Friends of Kenwood v. Green, 00-0680.

• Citation: 619 N.W.2d 271,2000 WI App 217,239 Wis.2d 78
• Decision Date: 19 September 2000
• Docket Number: No. 00-0680.,00-0680.
• Parties: FRIENDS OF KENWOOD, Nola Cross, Barbara Dietrich, Eva Donat, Charlotte Howard, Marni Kaiser, Andrew Kane, Carole Kane, Kenneth Klein, Perry Margoles, Michael Mosesson and Steve Tilton, Plaintiffs-Appellants, v. Michael GREEN and Max Rasansky, Defendants, The BOARD OF TRUSTEES OF CONGREGATION EMANU-EL B'NE JESHURUN and Congregation Emanu-El B'Ne Jeshurun, Defendants-Respondents.
• Court: Court of Appeals of Wisconsin

239 Wis.2d 78

2000 WI App 217

619 N.W.2d 271

FRIENDS OF KENWOOD, Nola Cross, Barbara Dietrich, Eva Donat, Charlotte Howard, Marni Kaiser, Andrew Kane, Carole Kane, Kenneth Klein, Perry Margoles, Michael Mosesson and Steve Tilton, Plaintiffs-Appellants,¹ v. Michael GREEN and Max Rasansky, Defendants, The BOARD OF TRUSTEES OF CONGREGATION EMANU-EL B'NE JESHURUN and Congregation Emanu-El B'Ne Jeshurun, Defendants-Respondents.

No. 00-0680.

Court of Appeals of Wisconsin.

Submitted on briefs July 6, 2000.

Decided September 19, 2000.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Robert E. Sutton, Milwaukee.

On behalf of the defendants-respondents, the cause was submitted on the brief of Robert H. Friebert, S. Todd Farris and Brian C. Randall of Friebert, Finerty & St. John, S.C., Milwaukee.

Before Wedemeyer, P.J., Curley and Vergeront, JJ.

¶ 1. WEDEMEYER, P.J.

The Friends of Kenwood, et al., (hereinafter "Kenwood")² appeal from a final order dismissing their complaint against The Board of Trustees of Congregation Emanu-El B'Ne Jeshurun and Congregation Emanu-El B'Ne Jeshurun (hereinafter "Congregation"). The complaint alleged that the Board and the Congregation violated various by-laws, engaged in deceit, misrepresentation, and breached their fiduciary duty to Kenwood, which "create[d] a promissory estoppel which unjustly enriched ... [the] Congregation."

¶ 2. Kenwood claims that the trial court erred when it granted the motion to dismiss for failure to state a claim against the Congregation and the Board.³ Kenwood argues that the Congregation and the Board are proper, indispensable parties to this action. Because the complaint fails to state a claim for relief, we affirm.

I. BACKGROUND

¶ 3. The Congregation oversees a Jewish synagogue, which has been located at 2419 East Kenwood Boulevard in the City of Milwaukee since 1927. It is an incorporated religious society existing under the laws of the State of Wisconsin. The Congregation consists of approximately 1,300 member families, and is governed by a twenty-one-person Board of elected volunteer members. Following a study in 1993, the Board concluded that Congregation members had demonstrated a definite trend of establishing residences in the suburbs north of the City of Milwaukee, away from the Kenwood facility. The development of this trend posed a potential problem for membership participation and, in turn, membership retention.

¶ 4. Addressing this population shift of its Congregation members, the Board decided that a second facility for worship, teaching, and cultural enhancement was needed. In March 1994, they purchased a site in River Hills, the northern most suburb in Milwaukee County. A fundraising drive was commenced. When the drive did not reach its intended goal, a scaled-down version of the originally planned facility, excluding a place of worship, was built on a ten-acre tract. In keeping with this amended purpose, the denominated Family Worship and Learning Center on the Joseph and Vera Zilber Campus was dedicated on October 19, 1997.

¶ 5. In late November 1997, the president of the Board, Michael Green, informally approached the University of Wisconsin-Milwaukee Fine Arts Department and asked if it had any interest in purchasing the Congregation's Kenwood facility. It did and, in September 1998, the Board approved the sale of the Kenwood facility to the University of Wisconsin-Milwaukee Foundation (UWMF). UWMF submitted an offer to purchase the facility for $4.5 million. The Board advised the Congregation of this development. ¶ 6. On October 26, 1998, the Board called a special informational meeting of the Congregation to discuss the offer of purchase that had been received. The notice stated:

[M]embership will be advised as to the content of the offer, the efforts made by the Board ... in looking at alternatives to selling, and the financial implications of our accepting or not accepting this offer.

After a short presentation, members will have an opportunity to tell the Board ... their concerns, to ask questions and to discuss the pros and cons and their impact on our Congregation's future. The task of making such decisions is vested in the Board ... according to our by-laws.

