COURT OF APPEALS DECISION DATED AND RELEASED September 30, 1996 |
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. 95-2615
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
DONALD HALL and DENNIS
HALL,
Plaintiffs-Appellants,
v.
AL NOWAK TRUCKING,
INC.,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Wood County:
LEWIS MURACH, Judge. Affirmed.
Before Dykman, P.J.,
Vergeront, J., and Robert D. Sundby, Reserve Judge.
PER
CURIAM. Donald and Dennis Hall appeal from a summary judgment
dismissing their complaint against Al Nowak Trucking, Inc. The issue is whether the proofs submitted on
summary judgment reasonably allow an inference that would allow the Halls to
recover on their breach of contract claim.
We conclude that no such inference is available, and therefore affirm.
In July 1991, Donald
applied to the Town of Sigel Zoning Committee for a conditional use permit to
dig a pond on the Halls' property. Al
Nowak, the owner of Al Nowak Trucking, was present when the committee granted
Donald a permit, valid until the end of 1992.
In June 1992, Donald and Nowak entered into the following written
contract:
AGREEMENT
June 12, 1992
Between:Donald Hall, 4331
Finup Lane, Wisconsin Rapids, WI
and
Al Nowak Trucking, Inc., Wisconsin Rapids, WI
Subject:Excavation of
material to construct pond for the above mentioned.
Price:Any materials taken
from site will be considered Al Nowak property in exchange for the construction
of the pond. Any topsoil left over will
be birmed [sic] or spread on slopes of pond.
Haul
Road &
Fences:Al
Nowak Trucking, Inc. will maintain roads.
Materials needed to upgrade roads other than what Nowak traffic has
damaged, will be landowner's responsibility.
If fencing is required, landowner will provide and Nowak will maintain.
Length of
Agreement:Five
years with first option on a five year renewal. It is understood that Nowak will be the only contractor on the
site.
In
June 1993, Donald asked the zoning committee to extend the permit until the end
of 1993. With Nowak again present, the committee
approved the extension. When it became
apparent to Donald later on in 1993 that Nowak would not complete the pond that
year, he chose not to request another extension. Instead, he hired another firm to finish the job and commenced
this action, alleging that Nowak breached the contract.
Nowak moved for summary
judgment, relying solely on the "Length of Agreement" clause of the
contract, providing for a five-year term with an option for a five-year
renewal. In his opposing affidavit,
Donald averred that the purpose of the five-year term was to permit Nowak to
store the excavated soil on the Hall property for that period of time. The time for constructing the pond was
governed by a separate contract, according to Donald, in which Nowak had agreed
to meet the permit expiration date in December 1993. After the trial court denied summary judgment, Nowak asked for
reconsideration based on subsequent testimony by Donald taken on deposition. After reviewing that testimony, the trial
court reversed its earlier ruling and granted summary judgment. This appeal ensued.
If the material facts
are undisputed or the only reasonable inferences that may be drawn from them
favor one party, the issue is properly resolved on summary judgment. Heck & Paetow Claims Serv., Inc.
v. Heck, 93 Wis.2d 349, 356, 286 N.W.2d 831, 834 (1980). We decide summary judgment in the same
manner as the trial court and without deference to its decision. In re Cherokee Park Plat, 113
Wis.2d 112, 115-16, 334 N.W.2d 580, 582-83 (Ct. App. 1983).
The trial court properly
granted Nowak's summary judgment motion.
Because the parties' written contract did not expressly state that it
incorporated all terms of the agreement, parole evidence was admissible to show
the existence of a supplemental contract, providing additional terms. See In re Spring Valley Meats, Inc.,
94 Wis.2d 600, 607-08, 288 N.W.2d 852, 855 (1980). However, Donald's deposition testimony established that there was
no supplemental agreement governing the time for completing the pond. Donald testified that an agreement existed
because Nowak attended the zoning committee meetings and knew he only had until
December 1993 to complete the pond. But
Donald has no proof that Nowak affirmatively agreed to meet that deadline, even
though he knew of it.
[T]he
conduct of the parties must be such as to disclose sufficiently the fact that
the minds of the parties have met, or have been in accord, on all the terms of
the agreement .... One party cannot
make an agreement; both parties must, by their words or actions, assent to the
agreement.
Wis J I—Civil 3010. Without evidence that Nowak manifested an
agreement to complete the pond by the permit expiration date, the Halls cannot
prevail on their claim that Nowak breached their contract.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.