COURT OF APPEALS DECISION DATED AND FILED July 14, 2010 A.
John Voelker Acting 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 No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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Nina Stapel,
Plaintiff-Appellant, v. Alberdina Stapel and Rudolph Stapel,
Defendants-Respondents. |
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APPEAL
from a judgment of the circuit court for
Before Brown, C.J., Anderson and Snyder, JJ.
¶1 PER CURIAM. Nina Stapel has appealed from a judgment dismissing her amended complaint against the respondents, Alberdina Stapel and her son, Rudolph Stapel. In awarding judgment, the trial court granted motions for summary judgment filed by Alberdina and Rudolph, and denied a motion for summary judgment filed by Nina. We conclude that the trial court properly granted summary judgment to Alberdina and Rudolph and affirm the judgment.
¶2 When reviewing a grant of summary judgment, we apply the same
methodology as the trial court and decide de novo whether summary judgment was
appropriate. Turner v. Taylor, 2003 WI
App 256, ¶7, 268
¶3 Merely alleging a factual dispute will not defeat an
otherwise properly supported motion for summary judgment. Helland v. Kurtis A. Froedtert Memorial Lutheran
Hosp., 229
¶4 In her amended complaint, Nina alleged that in 1980, she and
Rudolph were married, employed, and living in
¶5 Nina alleged that from 1980 to 1996, when Lukas died, Lukas and Alberdina represented to Nina and Rudolph that they would have the right to buy the farm in the future, and that Alberdina made similar representations from 1996 to 2006. Nina alleged that in reliance on the representations that they would have the right to buy the farm in the future, she and Rudolph made substantial improvements to the farm property in 1981 and thereafter, and Lukas and Alberdina knew of these improvements and recognized them as consideration for the right to buy the farm. Nina further alleged that in 1986 and before the expiration of the 1981 option, Lukas and Alberdina executed an option (the 1986 option), which gave her and Rudolph the right to purchase the real estate belonging to Lukas and Alberdina in the town of Mosel for $125,000. She further alleged that in 1989, Lukas and Alberdina executed an Option Right of First Refusal (the 1989 option), which granted Nina and Rudolph the right to purchase the farm property described in Schedule A of the 1989 option for $180,000.
¶6 Nina alleged that she and Rudolph commenced divorce proceedings in 2005. She alleged that during these proceedings, Rudolph, through his attorney, advised Alberdina that the 1986 option was unenforceable. Nina alleged that Rudolph also advised Alberdina that under the terms of the 1989 option, she could cancel that option. Nina alleged that Alberdina signed a cancellation of the 1989 option on March 16, 2006. She alleged that Alberdina would not have attempted to cancel the 1989 option if Rudolph had not induced her to do so. Nina also alleged that after this cancellation, she served Alberdina with a notice of intent to execute the 1986 option.
¶7 Based upon these factual allegations, Nina made three claims involving Alberdina: (1) requesting declaratory judgment that the 1986 and/or 1989 options were valid and enforceable; (2) alleging that Alberdina should be equitably estopped from refusing to honor the 1986 and/or 1989 options based upon principles of promissory estoppel; and (3) alleging that Alberdina would be unjustly enriched if Nina’s right to purchase the property was not recognized.
¶8 Claims four through nine of Nina’s amended complaint alleged claims against Rudolph. She claimed tortious interference with contract or prospective contract, alleging that Rudolph interfered with the 1986 option by advising Alberdina through his attorney that it was unenforceable, and interfered with the 1989 option by inducing Alberdina to execute a cancellation of it. Nina also alleged that Rudolph breached a duty of good faith and fair dealing owed by him to her. She alleged that Rudolph was liable for intentional, negligent, and strict liability misrepresentations to her. She also alleged that Rudolph engaged in “Constructive fraud/Breach of a fiduciary duty” by his conduct, and that he was liable for punitive damages.
