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COURT OF APPEALS DECISION DATED AND FILED December 19, 2006 Cornelia G. Clark Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
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����������� APPEAL from a judgment of the circuit court for Rusk County:� EUGENE D. HARRINGTON, Judge.� Affirmed.�
����������� Before Cane, C.J., Hoover, P.J., and Peterson, J.�
�1������� PER CURIAM. This suit arises out of an agreement settling previous litigation between the parties.� David Lambert argues the court erred in dismissing this most recent suit because he has a valid breach of contract claim and is entitled to money damages.� We conclude Lambert waived his contract claim and his argument that he is entitled to damages based on his reliance interest.� We therefore affirm the judgment.
Background
�2������� This litigation involves the abortive sale of an approximately 235-acre parcel on the Chippewa River in Rusk County.� Fred and Michael Kleinheinz are the original owners of the parcel.� On April 9, 2003, Lambert offered to purchase the property for $3.16 million.� The offer ended in litigation, with each side filing a separate lawsuit against the other.
�3������� On October 25, 2004, the parties agreed to settle the two lawsuits and signed an agreement to that effect.� The agreement gave Lambert the right to purchase the land for $2 million provided closing occurred by February 25, 2005.� The February 25 deadline was extended, eventually to April 22, 2005.� However, Lambert was unable to secure the financing needed to purchase the property.���
�4������� Lambert then filed this suit on July 7, 2005.�� Lambert alleged five claims.� The claims included a breach of contract claim and a claim of strict responsibility misrepresentation.� Both alleged the Kleinheinzes had failed to inform Lambert of pending Department of Natural Resources (DNR) actions.� The breach of contract claim alleged the Kleinheinzes had breached the settlement agreement by failing to inform Lambert of the DNR actions.� The misrepresenta-tion claim alleged Lambert had been induced to enter into the settlement agreement by false statements about the DNR actions made by the Kleinheinzes.�
�5������� The matter was set for trial on March 14-15, 2006.� In a pretrial statement filed March 3, Lambert stated he was narrowing his legal theory to strict responsibility misrepresentation.� He also stated he would limit his remedy to rescission of the settlement agreement and reinstatement of his original lawsuit. �In his opening statement at trial, Lambert referred the court to his pretrial statement and repeated his arguments that Lambert had entered into the settlement agreement based on the Kleinheinzes� misrepresentations and that he was entitled to rescind that agreement.� Lambert did not mention any claim for breach of the settlement agreement.�
�6������� At the close of Lambert�s case in chief, the Kleinheinzes moved for a directed verdict and renewed their motion to dismiss.� They argued Lambert had failed to prove he was entitled to rescind the settlement agreement as a remedy.� The court agreed Lambert had failed to prove he was entitled to rescission. �However, before granting Kleinheinzes� motion, the court asked Lambert whether he had any money damages.� After some discussion, the court concluded Lambert had no damages and dismissed the suit.
Discussion
�7������� On appeal, Lambert argues the court erred in dismissing his breach of contract claim and incorrectly failed to take his reliance damages into account.[1]� We conclude Lambert has waived his arguments by failing to raise them at the circuit court.
�8������� In order to preserve an issue for appeal, a party must raise it �with sufficient prominence such that the trial court understands that it is being called upon to make a ruling.�� Bishop v. City of Burlington, 2001 WI App 154, �8, 246 Wis. 2d 879, 631 N.W.2d 656.� In addition, we generally do not consider arguments raised for the first time on appeal.� State v. Hansford, 219 Wis. 2d 226, 243 n.16, 580 N.W.2d 171 (1998).� These rules are based on our reluctance to blindside circuit courts with reversals based on theories that did not originate in their forum.� Schonscheck v. Paccar, Inc., 2003 WI App 79, �11, 261 Wis. 2d 769, 661 N.W.2d 476.
�9������� Lambert first argues the court erred by dismissing his suit because he has a valid breach of contract claim.� However, as noted above, Lambert�s pretrial statement specifically limited the issues at trial to his strict responsibility misrepresentation claim and his proposed rescission remedy.� Lambert fails to point to anything in the record where he attempted to change that impression.[2]� Instead, he argues the court �invited� him to bring his breach claim after the court concluded rescission was not available as a remedy.
�10����� Lambert mischaracterizes the court�s statement.� The court never mentioned reinstatement of any of Lambert�s other claims.� Rather, after the court concluded Lambert was not entitled to rescission, the court asked Lambert whether he was �prepared to go forward today with the appropriate evidence to show that [he] suffered monetary loss.�� The court and the parties then discussed whether Lambert had any money damages.� Assuming Lambert could have revived his contract claim at that point, this exchange was insufficient to inform the circuit court that it was called upon to make a ruling on whether evidence supported a breach of contract claim.� See Bishop, 246 Wis. 2d 879, �8.[3]�
�11����� Lambert also argues the court erred by concluding he has no damages.� On appeal, Lambert argues he is entitled to reliance damages�that is, damages that will place him in the position he would have been in had the contract not been made.� See Reimer v. Badger Wholesale Co., 147 Wis. 2d 389, 395, 433 N.W.2d 592 (Ct. App. 1988).�
�12����� Again, Lambert raises this argument for the first time on appeal.� In his brief, he concedes that �[f]or some reason, neither the Circuit Court nor David Lambert�s counsel considered the damages that David Lambert is entitled to based on his �reliance interest.��� Because Lambert never asserted a reliance theory at the circuit court, he waived that argument, and we decline to address it.� See Hansford, 219 Wis. 2d at 243 n.16.�
By the Court�Judgment affirmed.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)5 (2003-04).
[1] Lambert does not take issue with the court�s conclusion that he is not entitled to rescission as a remedy.�
[2] Lambert argues his opening statement noted a breach of contract claim.� However, Lambert in his opening was referring to the breach of contract claim in his prior suit, not a claim for breach of the settlement agreement.
[3] Lambert also argues he did not waive this argument because he did not voluntarily and intentionally relinquish his right to proceed with his contract claim.� See Preston v. Meriter Hosp., Inc., 2005 WI 122, �16, 284 Wis. 2d 264, 700 N.W.2d 158.� However, Preston reaffirms the general rule that failure to properly preserve a claim in circuit court waives that claim.� Id.