COURT OF APPEALS DECISION DATED AND RELEASED June
14, 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. 94-1925
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
GEORGE
CHRISTON and
G.
CHRISTON, INC.,
a
Wisconsin corporation,
Plaintiffs-Appellants,
v.
THRESHERMEN'S
MUTUAL INSURANCE
COMPANY,
a Wisconsin corporation,
Defendant,
NOVAK'S
INC.,
a
Wisconsin corporation,
and
JERINA PANDELI,
Defendants-Third Party
Plaintiffs-Respondents,
v.
HARVEY
PLUCINSKI,
ROBERT
VAN RIPER,
d/b/a
VAN RIPER WRECKING,
ABC
INSURANCE COMPANY,
WOODLAND
CONSULTANTS, INC.,
f/k/a
ALMARCO ENGINEERING,
LARRY
D. FOWLER and
XYZ
INSURANCE COMPANY,
Third Party Defendants.
APPEAL
from a judgment of the circuit court for Walworth County: JAMES L. CARLSON, Judge. Affirmed.
Before
Anderson, P.J., Brown and Nettesheim, JJ.
PER
CURIAM. George Christon and G.
Christon, Inc. ("Christon") appeal from a summary judgment dismissing
their claims against Threshermen's Mutual Insurance Company, Novak's Inc. and
Jerina Pandeli. Because we conclude
that summary judgment was appropriate, we affirm.
On
review, we apply the summary judgment methodology set forth in § 802.08, Stats., in the same manner as the trial
court. Green Spring Farms v.
Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). Where, as here, the pleadings state a claim
for relief, Loveridge v. Chartier, 161 Wis.2d 150, 167, 468
N.W.2d 146, 150 (1991), we determine whether any material issues of fact exist
by examining the parties' submissions in support of and in opposition to
summary judgment, see id.
In the absence of material issues of fact, summary judgment is
appropriate. See Rach v.
Kleiber, 123 Wis.2d 473, 478, 367 N.W.2d 824, 827 (Ct. App. 1985). Where cross-motions for summary judgment
have been filed, we review each motion individually to determine whether it
establishes the existence of any material facts. City of Edgerton v. General Casualty Co., 172
Wis.2d 518, 529, 493 N.W.2d 768, 772 (Ct. App. 1992), aff'd in part, rev'd
in part on other grounds, 184 Wis.2d 750, 517 N.W.2d 463 (1994), cert.
denied, 514 U.S. ___, 115 S. Ct. 1360 (1995).
In
May 1986, Christon purchased Novak's Restaurant and the real estate upon which
it operated from Jerina Pandeli and Novak's Inc.[1] In July 1992, Christon brought suit against
Novak's Inc. and Pandeli after the restaurant building began settling due to
structural defects. Christon's breach
of contract and strict responsibility misrepresentation claims were premised on
allegations that Pandeli and her late husband had been the general contractors
on the building, that the building was negligently constructed upon sand
and the debris of the previous restaurant building which had been destroyed by
fire, and that Pandeli had represented to Christon that the building was defect
free.[2] The defendants denied the material
allegations in Christon's complaint.[3]
Pandeli
sought summary judgment on the ground that she could not be held liable to
Christon for the condition of the building because she was not a
builder-vendor, a prerequisite for liability under Bagnowski v. Preway,
Inc., 138 Wis.2d 241, 405 N.W.2d 746 (Ct. App. 1987). She also argued that Christon's contract
claim was barred under § 893.43, Stats.,
because it was not brought within six years after the claim accrued. Christon filed a cross-motion for summary
judgment on the basis that Pandeli was the general contractor for the
construction of the building and the building was not constructed in compliance
with regulations regarding the soil conditions necessary for proper
weight-bearing capacity.
The trial court granted
summary judgment to Pandeli because Christon's contract claim was time barred,
Pandeli was not liable to Christon for the allegedly negligent construction as
a matter of law, and Christon had not established that Pandeli had knowledge of
the building's defects. The trial court
observed "[t]he mere fact that Novak Pandeli signed the building permit
application as ‘contractor' is insufficient itself to raise a triable
issue in light of the overwhelming unrebutted evidence that defendants
hired professionals to raze the burned building and construct a new one." We agree with the trial court.
In
order for Pandeli to be liable to Christon for the allegedly defective
condition of the building, she must have been the builder-vendor, that is, an
entity in the business of building on property owned by it and selling the
constructed premises and the land to the public. See Bagnowski, 138 Wis.2d at 247‑48,
405 N.W.2d at 749‑50.[4] Pandeli's summary judgment motion stated
that she was not in the business of building commercial properties for sale,
that the building had been built to house the restaurant operation, and that
her late husband, who was not in the construction business, had hired the
builder and made decisions regarding the building. Christon countered this assertion by reiterating that Pandeli
owned the property and built a building upon it.[5]
The
summary judgment record does not indicate that Pandeli did anything more than
supervise the construction. This
activity does not catapult her into the role of a builder-vendor, a
prerequisite for liability under Bagnowski. In the absence of a material issue of fact
on this point, the trial court properly granted summary judgment to
Pandeli. The trial court also properly
denied Christon's cross-motion for summary judgment because it did not
demonstrate the existence of a material fact relating to the central
issue: whether Pandeli was a
builder-vendor as required by Bagnowski.
Christon's
strict responsibility misrepresentation claim also fails under Bagnowski. Misrepresentation is a claim in tort. Grube v. Daun, 173 Wis.2d 30,
51, 496 N.W.2d 106, 113 (Ct. App. 1992).
Bagnowski precludes liability in tort under the facts of
this case. See also Moore
v. Brown, 170 Wis.2d 100, 486 N.W.2d 584 (Ct. App. 1992).
Bagnowski also disposes of Christon's breach of contract claim. Christon alleged a failure of consideration
because the building was negligently constructed. However, this claim is premised upon Pandeli's liability for the
allegedly negligent construction. We
have already held that she is not liable under Bagnowski and the
facts of this case. Therefore, we need
not reach the trial court's conclusion that the claim was barred by the
applicable statute of limitations.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] Pandeli owned
the real estate and was president and sole shareholder of Novak's Inc. The real estate was transferred to her in
1980 after her husband, Novak, died.
[2] Christon also
brought a bad faith claim against his insurer, Threshermen's Mutual, claiming
coverage for the progressive collapse of the building due to conditions not
disclosed by Pandeli.
[3] Novak's and Pandeli
brought a third-party action against:
(1) Harvey Plucinski, a participant in the construction; (2) Robert Van
Riper, d/b/a Van Riper Wrecking, who performed demolition and excavation at the
site; (3) Van Riper's insurer; (4) Woodland Consultants, Inc., which provided
design and engineering services in the construction of the building; and (5)
Woodland's insurer. These parties are
not respondents on appeal.