¶9 Applying the standards for appellate review of a trial court decision on motions for summary judgment, we conclude that the trial court properly dismissed all of Nina’s claims.[1] We address her claims seriatim.[2]
¶10 Nina’s claim for declaratory judgment that the 1986 and/or 1989 options were valid and enforceable was properly dismissed. Initially, we note that on appeal, Nina does not dispute that the 1981 option expired on December 31, 1988, and that the 1989 option was cancelled by Alberdina pursuant to its express language providing that the option shall be open until cancelled in writing by the seller. On appeal, she argues that the trial court erred in determining that the 1986 option was unenforceable under the statute of frauds, Wis. Stat. § 706.02 (2007-08).[3]
¶11 An option to purchase real estate that does not conform to the
statute of frauds is void.
¶12 The 1986 option does not satisfy these requirements. The 1986 option states that it gives Nina and
Rudolph the exclusive option to purchase the real estate of Lukas and Alberdina
“situated in the Town of
¶13 Nina contends that the option is saved because when she received it from Lukas in 1986, she also received a handwritten document signed by Lukas and Alberdina and captioned “Esstate (sic) Planning.” That document states:
Real Esstate (sic) of Lukas and Alberdina Stapel
124 acres With Buildings
35 “ of Land Formerly Sandra Knorner’s
35 “ of Land on Corner of Y & A Without Buildings
¶14 This notation in the “Esstate (sic) Planning” document does not clearly identify the land to which it refers. Most importantly, Nina’s argument fails because nothing in the 1986 option refers to this document or indicates that it is incorporating this document. By its express language, the 1986 option states that it is incorporating the real estate description contained in Schedule A, which is blank. Determining that the document captioned “Esstate (sic) Planning” constituted the description of the real estate referred to in the 1986 option would therefore be inconsistent with the express language of the option.
¶15 While Nina attested that she received the document captioned
“Esstate (sic) Planning” from Lukas with the 1986 option, this is insufficient
to demonstrate physical annexation under Wis.
¶16 Nina also argues that the legal description attached to the 1989 option as Schedule A, which set forth legal descriptions for three parcels, identified the land involved in the 1986 option for purposes of satisfying the statute of frauds. This argument is patently unreasonable. The legal description incorporated in an option executed in 1989 cannot be deemed to have been incorporated in an option executed three years earlier, absent satisfaction of one of the methods of incorporation specified in Wis. Stat. § 706.02(2).[5]
¶17 The 1986 option is also void on other grounds. Wisconsin
¶18 An option to purchase also requires consideration separate from
the consideration for the sale. McLellan
v. Charly, 2008 WI App 126, ¶2, 313
¶19 Nina argues that even if the 1986 option is void under Wis.
¶20 For the reasons already discussed, Nina is not entitled to
relief under Wis.
¶21 In her amended complaint, Nina alleged that when Lukas and
Alberdina contacted her and Rudolph in
¶22 To prevail on a claim of promissory estoppel, a claimant must
prove: (1) that the promise was one that
the promisor should reasonably expect to induce action or forbearance of a
definite and substantial character on the part of the promisee; (2) that the
promise induced such action or forbearance; and (3) that injustice can be
avoided only by enforcement of the promise.
McLellan, 313
¶23 Nina’s claim fails for multiple reasons. While Lukas and Alberdina may have induced
Nina and Rudolph to return to
¶24 To the extent Nina alleges that Lukas and Alberdina made similar promises after 1988, no basis exists to conclude that Nina reasonably relied on such promises. Rudolph attested that he was unaware of either the 1986 option or the 1989 option until he was informed of their existence during the divorce proceedings in 2006. Nina similarly attested that she was unaware of the 1989 option until the divorce proceedings in 2006. Nina could not reasonably rely on an option of which she was unaware.
¶25 Unlike Rudolph, Nina attested that she knew of the 1986 option. She attested that Lukas gave her and Rudolph a copy of it in 1986. However, as discussed above, the 1986 option was incomplete and void under the statute of frauds. Nina could not reasonably rely upon it, particularly since it provided that the purchase price would be the fair market value of the property at the end of each calendar year, and that the parties would re-determine the value each year, with the re-determined value to be endorsed on the attached Schedule B. The option further provided that the previously stipulated value would control if the parties failed to make a re-determination of value for a particular year, and listed an initial fair market value of $125,000. Nina could not reasonably rely upon the 1986 option and pursue its enforcement when the value of the property was never updated on the form and, as conceded in her amended complaint, the value of the farm exceeded $780,000 in 2006. It would be inequitable to require Alberdina to sell the farm for $125,000 as provided in the 1986 option, or for $180,000 as set forth in the 1989 option, when its value was more than $780,000.
