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COURT OF APPEALS
DECISION
DATED AND FILED
January 12, 2011
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
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IN COURT OF
APPEALS
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DISTRICT II
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B.G. Lein Management Corp. and Cartlein Investments, LLC,
Plaintiffs-Appellants,
v.
West Bend Mutual Insurance Company,
Defendant-Respondent,
J.K. Contractors, Inc.,
Defendant.
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APPEAL
from the judgment of the circuit court for Waukesha County: Donald
J. hassin, Jr., Judge. Affirmed.
Before Brown, C.J., Anderson and Reilly, JJ.
¶1 PER
CURIAM. B.G. Lein Management Corp. and
Cartlein Investments, LLC, appeal from the order granting summary judgment to West
Bend Mutual Insurance Co. The court
determined that West Bend
did not have a duty to defend J.K. Contractors, Inc. in a suit brought against
them by the appellants. Cartlein argues that the circuit court erred
when it granted summary judgment to West Bend
because the court ignored the reasonable inferences to be drawn from the
affidavits West Bend submitted in opposition to
summary judgment, and that West Bend
has a duty to defend J.K. Contractors.
We conclude that affidavits submitted by Cartlein in opposition to
summary judgment failed to establish the evidentiary facts necessary to support
its claim. Consequently, we affirm the
judgment of the circuit court.
¶2 Cartlein owns an apartment complex in Menomonee
Falls, and B.G. Lein is the managing agent. Cartlein contracted with J.K. Contractors to
do roofing and ventilation work on some of the buildings. Specifically, J.K. Contractors was supposed
to remove and repair deteriorated decking and replace the decking and the
roof. After J.K. Contractors completed
the work, Cartlein discovered that the work had not been properly done, and
sued J.K. Contractors and its insurance company, West Bend.
The parties all agreed that West
Bend had not provided coverage to J.K. Contractors for
faulty workmanship. Cartlein argued,
however, that the faulty roof repair caused damage to other parts of the
buildings.
¶3 West Bend
moved for summary judgment, asserting that it had no duty to defend at all in
this case. West Bend argued that
Cartlein had not alleged that it had property damage as a result of the work
J.K. Contractors did, but rather that the damages Cartlein sought were only for
the removal and replacement of the decking as stated in the original contract. Cartlein responded, and submitted four
affidavits in opposition to the motion.
The circuit court concluded that the affidavits failed to establish that
anything J.K. Contractors did caused the other damage to the buildings. The court granted summary judgment to West Bend, and Cartlein
appeals.
¶4 Our review of the circuit court’s grant of summary judgment
is de novo, and we use the same methodology as the circuit court. M&I First Nat’l Bank v. Episcopal Home
Mgmt., Inc., 195 Wis.
2d 485, 496-97, 536 N.W.2d 175 (Ct. App. 1995).
We first examine the complaint to determine whether it
states a claim, and then we review the answer to determine whether it joins an
issue of material fact or law. If we determine that the complaint and answer
are sufficient to join issue, we examine the moving party's affidavits to
determine whether they establish a prima facie case for summary judgment. If
the movant has carried his [or her] initial burden, we then look to the
opposing party’s affidavits to determine whether there are any material facts are
in dispute that entitle the opposing party to a trial.
Schurmann v. Neau, 2001 WI App 4,
¶6, 240 Wis.
2d 719, 624 N.W.2d 157 (citations omitted).
In our review, we are limited to consideration of the pleadings and
evidentiary facts submitted in support and opposition to the motion. See Super Valu Stores, Inc. v. D-Mart Food Stores,
Inc., 146 Wis. 2d
568, 573, 431 N.W.2d 721 (Ct. App. 1988).
¶5 Cartlein argues on appeal that the circuit court misapplied
the summary judgment methodology and ignored the reasonable inferences in the
affidavits it submitted. Summary
judgment should not be granted if reasonable, but differing, inferences can be
drawn from undisputed facts. Belich
v. Szymaszek, 224 Wis.
2d 419, 425, 592 N.W.2d 254 (Ct. App. 1999).
The competing inferences, however, must be “reasonable.” Id. Further, “[a]ffidavits in support of
and in opposition to a motion for summary judgment ‘shall be made on personal
knowledge and shall set forth such evidentiary facts as would be admissible in
evidence.’” Palisades Collection LLC v. Kalal,
2010 WI App 38, ¶10, 324 Wis. 2d
180, 781 N.W.2d 503 (quoting Wis. Stat. § 802.08(3)).
¶6 Cartlein argues that the reasonable inferences from the
affidavits it submitted established that J.K. Contractors’ work led to other
damage in the buildings. After reviewing
these affidavits, we agree with the circuit court that the affidavits did not
establish a connection between the work performed by J.K. Contractors and the
damage in other parts of the buildings.
¶7 Cartlein submitted four affidavits in opposition to West Bend’s motion. The affidavit of Louis Juhlmann contains his
“Roof/Attic Investigation” report, which states that the purpose of his
investigation was to document the condition of roof decks throughout the
complex. The affidavit does not contain
Juhlmann’s opinion that other damage in the buildings was caused by J.K.
Contractors. The affidavit of Brian
Cartledge asserts that the buildings have suffered “additional damage,” and
that tenants have complained about “discoloration,” which “will require
maintenance work.” Mr. Cartledge does
not say that he observed any of this other damage, nor did he explain the basis
for a claim that the damage was caused by J.K. Contractors’ work. The affidavit of Stuart Rothman establishes
that J.K. Contractors did not properly perform the work they were hired to do. It says:
“The scope of work required for the remedial repairs is the same as the
scope of the work as described in the original contract.” The affidavit of Timothy Guilette states that
he is professional estimator, and includes his estimate of the costs of
repairs, but does not provide any connection between the alleged damages and
J.K. Contractor’s work.
¶8 Contrary to Cartlein’s assertions, none of these affidavits
contain specific evidentiary facts that lead to a reasonable inference that the
work J.K. Contractors did led to damage in other parts of the building. Because the affidavits were factually
insufficient, the circuit court properly granted summary judgment to West Bend. And because we have concluded that summary
judgment was appropriate, we need not address whether West Bend is required to defend J.K.
Contractors on the other claims.
¶9 For the reasons stated, we affirm the judgment of the circuit
court.
By the Court.—Judgment affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.