¶ 7. At the meeting, a number of members objected to the Board's decision to sell the Kenwood facility without allowing the entire membership to vote on the issue. Members were advised that the by-laws permitted the Board to make such a decision. The Board subsequently approved the sale.

¶ 8. The Board later learned, however, that the title insurance company would not ensure clear title if the sale was not approved by the Congregation. As a result, a special meeting of the Congregation was held on February 1, 1999, to vote on the sale. The sale was approved by a two-to-one majority vote with over 600 members voting. Kenwood complains that the vote was unreasonable because members' names appeared on the ballot and members had to travel to the River Hills facility to cast the vote. Kenwood asserts that it was unreasonable to require a vote without assuring anonymity and to require the members to travel all the way to the new facility in order to cast their vote. ¶ 9. Kenwood filed a complaint against the Board, the Congregation, Green and Max Rasansky (a Board member), in an attempt to block the sale. The complaint alleged that the defendants engaged in deceit, misrepresentation, a breach of fiduciary duty, and that the defendants violated the by-laws of the Congregation. Essentially, the complaint contended that Kenwood was deceived into accepting the River Hills construction project because of the assurances given that the original Temple would not be abandoned. The defendants filed a motion to dismiss, alleging that the complaint failed to state a claim for relief. The trial court granted the motion as to the Board and the Congregation on the basis that the allegations lacked particularity as to which Board members and Congregation members made the misrepresentations and to which Kenwood members such misrepresentations were made. Kenwood now appeals.

II. ANALYSIS

¶ 10. This is an appeal from an order dismissing a complaint for failure to state a claim. The plaintiffs in this case are twelve members of the Congregation who are in good standing. They are described as the "Friends of Kenwood." Their amended complaint consists of twenty-seven pages, thirty-five factual averments, fifty-two appended exhibits, and three causes of action. The complaint concludes with a request for: (1) an injunction and declaratory relief voiding the contract of sale of the Kenwood Temple; (2) an order removing the Board of the Congregation; (3) an order granting reimbursement of all contributions and canceling all pledges made for the building of the River Hills facility; and (4) an order for costs, disbursements, and reasonable attorney's fees. In summary, Kenwood seeks declaratory and injunctive relief voiding the sales contract with UWMF based on violations of the Congregation's by-laws, misrepresentation, and/or breach of fiduciary duty. We conclude that the complaint fails to state a claim for relief under any of these claims.

¶ 11. A motion to dismiss a complaint for failure to state a claim tests the legal sufficiency of the complaint. See Watts v. Watts, 137 Wis. 2d 506, 512, 405 N.W.2d 303 (1987)

. Whether the complaint states a claim for relief is a question of law that we review independently. See id. For purposes of review, we accept the facts stated in the complaint, along with all the reasonable inferences that may be drawn from them, as true. See id. Unless it seems certain that no relief could be granted under any set of facts that the plaintiff could prove, dismissal of the complaint is improper. See id. When a document is attached to the complaint and made a part thereof, it must be considered a part of the pleading, and may be resorted to in determining the sufficiency of the pleadings. See Jennaro v. Jennaro, 52 Wis. 2d 405, 411, 190 N.W.2d 164 (1971). When the allegations of a pleading are inconsistent with the terms of a document attached as an exhibit, the terms of the document fairly construed, prevail over averments differing in the complaint. See Graue Mill Dev. Corp. v. Colonial Bank and Trust Co. of Chicago, 927 F.2d 988, 991 (7th Cir. 1991).

A. Misrepresentation Claim.

¶ 12. Kenwood claims that the complaint states a misrepresentation claim against the Board and the Congregation based on the fact that "temple officials, acting in concert, induced the membership of the Congregation" to approve and fund the River Hills facility, "by repeatedly promising that the Congregation would maintain" the Kenwood Temple. Kenwood asserts that Green and Rasansky secretly solicited the sale of the Kenwood Temple, advised the Board what they were doing, and convinced the Board to keep these actions secret. Kenwood also claims that Green and Rasansky "together with the Board" secretly negotiated the sale of the Kenwood Temple, withheld material financial information from the membership, and only held the Congregational vote because the title insurance company required it. Kenwood then asserts that the Congregation was unjustly enriched as a result of these actions.

¶ 13. To succeed in a fraudulent misrepresentation claim, the representation must be of fact and made by the defendant, the representation must be false, and the claimant must have believed the representation was true and relied on it to his or her damage. See Foss v. Madison Twentieth Century Theaters, Inc., 203 Wis. 2d 210, 218, 551 N.W.2d 862 (Ct. App. 1996)

. A complaint pleading negligent or intentional misrepresentation must allege that the defendant misrepresented a fact to the plaintiff or to a third person with the intent that it would be communicated to or influence the plaintiff. See Rendler v. Markos, 154 Wis. 2d 420, 429, 453 N.W.2d 202 (Ct. App. 1990)....