Briesemeister v. Lehner, 2005AP1237.
| Decision Date | 28 June 2006 |
| Docket Number | No. 2005AP1237.,2005AP1237. |
| Citation | 2006 WI App 140,720 N.W.2d 531 |
| Parties | Wayne A. BRIESEMEISTER and Cindy J. Briesemeister, Plaintiffs-Appellants-Cross-Respondents, v. Philip LEHNER, Donn Vaudreuil, Sally Eickelmann, John A. Lehner, Louise Vaudreuil Linneman, Robert H. Lehner, Jr. a/k/a Robert H. Lehner Jr., M.D., James Hoadley, Betsy Tishler, Michael P. Lehner, David L. Lehner, Joseph Reed Millsaps, a/k/a J. Reed Millsaps, and Nina Millsaps, Defendants-Respondents-Cross-Appellants. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendants-respondents-cross-appellants, the cause was submitted on the brief of Robert E. Hankel of Hankel, Bjelajac, Kallenbach, Lehner & Koenen, L.L.C., Racine, and J. Reed Millsaps, Northbrook, Illinois.
Before SNYDER, P.J., NETTESHEIM and ANDERSON, JJ.
¶ 1
Disappointed potential buyers Wayne and Cindy Briesemeister sued to enforce a real estate contract on a residence ultimately sold by the Lehner group1 to Joseph and Nina Millsaps. The Lehner group and the Millsaps brought counterclaims relating to the Briesemeisters' filing of a lis pendens. On competing motions for summary judgment, the trial court dismissed the Briesemeisters' claims. The counterclaims were dismissed following a trial to the court.
¶ 2 The Briesemeisters appeal from the portion of the judgment dismissing their claim for specific performance. The Millsaps and the Lehner group cross-appeal from the portion of the judgment dismissing their counterclaims. We hold that, under the terms of the contract, the Briesemeisters' delivery of notices of defect relinquished to the Lehner group, as sellers, all control over the consummation of the transaction, including whether to respond to the notices or to the Briesemeisters' later attempt to revive the deal, and whether to sell to another buyer.
¶ 3 We also hold that there is no evidence that the Briesemeisters' filing of the lis pendens was frivolous or that their attempt to elevate their contract over that of the Millsaps and the Lehner group was improper. Accordingly, we reject both the appeal and cross-appeal and affirm the judgment in full.
¶ 4 This case involves a dispute over whether the Briesemeisters or the Millsaps are the rightful buyers of the residence located on 68th Street in the City of Kenosha and offered for sale by the Lehner group.
¶ 5 In April 2003, the Briesemeisters contacted realtor Robert Wagner to assist them in their search for a house. Wagner was an independent contractor associated with The Jacobson Group/GMAC Real Estate. Wagner showed the Briesemeisters2 several houses, and in May 2003, showed them the 68th Street property. After several more viewings of that property and others, the Briesemeisters executed a WB-11 Residential Offer to Purchase on June 23, offering $271,000. After a series of counteroffers, the Briesemeisters signed the Lehner group's "WB-44 Counter-Offer" of $276,000 on July 1, 2003. The counteroffer provided that "[a]ll terms and conditions remain the same as stated in the Offer to Purchase except the following." The four exceptions listed related to the new price, a clarification about access to a closet, the closing date and a requirement that both buyers sign the counteroffer.
¶ 6 The Offer to Purchase contained a financing contingency and an inspection contingency granting the Lehner group the right to cure any defects identified. The "Right to Cure" provision of the Offer to Purchase provided:
RIGHT TO CURE: Seller (shall) (shall not) STRIKE ONE have a right to cure the defects. (Seller shall have a right to cure if no choice is indicated.) If Seller has right to cure, Seller may satisfy this contingency by: (1) delivering a written notice within 10 days of receipt of Buyer's notice of Seller's election to cure defects, (2) curing the defects in a good and workmanlike manner and (3) delivering to Buyer a written report detailing the work done no later than 3 days prior to closing. This Offer shall be null and void if Buyer makes timely delivery of the above notice and report and: (1) Seller does not have a right to cure or (2) Seller has a right to cure but: a) Seller delivers notice that Seller will not cure or b) Seller does not timely deliver the notice of election to cure. (Italics added.)
In addition, the Offer to Purchase provided, "Once received, a notice cannot be withdrawn by the Party delivering the notice without the consent of the Party receiving the notice."
