracular and remanded the case. Racine County v. Oracular Milwaukee, Inc., 2009 WI App 58, 317 Wis. 2d 790, 767 N.W.2d 280. test,7 the court concluded that 7 Adopting an eight-factor computer consultants like The eight factors adopted by the court of appeals include the six identified by the District Court of New Jersey in Hospital Computer Systems, Inc. v. Staten Island Hospital, 788 F. Supp. 1351, 1361 (D.N.J. 1992) (quoting Lincoln Rochester Trust Co. v. Freeman, 311 N.E.2d 480, 483 (N.Y. 1974)) ("'the requirements of extensive formal training and learning, admission to practice by a qualifying licensure, a code of ethics imposing standards qualitatively and extensively beyond those that prevail or are tolerated in the marketplace, a system for discipline of its members for violation of the code of ethics, a duty to subordinate financial reward to social responsibility, and, notably, an obligation on its members, even in non-professional matters, to conduct themselves as members of a learned, disciplined, and honorable occupation'"), and two additional characteristics set out by the Court of Appeals of New York in Chase Scientific Research, Inc. v. NIA Group, Inc., 749 N.E.2d 161, 166 (N.Y. 2001) ("the learned professions, exemplified by law and medicine" and a relationship "of trust and confidence, carrying with it a duty to counsel and advise clients"). See Oracular Milwaukee, 317 Wis. 2d 790, ¶32. 13 No. Oracular do not constitute "professionals" for 2007AP2861 purposes of determining whether they are subject to professional standards of care. See id., ¶¶32-33. Therefore, the Agreement between Oracular and Racine County was not a contract for professional services but rather a simple contract for services. ¶22 The court of appeals further Id., ¶33. concluded that Racine County is not required to present expert testimony to recover on its breach of contract claim because the alleged breaches are "within juror." the realm of Id., ¶42. the ordinary experience of the average Expert testimony is required "when the jury will be presented with complex [or] esoteric issues" because it will assist the trier of fact. Id., ¶35 (citing Netzel v. State Sand & Gravel Co., 51 Wis. 2d 1, 7, 186 N.W.2d 258 (1971)); see Wis. Stat. § 907.02. The court concluded that in this case, Racine County alleges two major breaches of contract, neither of which is complex or esoteric: the failure to provide training for Racine County's employees who would be using the software and the failure to fulfill the contract Oracular, 317 Wis. 2d 790, ¶¶36, 37. on a timely basis. Furthermore, the court of appeals decided that it would reach the same result even if the Agreement between Oracular and Racine County was a professional services contract: Contrary to the circuit court's holding, expert testimony is not required as a matter of law to prove Because we do not reach the question of whether a computer consultant is a "professional," supra note 2, we take no position on the reasonableness of the court of appeals' eightfactor test to identify what constitutes a "professional." 14 No. 2007AP2861 negligence in performance of a professional services contract. Hoven and Micro-Managers require only that, in actions on professional services contracts, negligence must be established for recovery; neither of those cases mandate[s] expert testimony on professional services contracts. Id., ¶39. Oracular In this case, Racine County did not allege that breached the Agreement by failing to comply with industry standards; rather, Racine County alleged that Oracular breached the Agreement by not completing the project by the date agreed to and by failing to provide competent training. Id., ¶42. ¶23 Though on different grounds, we now affirm the decision of the court of appeals and remand to the circuit court for further proceedings. II. STANDARD OF REVIEW ¶24 "'Whether the circuit court properly granted summary judgment is a question of law that this court reviews de novo.'" Hocking v. City of Dodgeville, 2009 WI 70, ¶7, 318 Wis. 2d 681, 768 N.W.2d 552 (quoting Schmidt v. N. States Power Co., 2007 WI 136, ¶24, 305 Wis. 2d 538, 742 N.W.2d 294). We apply the same standards as those used by the circuit court, which are set forth in Wis. Stat. § 802.08. Id.; see also Noffke v. Bakke, 2009 WI 10, ¶9, 315 Wis. 2d 350, 760 N.W.2d 156. In addition, whether expert testimony is necessary to prove a given claim is a question of law that we review de novo. See Trinity Lutheran Church v. Dorschner Excavating, Inc., 2006 WI App 22, ¶26, 289 Wis. 2d 252, 710 N.W.2d 680. 15 No. 2007AP2861 III. ANALYSIS ¶25 Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." § 802.08(2). To make its determination, the Wis. Stat. court decides whether there is a genuine issue of material fact; the court does not decide the fact. Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473 (1980); see also Camacho v. Trimble Irrevocable Trust, 2008 WI App 112, ¶11, 313 Wis. 2d 272, 756 N.W.2d 596. The court should "carefully scrutinize[]" the materials offered by the moving party, Grams, 97 Wis. 2d at 339, and should not grant summary judgment "unless the moving party demonstrates a right to a judgment with such clarity as to leave no room for controversy," id. at 338. ¶26 The party opposing summary judgment "may not rest upon the mere allegations or denials of the pleadings" but instead, through affidavits or otherwise, "must set forth specific facts showing that there is a genuine issue for trial." § 802.08(3). If "for reasons stated," that Wis. Stat. party cannot by affidavit present facts essential to justify its opposition, the court may refuse the motion for summary judgment or may order a continuance to permit such discovery to be had. ¶27 In this case, the circuit summary judgment to Oracular. Based court upon § 802.08(4). improperly granted the pleadings and affidavits, Racine County was not required to name an expert 16 No. witness as a matter of law. 2007AP2861 Moreover, the breach of contract claim presents numerous genuine issues of material fact which preclude summary judgment. A. Expert Testimony ¶28 "The requirement extraordinary one." N.W.2d 557 expert testimony is an White v. Leeder, 149 Wis. 2d 948, 960, 440 (1989). "unusually of Expert complex or testimony esoteric" is issues often are required before the when jury See Wis. Stat. because it serves to assist the trier of fact. § 907.02; White, 149 Wis. 2d at 960; City of Cedarburg Light & Water Comm'n v. Allis-Chalmers Mfg. Co., 33 Wis. 2d 560, 567, 148 N.W.2d 13 (1967). necessary to common assist the knowledge experience. In or contrast, trier those of expert fact within testimony concerning the realm is not matters of of ordinary See Netzel, 51 Wis. 2d at 6; Cramer v. Theda Clark Mem'l Hosp., 45 Wis. 2d 147, 150, 172 N.W.2d 427 (1969). In fact, if the court or jury is able to draw its own conclusions without the aid of expert testimony, "the admission of testimony is not only unnecessary but improper." Wis. 2d at 151. 142 Cramer, 45 Of course, the admission of expert testimony is within the sound discretion of the circuit court. Hintz, such Wis. 2d 404, 422, 418 N.W.2d 795 Kerkman v. (1988). Expert testimony is admissible provided that the witness is "qualified as an expert by knowledge, skill, experience, training, or education," and the testimony "will assist the trier of fact to understand the evidence or to determine a fact in issue." Stat. § 907.02. 17 Wis. No. ¶29 2007AP2861 In this case, in order to survive summary judgment, Racine County was not required to name an expert witness. As a preliminary point, Racine County alleged breach of contract, not negligence. failed to There is no allegation that Oracular's performance meet the standards of the computer industry whatever those may or may not be. consulting Accordingly, the issue is not whether Racine County is required to present expert testimony in order to demonstrate that Oracular's performance fell below the industry standard of care.8 Instead, the issue is whether in order to survive summary judgment, Racine County was required to name an expert witness when the complaint alleged that Oracular breached the parties' Agreement. ¶30 As it was alleged in the complaint and presented in the affidavits, Racine County's breach of contract claim does 8 In its brief before this court, Oracular argued that in order for Racine County to succeed on its breach of contract claim, it must present expert testimony regarding Oracular's failure to meet the standards in the computer consulting industry because implicit in every service contract is a duty to perform consistent with standard industry custom and practice. For that proposition, Oracular cited Milwaukee Cold Storage Co. v. York Corp., 3 Wis. 2d 13, 25, 87 N.W.2d 505 (1958). Contrary to Oracular's contention, Milwaukee Cold Storage does not hold that a prerequisite to proving breach of a services contract is a showing of the failure to perform consistent with standard industry custom and practice. Rather, in that case, this court recognized that "accompanying every contract there is a commonlaw duty to perform with care, skill, reasonable expedience, and faithfulness the thing agreed to be done, and that a negligent failure to observe any of such conditions is a tort as well as a breach of contract . . . ." Id. That a negligent failure to perform a contract with care and skill gives rise to a breach of contract claim is an entirely different matter from what is necessary to prove Racine County's breach of contract claim. 18 No. 2007AP2861 not present issues so "unusually complex or esoteric," White, 149 Wis. 2d at testimony.9 960, See as Wis. to demand Stat. the assistance § 907.02. Rather, of the expert alleged breaches concern matters of common knowledge and are within the realm of ordinary experience. Cramer, 45 Wis. 2d at 150. that Oracular breached See Netzel, 51 Wis. 2d at 6; In particular, Racine County alleges the Agreement by not completing the project on time and by failing to provide competent training. On those alleged breaches, the trier of fact is capable of drawing its own conclusions without the assistance of expert testimony. See Cramer, 45 Wis. 2d at 151; Wis. Stat. § 907.02. ¶31 Based on its affidavits, Racine County intends to produce evidence that Oracular breached the Agreement by not completing the project on time. Racine County will argue that 9 As its primary grounds for summary judgment, Oracular asserted that Racine County's failure to name an expert witness was deficient as a matter of law. We recognize that Racine County, in opposition to Oracular's motion, presented no affidavits refuting Oracular's specific point that expert testimony was required. Instead, the affidavits were focused solely on supporting Racine County's claim that Oracular breached the Agreement. The party opposing summary judgment "may not rest upon the mere allegations or denials of the pleadings but the adverse party's response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial." Wis. Stat. § 802.08(3). While Racine County set forth specific facts in its affidavits demonstrating a genuine issue for trial on the breach of contract claim, it did not set forth specific facts in its affidavits demonstrating a genuine issue regarding the requirement of expert testimony. Instead, through its brief and at the motion hearing, Racine County rested upon argument to the circuit court that expert testimony was not necessary. 