¶26 For all of these reasons, the trial court properly dismissed Nina’s promissory estoppel claim. It also properly dismissed her claim for unjust enrichment.
¶27 The essential elements of unjust enrichment are: (1) a benefit conferred upon the defendant by
the plaintiff; (2) knowledge or appreciation of the benefit by the defendant;
and (3) acceptance and retention of the benefit by the defendant under such
circumstances that it would be inequitable for the defendant to retain it
without paying the value of it.
¶28 Recovery based on unjust enrichment is sometimes referred to as
a quasi-contract.
¶29 In support of her unjust enrichment claim, Nina alleged that
she and Rudolph expended approximately $300,000 making improvements to the
property, and that Alberdina knew of such improvements and benefited from
them. However, the list of improvements
included by Nina in the summary judgment record establishes that most were made
before 2002. Her cause of action to
recover for improvements accrued when the improvements were made. This action was commenced on May 15,
2008. Any claim for recovery of the cost
of improvements made before May 15, 2002, is therefore time-barred by Wis.
¶30 Nina’s claim that she is entitled to recover based on unjust enrichment for improvements made after May 15, 2002, also fails. It is undisputed that after buying livestock and farm equipment from Lukas and Alberdina, Nina and Rudolph operated a farm business on Lukas and Alberdina’s land for more than two decades.[8] As such, Nina and Rudolph benefited from the improvements made by them. In light of the benefit to them, no basis exists to conclude that failing to require Alberdina to reimburse them would be inequitable. Nina’s claim for unjust enrichment therefore was properly dismissed.
¶31 We conclude that Nina’s claims against Rudolph were also
properly dismissed on summary judgment.
Nina’s claim that Rudolph breached his duty of good faith and fair
dealing, and her claim that he breached a fiduciary duty to her, are barred by
the statute of limitations. Pursuant to Wis.
¶32 The record establishes that Nina knew of her alleged injury
from Rudolph’s conduct in regard to Alberdina and the options at the time of
depositions in the divorce case on April 28, 2006. As already noted, this action was commenced
more than two years later, on May 15, 2008.
Her claims of bad faith and breach of fiduciary duty were therefore
untimely. See Zastrow v. Journal
Communications, Inc., 2006 WI 72, ¶38, 291
¶33 Nina’s claim of tortious interference with contract or
prospective contract was also untimely.
As noted above, Nina alleged that Rudolph interfered with the 1986
option by advising Alberdina through his attorney that it was unenforceable,
and interfered with the 1989 option by inducing Alberdina to execute a
cancellation of it. The elements of a
claim for tortious interference with a contract are: (1) the plaintiff had a current or
prospective contractual relationship with a third party; (2) the defendant
interfered with that relationship; (3) the interference was intentional; (4) a
causal connection exists between the defendant’s interference and the
plaintiff’s damages; and (5) the defendant was not justified or privileged to
interfere. Wolnak v. Cardiovascular &
Thoracic Surgeons of Central Wis, S.C., 2005 WI App 217, ¶14, 287
Wis. 2d 560, 706 N.W.2d 667. To
recover for interference with a contract, it is essential that the defendant
acted intentionally. Cudd
v. Crownhart, 122
¶34 Because Nina’s claim of tortious interference with contract or prospective contract was an intentional tort to the person, it had to be commenced within two years of April 28, 2006.[9] Because she did not file her complaint until May 15, 2008, this claim is barred and was properly dismissed as a matter of law.[10]
¶35 Nina’s remaining claims against Rudolph were intentional
misrepresentation, negligent and strict liability misrepresentation, and
constructive fraud.[11] Intentional, negligent and strict liability
misrepresentation have at least three elements in common: (1) the representation must be of fact and
made by the defendant; (2) the representation of fact must be untrue; and (3)
the plaintiff must believe such a representation and rely on it to his or her
damage. Ollerman v. O’Rourke Co.,
94
¶36 In her amended complaint, Nina alleged that Rudolph interfered with her rights under the options by advising Alberdina that the 1986 option was unenforceable and by inducing her to cancel the 1989 option. In her three misrepresentation claims, Nina alleged that Rudolph had a duty to disclose that he was interfering with Nina’s property rights. She alleged that by failing to disclose his actions, Rudolph made a factual representation that he was not interfering with her property rights.
