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MR v. Turcott2/3/2005
. Jason Turcott appeals a $1.25 million judgment entered against him for damages suffered by M.R., a minor, as a result of Turcott's sexual assault. He claims that the circuit court erred in granting M.R. summary judgment on the issue of his liability for the assault, leaving only damages to be tried to a jury. Turcott contends that inconsistencies between statements M.R. gave to police and her averments in an affidavit in support of summary judgment raised a disputed issue of material fact that preclude summary judgment on the issue of whether he assaulted her. We disagree and conclude instead that Turcott's failure to counter M.R.'s averments with any evidentiary submissions that served to place in dispute whether he had sexually assaulted her entitled M.R. to summary judgment on the issue of liability. Accordingly, we affirm the appealed judgment.
BACKGROUND
. M.R., who was thirteen at the time of the incident, sued Turcott to recover compensatory and punitive damages for his sexually assaulting her. Prior to trial, she moved for summary judgment on the issue of Turcott's liability for committing the assault. In an affidavit supporting the motion, M.R. averred that Turcott had "exposed his genitals to me," "touched my genitalia," and "had sexual intercourse with me," all without her permission. She also submitted excerpts from Turcott's deposition in which he had not denied the conduct but invoked his privilege under the Fifth Amendment against self-incrimination.
. In response to the motion, Turcott submitted copies of police reports indicating that M.R. had first told police that Turcott had exposed himself and touched her genitals but had not had intercourse with her. About one year later, she told police that he "tried to have sex with me.... He did get inside of me but very briefly." Turcott argued that these conflicting accounts of what happened placed M.R.'s credibility in doubt and thus raised a dispute of material fact so as to preclude summary judgment in her favor as to whether he had sexually assaulted her.
. The circuit court granted M.R.'s motion and denied Turcott's motion for reconsideration. The court concluded that, under either of M.R.'s versions of events cited by Turcott, an actionable sexual assault had occurred and Turcott had produced no evidence to the contrary. The jury awarded M.R. $500,000 for past and future pain, suffering and emotional distress, plus $750,000 in punitive damages. Turcott moved to set aside the verdict and for a new trial on the basis that the court had improperly granted summary judgment on the liability issue. The court denied the motion and entered judgment on the verdict. Turcott appeals.
ANALYSIS
. We review an order for summary judgment de novo, owing no deference to the trial court. Waters v. United States Fid. & Guar. Co., 124 Wis. 2d 275, 278, 369 N.W.2d 755 (Ct. App. 1985). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Wis. Stat. ยง 802.08(2). When reviewing the granting of summary judgment, we are to use the same standards and methodology as the trial court. M&I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 496-97, 536 N.W.2d 175 (Ct. App. 1995). We will reverse a decision granting summary judgment if the trial court incorrectly decided legal issues or if material facts are in dispute. Coopman v. State Farm Fire & Cas. Co., 179 Wis. 2d 548, 555, 508 N.W.2d 610 (Ct. App. 1993). We, like the trial court, are prohibited, however, from deciding issues of fact and may decide only whether a factual issue exists. Id.
. Turcott cites
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