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MR v. Turcott2/3/2005
ott engaged in tortious conduct, and (2) nothing in the record on summary judgment tended to show otherwise. Turcott could have chosen to deny at his deposition or by affidavit that he did not intentionally commit acts that resulted in offensive contact with M.R., but he did not do so. Thus, as to the question of whether he could be found liable in tort for the actions M.R. described, "there was nothing to try." See Yahnke, 236 Wis. 2d 257, ("The well-established purpose of summary judgment procedure is to determine the existence of genuine factual disputes in order to `avoid trials where there is nothing to try.'").
. Turcott further contends that the trial court's summary judgment ruling on liability precluded him from introducing at trial yet another statement M.R. gave to police, in which she initially said that Turcott had placed his hand on only her stomach, or from arguing to the jury that any sexual contact that occurred was consensual because M.R. was "both flirtatious and sexually precocious." He points to no place in the record, however, where he attempted but was prevented by the court from (1) introducing M.R.'s initial, allegedly exculpatory statement at trial; (2) otherwise attempting to undermine her credibility; or (3) pursuing or arguing his consent theory.
. In ruling on Turcott's post-verdict motion, in which Turcott also maintained that the court's summary judgment ruling had precluded him from raising certain defenses and making certain arguments, the trial court said this:
I think the only defense I took away from you by ruling on summary judgment was the "It didn't happen at all" defense. I think all the other possible defenses, either that M.R. was consensual or consenting participant in the activity or that the activity was only the kind of touching first described or that the activity was the completed intercourse later described, all of those claims could have been made and her credibility could have been challenged I think in the context of the damages phase. Because the jury had to reach some conclusions about what happened in order to award damages. The only thing you were prohibited from defending on was on a theory that nothing happened.
We agree with the trial court's assessment.
. We have concluded that the trial court did not err in granting summary judgment on the issue of liability based on the items submitted in support of and opposition to the motion. We acknowledge that the court's pretrial ruling precluded Turcott from arguing that he had engaged in no tortious conduct whatsoever, and rightfully so, given that he failed to counter M.R.'s averments in support of her motion for summary judgment. The record before us does not permit Turcott to belatedly complain about other forgone trial strategies or tactics by asserting that he could not have pursued them. If he truly wanted to challenge M.R.'s trial testimony regarding what Turcott did and how she responded to his actions, he could have and should have attempted to do so. Because he made no such attempt, there is no basis for us to find trial court error on these grounds.
CONCLUSION
. For the reasons discussed above, we affirm the appealed judgment.
By the Court.-Judgment affirmed.
Not recommended for publication in the official reports.
Ordered not published (March 24, 2005 ).
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