|
COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER 12, 1996 |
NOTICE |
|
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0263
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
RANDALL J. WILSON and
MIRIAM I. WILSON,
Plaintiffs-Appellants,
v.
THE ESTATE OF ELSIE L.
WOODFORD,
C/O DONALD WOODFORD,
PERSONAL
REPRESENTATIVE, and
THE ESTATE OF ALVIN L.
WOODFORD,
C/O DONALD WOODFORD,
PERSONAL
REPRESENTATIVE,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Chippewa County:
RODERICK A. CAMERON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. This dispute arises out of a 1983 real
estate transaction. Randall and Miriam
Wilson appeal a judgment dismissing their claims against the estates of Elsie
Woodford and Alvin Woodford, both deceased.
The Wilsons claim breach of warranty and strict responsibility,
intentional, and negligent misrepresentation in failing to disclose defects in
the property. They seek compensatory
and punitive damages. They argue that
the trial court erroneously (1) found that there was no evidence that the Woodfords
knew or should have known about defects in the septic system; (2) concluded
that the evidence failed to support the legal theory of strict responsibility
misrepresentation; and (3) determined damages.
Because the record supports the trial court's findings with respect to
liability, we do not reach the issue of damages and affirm the judgment of
dismissal.
In 1983, the parties
entered into an offer to purchase the Woodford's 222-acre dairy farm for
$160,000. The farm included a farm
house built in the 1920s, a ranch style home built in 1958, a barn and
outbuildings. The offer was signed by
the Wilsons, Elsie Woodford and Donald Woodford, the personal representative of
his late father's, Alvin Woodford's, estate.
The offer stated:
Seller
warrants and represents to Buyer that Seller has no notice or knowledge of: ...
AND STRUCTURAL OR MECHANICAL DEFECTS OF MATERIAL SIGNIFICANCE IN PROPERTY,
INCLUDING ADEQUACY AND QUALITY OF WELL AND SANITARY DISPOSAL SYSTEMS.
Elsie, who was in her
sixties at the time of the transaction, had lived on the farm for over forty
years. The Wilsons moved onto the farm
in 1983. In 1990, after living on the
property for seven years, Randall Wilson, a lawyer and certified public
accountant, discovered defects in the foundation of the ranch home and that the
sanitary system was not in compliance with certain code requirements. Also discovered were that the footings for
the garage and bedroom addition were not built below the forty-eight-inch frost
line. The Wilsons also discovered that
the septic system for the farmhouse drained into an open drain field; the
septic tank for the ranch was not set back at least five feet from the
foundation wall as current code required; and the garage floor was cracked and
lacked a sand lift and reinforcements.
The
Wilsons initiated this action in 1993.
At the trial to the court, the Wilsons relied on the representations
contained in the written offer to purchase agreement. Alvin Woodward had died prior to the 1983 transaction. Randall did not recall any conversations
with Donald Woodward, Alvin's son, until after deal was closed. Randall negotiated the transaction with
Elsie but did not testify to any specific conversations they had. The trial court ruled that the record failed
to support a finding that Elsie knew or should have known of any defects and
ordered the complaint dismissed. The
Wilsons appeal.
The Wilsons argue that
the trial court erred when it concluded there was insufficient evidence to find
that the Woodfords knew or should have known of the septic system defects. We disagree. Appellate courts do not reverse trial court findings of fact
unless they are clearly erroneous. Fryer
v. Conant, 159 Wis.2d 739, 744, 465 N.W.2d 517, 520 (Ct. App.
1990). When there is conflicting
testimony, the trial court is the ultimate arbiter of the credibility of the
witnesses. Noll v. Dimiceli's,
Inc., 115 Wis.2d 641, 644, 340 N.W.2d 575, 577 (Ct. App. 1983). Appellate courts defer to the trial court's
superior opportunity to observe witness demeanor. In re Estate of Dejmal, 95 Wis.2d 141, 152, 289
N.W.2d 813, 818 (1980). We do not
substitute our judgment for that of the trial court on issues of weight and
credibility of the evidence unless the evidence is inherently incredible. In re Estate of Jones, 74
Wis.2d 607, 613, 247 N.W.2d 168, 171 (1976).
Inherently incredible means to be in conflict with the uniform course of
nature or with fully established or conceded facts. See Chapman v. State, 69 Wis.2d 581, 583, 230 N.W.2d 824, 825 (1975).