19 No. the Agreement expressly states that "[p]roject 2007AP2861 completion of Phase 1 through Phase 3 shall be started in a staggered approach with a combined Go-Live goal of September 2004."10 7, If September 7, 2004, was intended as the project deadline, see discussion of "Genuine Issues of Material Fact" infra Part III.B., the fact-finder is capable of determining for itself whether the project was indeed completed by that time. Similarly, the fact-finder can evaluate whether the deadline was repeatedly intends modified to argue. installation project and repeatedly missed, as The question of whether was completed by a Racine the specified County software date is distinct from the complexity of the work that goes into the installation complexity that Racine County concedes. The former is not so "unusually complex or esoteric," White, 149 Wis. 2d at 960, testimony. See Wis. Stat. § 907.02. ¶32 as to require the assistance of expert Racine County also intends to produce evidence that Oracular breached the Agreement by failing to provide competent training. As shown in the affidavits, several Racine County employees will testify that 10 one of Oracular's training Oracular's argument that expert testimony is required to establish a "reasonable" time for project completion is without merit. A reasonable time for performance is implied "[w]here there is no provision as to the time for performance." Delap v. Inst. of Am., Inc., 31 Wis. 2d 507, 512, 143 N.W.2d 476 (1966). In this case, the Agreement expressly states a project completion date. Whether that date was intended as a firm deadline or only a "goal" presents a question of fact which does not necessarily require the assistance of expert testimony. 20 No. 2007AP2861 consultants was herself unfamiliar with the software and that Oracular's project manager admitted that the project was staffed for failure. Based upon that evidence, the fact-finder is capable of drawing upon common knowledge and ordinary experience to determine whether Oracular provided competent training. See Netzel, 51 Wis. 2d at 6; Cramer, 45 Wis. 2d at 150; Wis. Stat. § 907.02. ¶33 We conclude only County that was in not order to survive required to name summary judgment, Racine an expert witness. In so concluding, we do not close the door to the possibility that expert testimony may later assist the trier of fact in evaluating Racine County's breach of contract claim. Our point is only that in the posture of summary judgment, Racine County was not required to name an expert witness as a matter of law. B. Genuine Issues of Material Fact ¶34 We also conclude that the breach of contract claim presents numerous genuine issues of material fact which preclude See Wis. Stat. § 802.08(2). summary judgment at this time. To demonstrate, we need point to only the most glaring of examples. See id. (precluding summary judgment if there is issue as to any material fact" (emphasis added)). a "genuine Whether the Agreement's "Go-Live goal of September 7, 2004," was intended as a firm deadline or only a target completion date presents a genuine issue of material fact. See Younger v. Rosenow Paper & Supply Co., Inc., 51 Wis. 2d 619, 629-30, 188 N.W.2d 507 (1971) ("While the legal effect to be given an agreement may, in a 21 No. 2007AP2861 proper case, be determined on a motion for summary judgment, where there is a dispute as to the intent of the parties to the agreement, a fact issue is presented, and summary judgment is inappropriate." (emphasis omitted)(footnotes omitted)); Lemke v. Larsen Co., 35 Wis. 2d 427, 431, 151 N.W.2d 17 (1967). Likewise, Oracular's assertion that the collaborative language used in the RFP and the proposal imposed "bilateral performance" obligations on the parties, some of which were out of Oracular's control, is disputed by Racine County and therefore presents a genuine issue of material fact. Finally, there is a factual dispute as to which party is responsible for the suspension of the project between the end of September 2004 and March 2005. Pursuant to Wis. Stat. § 802.08(2), any and all of these genuine issues of material fact preclude summary judgment at this time. IV. CONCLUSION ¶35 In summary, we summary judgment, Racine expert witness. conclude County that was in not order to survive required to name an As alleged, Racine County's breach of contract claim does not present issues so unusually complex as to require expert testimony as a matter of law. In so concluding, we do not close the door to the possibility that expert testimony may later assist the contract claim. trier of fact in evaluating the breach of Rather, we decide that based upon the pleadings and affidavits, Racine County was not required to name an expert witness in order to proceed. Moreover, the breach of contract claim presents numerous genuine issues of material fact which otherwise preclude summary judgment. 22 Accordingly, though on No. different grounds, we affirm the decision of 2007AP2861 the court of appeals and remand to the circuit court for further proceedings. By the affirmed, Court. The and the decision cause of remanded the to court the circuit further proceedings consistent with this opinion. 23 of appeals is court for No. 1 2007AP2861
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