COURT OF APPEALS DECISION DATED AND RELEASED October 24, 1995 |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1733
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
AMMANN AND WHITNEY,
INC.,
Plaintiff-Respondent,
v.
THOMAS ROSKOS, D.O.,
M.D.
and ANGELA HALL, D.C.,
Defendants-Appellants.
APPEAL from a judgment
of the circuit court for Milwaukee County: WILLIAM D. GARDNER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER
CURIAM. Thomas Roskos, D.O., M.D., and his wife, Angela Hall, D.C.,
appeal from a summary judgment dismissing their counterclaim for contract and
negligence damages arising from a contract with the consulting firm of Ammann
and Whitney, Inc., to inspect and provide a cost analysis of a bluff erosion
problem on Roskos and Hall's Village of Bayside property. We conclude that the trial court properly
granted summary judgment dismissing Roskos and Hall's counterclaim against
Ammann and Whitney because, based upon the summary judgment materials, it is
clear that Roskos and Hall cannot recover the relief they seek and there are no
genuine issues of material fact in dispute.
Accordingly, we affirm.
On November 8, 1989,
Roskos signed an offer to purchase a home and property fronting Lake Michigan
for $445,000. The offer to purchase was
subject to a “14 day contingency upon approval of buyers' architect and
consultation with foundation engineers with reference to retaining walls to
premises.” On November 9, the
sellers made a counteroffer of $479,000, and prescribed removal of the
architect/engineers contingency within 10 days of acceptance of the
counteroffer. Roskos accepted the
counteroffer on November 10, thereby triggering the ten-day period for removal
of the inspection contingency.
On or about
November 13, Roskos called the manager of Ammann and Whitney's Milwaukee
office about retaining the firm to inspect and report upon the condition of the
bluffs and retaining walls. The firm
agreed to prepare an inspection report; however, the date it was to have been completed
and delivered is in dispute. Ammann and
Whitney agree that for purposes of this appeal, the date of November 18, 1989
should be used as the expected delivery date.
On November 15, Roskos's
real estate agent, Leo Peters, contacted a licensed professional engineer,
William Painter, to examine the property.
Painter, who had performed work upon the property in 1976 and 1988,
immediately reported that the construction, including rock and concrete
revetments, was holding well and that there was no significant shoreline
erosion. On the next day, November 16,
without notice to Ammann and Whitney, Roskos voluntarily amended the contract
of sale to remove the inspection contingency.
The amendment, signed by Roskos and Hall, provided: “contingency of buyers
architect and consultation with foundation engineer with reference to retaining
walls on premises — Removed.” During
his deposition, Roskos testified that he understood the inspection contingency
to mean that he was relying on the engineering report on the bluff in
determining whether he wanted to purchase the property, and that the
contingency was inserted to protect Roskos under the sales agreement until he
received the engineering report. Roskos testified about his understanding of
removing the contingency:
Q. What was your
understanding?
A. That all
contingencies were waived.
Q. Meaning that
you then had a non-contingent obligation to purchase the property; is that
correct?
A. I believe
that's what is says, yeah ....
Q. Are there any
documents which followed Exhibit No. 7 [The amendment to Contract of Sale]
which reinstated any of the contingencies?
A. Not to my
recollection.
Thus, Roskos and Hall
had a non-contingent contract to purchase the home and property for
$479,000. Roskos and Hall eventually
completed the purchase of the home, and in 1993, they sold the property for
$675,000.
On November 22, 1989,
Ammann and Whitney telephoned Roskos and informed him that the report was
completed and ready for delivery.
Roskos and Hall refused to pick up the report and refused to pay Ammann
and Whitney for its services. In
December 1990, Ammann and Whitney, at Roskos's request and despite his
non-payment, forwarded the report to Roskos and Hall.
In November 1990, Ammann
and Whitney filed an action against Roskos in small claims court seeking
$312.75, plus costs, for the unpaid services.
Roskos filed his answer and counterclaim against Ammann and Whitney
seeking damages based upon breach of contract and negligence theory. Hall intervened, joining the negligence
counterclaim against Ammann and Whitney.
Upon Ammann and
Whitney's summary judgment motion, the trial court concluded that Roskos and
Hall failed to establish that they had suffered any damages resulting from
Ammann and Whitney's alleged failure to provide timely the inspection
report. Thus, the trial court granted
Ammann and Whitney's motion for summary judgment, dismissing Roskos and Hall's
counterclaim. Ammann and Whitney later
voluntarily dismissed its original small claims action against Roskos. Roskos and Hall appeal from the summary
judgment dismissing their counterclaim.
This court reviews a
grant of summary judgment de novo.
Burkes v. Klauser, 185 Wis.2d 309, 327, 517 N.W.2d 503,
511 (1994). Summary judgment is
governed by § 802.08, Stats.,
and the rules for review have been frequently addressed. See, e.g., Green Spring Farms v.
Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 821 (1987). In reviewing a grant of summary judgment,
this court first examines the complaint to determine whether a claim for relief
has been stated. C.L. v. Olson,
143 Wis.2d 701, 706, 422 N.W.2d 614, 615 (1988). If the pleadings meet this initial test, our inquiry shifts to
the moving party's affidavits or other proof to determine whether a prima
facie case for summary judgment has been presented. Grams v. Boss, 97 Wis.2d 332,
338, 294 N.W.2d 473, 476‑77 (1980).
If the moving party has indeed made a prima facie case for
summary judgment, we then examine the affidavits and other proof of the
opposing party to discern whether there exists disputed material facts
entitling the opposing party to a trial.
Id. After our
review of the amended counterclaim and the summary judgment materials, we agree
with the trial court that Roskos and Hall have failed to show that they
suffered any damages from Ammann and Whitney's alleged untimely inspection
report.
In the second amended
counterclaim, Roskos seeks damages for breach of contract, and Roskos and Hall
seek damages for negligence. Under both
theories, the damage that they allegedly suffered was the alleged difference in
the offered price of the property, minus the reduction of the $100,000 to
$200,000 that the inspection report stated would have to be spent for erosion
remedial measures. Essentially, Roskos
and Hall alleged that had they timely received the inspection report, they
would have demanded that the sellers of the property reduce the purchase price
of the property in order to account for the additional expenses.
The underlying
documents—the offer to purchase, the counteroffer and the contract—are
unambiguous matters of record. Further,
it is undisputed that Roskos and Hall removed the contingency agreement from
the property sales contract on November 16, thereby committing themselves to
the purchase price of $479,000, at a minimum two days before Ammann and Whitney
was expected to complete the inspection report on November 18. As such, the allegedly untimely report could
not have caused the damages alleged in Roskos and Hall's counterclaim; that is,
the reduction in the purchase price based upon their knowledge of the $100,000
to $200,000 for remedial measures estimated in Ammann and Whitney's
report. By the terms of their amended
sales contract for the home and property, Roskos and Hall were locked in at the
price of $479,000, once they removed the contingency from that contract on
November 16. Thus, even if Ammann and
Whitney had completed and turned over its inspection report on November 18, it
was too late for Roskos and Hall to reduce the purchase price of the home. Accordingly, as a matter of law, under both
negligence and contract theory, Roskos and Hall could not recover the damages
they seek in their amended counterclaim against Ammann and Whitney; thus, the
causes of action are deficient. The
trial court properly granted summary judgment dismissing the counterclaim. See Green Spring Farms,
136 Wis.2d at 315, 401 N.W.2d at 821.
Further, because our resolution on this issue is dispositive, we need
not address any other alleged errors raised by Roskos and Hall. See Gross v. Hoffman,
227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (only dispositive issue need be
addressed).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.