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COURT OF APPEALS DECISION DATED AND RELEASED SEPTEMBER 10, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0559-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
KENNETH BINGER,
Plaintiff-Appellant,
v.
JAMES J. ANDERSON and
DAWN M. ANDERSON,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Milwaukee County:
WILLIAM J. HAESE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER
CURIAM. Kenneth Binger appeals from an order granting summary
judgment in favor of James and Dawn Anderson.
He argues that the trial court should not have granted summary judgment
against him on his claim for intentional misrepresentation. Pursuant to this court's order dated April
3, 1996, this case was submitted to the court on the expedited appeals
calendar. See § 809.17, Stats.
We affirm.
Binger purchased
property from David Schmidt on October 11, 1994. Schmidt had purchased the property from James and Dawn Anderson
on August 15, 1994. After the closing
in August, Schmidt had sent a Real Estate Condition Report to the Andersons in
Tennessee, where they had moved. The
cover letter advised them that they had to complete the report to comply with
Wisconsin law. In the report, the
Andersons disclosed that work was performed on the basement walls of the house
in 1990, before they had purchased the property, and that they had no water
problems in the basement in their four years of ownership.
After Binger had owned
the property for about nine months, he brought an action for intentional
misrepresentation against the Andersons based on water problems in the
basement, claiming that he saw and relied on the condition report completed by
the Andersons in purchasing the home from Schmidt.[1] The Andersons had never met nor spoken with
Binger until this lawsuit was commenced.
Summary judgment allows
disputes to be settled without trial where there are no disputed material facts
and only legal questions are presented.
In re Cherokee Park Plat, 113 Wis.2d 112, 115-16, 334
N.W.2d 580, 582-83 (Ct. App. 1983). The
statute upon which Binger based his intentional misrepresentation claim,
§ 100.18, Stats., provides
that "[n]o person ... with intent to sell ... or in any [way] dispose of
any real estate ... offered by such person ... shall make ... [a]
representation of any kind to the public relating to such purchase ...
contain[ing] any assertion, representation or statement of fact which is
untrue, deceptive or misleading."
We conclude that the trial
court properly granted summary judgment in favor of the Andersons because the
Andersons had shown that they had a defense to a claim for intentional
misrepresentation. See In
re Cherokee Park Plat, 113 Wis.2d at 116, 334 N.W.2d at 583. There was nothing to suggest that the
Andersons intended to deceive Benger in filling out the condition report. When the Andersons filled out the condition
report, the property had already been sold to Schmidt. There is no allegation that the Andersons
were agents of Schmidt, or that the Andersons prepared the condition report to
aid Schmidt in selling the property.
They had no reason to induce Schmidt to buy the property as he had
already purchased it. They had no
interest in -- and were not even aware of -- Schmidt's subsequent sale to
Binger. We agree with the Andersons
that they had "no conceivable reason to induce anyone to purchase the
property they had already sold."[2]
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Binger initially brought four causes of action -- breach of contract, strict responsibility, recision, and intentional misrepresentation. Subsequently, however, he acknowledged that by virtue of the lack of any contractual relationship between the Andersons and himself, the first three claims were not viable.