¶ 7 After signing the counteroffer, the Briesemeisters invoked the inspection contingency, and hired three inspectors.
¶ 8 On July 11, Wagner delivered on the Briesemeisters' behalf two notices of defects, or "WB-41 notices," to Colleen Deininger, the Lehner group's real estate broker, listing defects to which the Briesemeisters objected and wanted the sellers to address. The first notice stated: "Buyer requests seller to cure the following issues," and listed nine defects identified during the inspections. The defects ranged in severity from a loose toilet base and outdated light fixtures in the closets, to evidence of squirrel and skunk infestation and possible asbestos in some components of the heating system. The second notice related only to the possible asbestos and advised that the Briesemeisters intended to submit samples of the boiler pipe wrap for testing. This second notice also demanded that the Lehner group agree to pay for the cost of asbestos removal or remediation in excess of $1500 or the Briesemeisters would have forty-eight hours to decide whether to consider the offer null and void. The top of WB-41 notices read in bold lettering:
¶ 9 Wagner understood that the issuance of a notice of defect required no response from the seller and could serve to terminate the offer. He also understood that a WB-40 amendment, requiring both parties' agreement, would be used if a party wanted to negotiate terms stated in the offer. Wagner told the Briesemeisters that if they gave notice of material defects, the Lehner group did not have to cure the defects, but could instead walk away, thereby "kill[ing] the deal." Thus, Wagner advised the Briesemeisters to limit the list of defects to major or safety-related items. Wayne Briesemeister did not give Wagner a green light to negotiate any items on the list, however, and Wagner believed that Wayne "felt strongly" that all of the listed defects had to be either repaired or replaced.
¶ 10 Upon receipt of the hand-delivered notices from Wagner, Deininger confirmed that Wagner understood the significance of the delivery. Deininger thought that the Briesemeisters were "nitpicking" and that the transaction would be difficult to close. Deininger faxed the notices to the Lehner group, although she did not believe they would agree to the repairs and the cost of asbestos remediation. Thus, she advised Wagner that essentially "the deal was dead." When Wagner expressed a desire to negotiate, Deininger told him, "Well, once you give a notice, as you know, the decision on how to proceed is up to the seller."
¶ 11 After delivering the two WB-41 notices, the Briesemeisters began to have second thoughts because of the language in the Offer to Purchase that "[o]nce received, a notice cannot be withdrawn by the Party delivering the notice without the consent of the Party receiving the notice." Worried they might lose the house, Wayne instructed Wagner to "get rid of those notices and remove my financing contingency." Wagner telephoned the Wisconsin Realtors Association (WRA) hotline to ask how to "get out of" the notices. Richard Staff, then WRA general counsel, told Wagner that "the only thing you could possibly do would be to draft an amendment and get the other party to agree to removing your notices." Following up on this advice, the Briesemeisters submitted an amendment dated July 17 removing the financing contingency and withdrawing the two notices, "[d]eeming the Inspection and Testing contingencies satisfied."
¶ 12 Meanwhile, back on July 6, the Lehner group's realtor had shown the 68th Street property to the Millsaps. This was in keeping with the realtor's policy to continue to market a property so as to have a backup buyer in case an inspection contingency "goes bad like a number of them do." On July 16, the Millsaps submitted an Offer to Purchase for $280,000. The Millsaps' offer also contained financing and inspection contingencies, and proposed that certain items of personal property be included.
¶ 13 Philip Lehner, the member of the Lehner group acting as its power of attorney, did not fully discuss with Deininger the Millsaps' offer vis-à-vis the Briesemeisters' amendment until July 18. This discussion produced some disagreement between the two as to how, or whether, to respond to the Briesemeisters' attempt to withdraw the notices of defects. Like Wagner, Deininger also contacted Staff, the WRA attorney. Based on that conversation and her review of the Offer to Purchase, Deininger felt confident that doing nothing in regard to the Briesemeisters' notices of defects and proposed amendment would effectively terminate the contract. On that same day, the Lehner group extended a counteroffer to the Millsaps.
¶ 14 On July 19 or 20, Deininger verbally told Wagner that the Lehner group had accepted another offer, and that the deal with the Briesemeisters "is dead, move on." The Briesemeisters immediately delivered a second amendment reiterating the withdrawal of the notices and removal of the contingencies and offering "[p]urchase...
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