¶37 These allegations are insufficient as a matter of law to state a claim for intentional, negligent, or strict liability misrepresentation. The fact that Nina considered the 1986 option to be a valid and enforceable option did not render Rudolph’s failure to tell her that he disagreed with her a misrepresentation of any kind. Similarly, Rudolph made no misrepresentation to Nina when, through his attorney, he told Alberdina that he did not believe the 1986 option was valid and enforceable, or pointed out to Alberdina that the 1989 option contained a provision that permitted Alberdina to cancel it. The trial court therefore properly granted summary judgment dismissing all of Nina’s claims against Rudolph, including the claim for punitive damages.
By the Court.— Judgment affirmed.
This
opinion will not be published. See Wis.
[1] After the trial court granted summary judgment dismissing her amended complaint, Nina moved to vacate the order and judgment and for reconsideration. She contends that standards of review applicable to motions for relief from judgment are therefore applicable to this appeal. We disagree. Nina’s motion to vacate judgment and reconsider the order granting summary judgment was premised on an argument that the trial court erred in granting summary judgment. Since we review a trial court’s order granting summary judgment de novo, the only standard of review we need concern ourselves with is the standard of review for an order granting summary judgment.
[2] Because we decide de novo whether summary judgment dismissing Nina’s amended complaint was warranted, we may rely on grounds different than those relied upon by the trial court. This is consistent with the well-established rule that this court will affirm the trial court even if it reached the right result for the wrong reason. State v. Amrine, 157 Wis.2d 778, 783, 460 N.W.2d 826 (Ct. App. 1990).
[3] All
references to the
[4] On its face, the 1986 option permitted the purchasers to exercise the option by paying or tendering the full amount of the purchase price or by written notice of intention to exercise the option, with “completion of repurchase” within 100 days thereafter. The “Esstate (sic) Planning” document referred to settlement within one year after both Lukas and Alberdina passed away.
[5] In rejecting this argument, we also note that the “Esstate (sic) Planning” document refers to parcels totaling 194 acres, while Schedule A attached to the 1989 option refers to three parcels totaling 199 acres. Nina’s contention that the property referred to in Schedule A of the 1989 option is identical to the property referred to in the “Esstate (sic) Planning” document is therefore suspect.
[6] In addition, the date of execution of the 1986 option is not completely filled out, and a notarization section is blank.
[7] We note that the deficiencies in the 1986 option are consistent with the affidavit of Attorney David Van De Water, the former attorney for Lukas and Alberdina, who attested that he prepared a draft of an option in 1986 pursuant to instructions from Lukas, but it was never completed or executed in his office. Attorney Van De Water further attested that when Lukas came to his office in 1989 to have option documents drafted, Lukas indicated that he did not believe any prior option was in effect.
[8] The summary judgment record contains a factual dispute as to whether they lived rent-free on the property.
[9] Nina
cites Segall v. Hurwitz, 114
[10] We
acknowledge that, despite raising the issue in the trial court, on appeal
Rudolph has not raised the statute of limitations as a basis for upholding the
trial court’s dismissal of the claim of tortious interference with contract or
prospective contract. However, as
previously stated, this court must decide de novo whether summary judgment was
warranted. Dismissal of Nina’s claim of
tortious interference with contract, like the claims of bad faith and breach of
fiduciary duty, was warranted under Wis.
[11] Nina’s claim of “constructive fraud” was alleged in her amended complaint as her eighth claim, “Constructive fraud/Breach of a fiduciary duty.” All of the allegations within this claim deal with breach of fiduciary duty. As noted above, Nina’s claim of breach of fiduciary duty is time-barred under Wis. Stat. § 893.57.
We could uphold the trial court’s dismissal of Nina’s
eighth claim based on Wis.