The Wilsons rely on the following testimony
to demonstrate Elsie's knowledge. Elsie
customarily gardened near the farmhouse septic system drain. A plumber testified that he worked on the
ranch-style farmhouse septic system, and his inspection indicated the farm's
system was illegal. In such
circumstances he customarily told the owners that their system was illegal and
needed replacement. As Wilson
testified: "Circumstantial evidence tells me she knew."
However, it was
undisputed that Elsie maintained the property in near immaculate
condition. If there was a problem on
the property, she or her husband hired well-reputed contractors and plumbers to
fix the problem. The septic system
never gave them a problem. Twice a
year, state inspectors inspected their entire farm operation, including the
septic system, and gave them a Grade A rating.
The plumber never testified that he told Elsie that her septic system
was defective or illegal. Her system
was a typical system for older farms in that area. There was testimony that plumbing codes changed and evolved over
the years, and there is no indication that Elsie had any familiarity with
them.
The Wilsons, with two
children, moved onto the property in 1983, but no problems were noticed until
1990. A state soil expert testified
that the Wilsons are not required to replace the system in absence of a health
hazard. The record discloses no
evidence of a present health hazard that requires replacement. When circumstantial evidence permits more
than one reasonable inference, we must accept the inference drawn by the trial
court. Voigt v. Riesterer,
187 Wis.2d 459, 467, 523 N.W.2d 133, 136 (Ct. App. 1994). The record supports the trial court's
finding that Elsie had no knowledge of any defect or illegality in the septic
system.
Next,
the Wilsons argue that the trial court erroneously determined that the record
was insufficient to support a claim of strict responsibility. We disagree. A claim for strict responsibility requires proof of five elements:
(1) the defendant made a representation of fact; (2) the representation was
untrue; (3) the defendant made the representation based on his own personal
knowledge or in circumstances in which he necessarily ought to have known the
truth or falsity of the statement; (4) the defendant had an economic interest
in the transaction; and (5) the plaintiff believed such representation to be
true and relied on it. Reda v.
Sincaban, 145 Wis.2d 266, 269, 426 N.W.2d 100, 102 (Ct. App.
1988). The record supports the trial
court's conclusion that there was insufficient evidence to find that Elsie knew
or necessarily should have known that the representations made in the offer to
purchase were untrue.
Next, the Wilsons argue
that because Elsie was a farm wife who lived on the property for forty years,
and contracted for the construction of the garage and bedroom addition to the
ranch house, she should have possessed personal knowledge of the property's
foundation defects.[1] The trial court heard conflicting testimony
with respect to the alleged foundation defects. The court heard testimony from which it could find that the
problems in the foundation were caused by the Wilsons leaving the ranch house
unheated for several winters, causing the foundation to heave and crack.
The Wilsons did not
notice any cracks in the garage floor until after 1990. There is no indication that Elsie had any
knowledge of the construction techniques used on the property because she and
her husband hired well known contractors to do the work. Appellate courts search the record for
evidence to support findings that the trial court made, not for findings the
trial court could have but did not make.
In re Estate of Becker, 76 Wis.2d 336, 347, 251 N.W.2d
431, 435 (1977). The trial court
correctly determined that the record failed to support a claim of strict
responsibility misrepresentation.
In their reply brief,
the Wilsons argue that a law of agency should be applied to impute Elsie's
contractors' knowledge to her. They
further argue that the written warranty in the offer to purchase implies
personal knowledge of the nature and condition of the property, and therefore
Elsie should be charged with that knowledge as a matter of law. Also, they contend that a "reasonable
person" standard applies, rendering her subjective knowledge irrelevant
and charging her with the knowledge that her system was illegal and defective
per se. They further argue: "There
are no excuses or defenses to nondisclosure or misrepresentation."
Because these arguments
are not supported by citation to legal authority, we do not address them. See State v. Shaffer,
96 Wis.2d 531, 545-46, 292 N.W.2d 370, 378 (Ct. App. 1980). [T]he Court of Appeals ... is a fast-paced,
high volume court. There are limits
beyond which we cannot go in overlooking these kinds of failings. [F]or us to decide [their] issues, we would
first have to develop them. We cannot
serve as both advocate and judge."
State v. Pettit, 171 Wis.2d 627, 647, 492 N.W.2d 633, 642
(Ct. App. 1992). Also, because the
liability issue disposes of the appeal, we need not address the issue of
damages. We note, however, that the
court's judicial notice of the probate file's $177,000 appraisal of the farm
was taken without objection.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.