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COURT OF APPEALS DECISION DATED AND RELEASED July 27, 1995 |
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. 95-0799-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
DIANE M. SOMERS,
Plaintiff-Respondent,
v.
JOSEPH LOUKOTKA,
JOHN TIBBITTS and
PRUDENTIAL PREFERRED
PROPERTIES,
Defendants-Appellants,
ABC INSURANCE COMPANY,
Defendant.
APPEAL from a judgment
of the circuit court for Dodge County:
JOSEPH E. SCHULTZ, Judge. Affirmed.
Before Dykman, Sundby
and Vergeront, JJ.
PER CURIAM. Joseph Loukotka, John Tibbitts and
Prudential Preferred Properties appeal from a judgment awarding $15,000 in
damages to Diane M. Somers. The
appellants acted as the seller's agents in Somers's purchase of a
forty-nine-acre farm. Somers specified
in her offer to purchase that the seller must remove all underground
tanks. The appellants disclosed the
existence of and arranged to remove only two such tanks, when there were in
fact six. After a bench trial, the
trial court found that the appellants had intentionally misrepresented the
number of tanks, and awarded Somers the estimated cost of removing the four
remaining tanks. The issue is whether
Somers is entitled to damages, although no proof exists that the four
additional tanks reduced the property's market value. We conclude that she is entitled to removal costs, and therefore
affirm.[1]
When the seller or
seller's agent is liable for intentional misrepresentation "[t]he damages
necessary to give the purchaser the benefit of the bargain will depend on the
nature of the bargain and circumstances of each case.... [A]n alternative measure of recovery is the
reasonable cost of placing the property received in the condition in which it
was represented to be ...." Ollerman
v. O'Rourke Co., Inc., 94 Wis.2d 17, 53, 288 N.W.2d 95, 112
(1980). Here, the facts justified the
trial court's selection of that alternative.
Twice in her offer to purchase, Somers unequivocally made the seller's
removal of all underground tanks a condition of the sale. That is the bargain she thought she
made. The court could reasonably award
as damages the cost of providing her with that bargain. No support exists for the appellants'
contention that for fraudulent misrepresentation the court must choose the
measure of damages resulting in the lowest award or, in this case, no award.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.