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COURT OF APPEALS DECISION DATED AND RELEASED June 8, 1995 |
NOTICE |
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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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0551-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
THOMAS P. REITZ,
and SHERRY A. REITZ,
Plaintiffs-Respondents,
v.
ACRES OF AMERICA,
INC.,
STEVE LOEHRKE,
and JUDY NOWAK,
Defendants-Appellants.
APPEAL from a judgment
of the circuit court for Waupaca County:
PHILIP M. KIRK, Judge. Affirmed.
Before Gartzke, P.J.,
Sundby and Vergeront, JJ.
PER
CURIAM. Acres of America, Inc., Steve Loehrke and
Judy Nowak appeal from a judgment finding them negligent and ordering them to
pay the plaintiffs $2,490.[1] The issue is whether the trial court set the
proper damages. We conclude it did. We affirm.
Plaintiffs Thomas P.
Reitz and Sherry A. Reitz alleged that Acres of America had a listing contract
to sell vacant real estate owned by Valda J. Quant. Loehrke was president of Acres of America and Nowak was the real
estate agent who showed the property to the plaintiffs. The property for sale was lots 30 through 33
in a certain subdivision. The
plaintiffs alleged the defendants were negligent in showing and describing the
property, in that the property shown actually included parts of lots 34 and 35,
which Quant did not own. The plaintiffs
purchased the property and commenced construction of a residence, partly on
lots 34 and 35, which they did not own.
Plaintiffs later purchased those lots for $4,150.
The case was tried to
the court. We have been provided with a
transcript of only the court's decision, not the testimony. Therefore, we must rely on the trial court's
findings to state the facts, which do not appear to be in dispute. When showing the property, Nowak stated that
she believed the property lines of the lots for sale were near two power
poles. In fact, parts of lots 34 and 35
also lie between the poles. The trial
court found that Nowak did not actually know where the property lines were and
that she was negligent in making her representation.[2]
The parties agree on
appeal that the proper measure of damages is the "out-of-pocket" rule
provided in Wis J I—Civil 2406,
which sets damages as the difference, if any, between the market value of the
property at the time of purchase and the amount of money that the plaintiff
paid for the property. In addition to a
recovery of general damages under the out-of-pocket rule, a plaintiff can also
recover consequential damages if they can be proved with reasonable certainty,
do not duplicate a recovery already gained under the general measure of
damages, and were proximately caused by the misrepresentation. Gyldenvand v. Schroeder, 90
Wis.2d 690, 698, 280 N.W.2d 235, 239 (1979).
Consequential damages may include the "expense of adapting other
property for use with the property plaintiff has been induced to buy from the
defendant." Comment to Wis J I—Civil 2406. While the plaintiffs could not recover the
price of the additional lots under the general measure of damages stated above,
we conclude that those expenses meet the criteria for recovery of consequential
damages.
The defendants argue
that the plaintiffs paid for six lots and own six lots, and have therefore
suffered no damage. They argue that
although the plaintiffs were forced to pay extra money to purchase extra lots,
they received extra property equivalent in value to the extra money paid. This argument is contrary to the record
presented on appeal. The plaintiffs did
not receive "extra property" when they purchased lots 34 and 35. Rather, they received the remainder of the
property between the poles which the defendants had represented was for sale in
the first place. In other words, while
the plaintiffs now own two more lots than they originally expected, they own no
more acreage than expected.
The defendants also
argue that if the plaintiffs have suffered damage, it should be calculated by
subtracting the value of two of the lots originally purchased from the purchase
price of the two lots purchased later.
Otherwise, they argue, the plaintiffs will be overcompensated because
they will have paid for four lots, but will own six. This argument is essentially a restatement of the first, and we
reject it for the same reason.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.