Goldberg v. DiMaggio

• Decision Date: 16 July 2015
• Docket Number: No. 2014AP1117.,2014AP1117.
• Parties: Alan GOLDBERG, Individually and as Trustee of the Goldberg Family Trust U/D/O 5/20/98 and Wendy A. Goldberg, Individually and as Trustee of the Goldberg Family Trust U/D/O 5/20/98, Plaintiffs–Appellants, v. Michael DiMAGGIO and Candace S. DiMaggio, Defendants, Pella Corporation, Defendant–Respondent.
• Court: Wisconsin Court of Appeals

364 Wis.2d 757

869 N.W.2d 170 (Table)

Alan GOLDBERG, Individually and as Trustee of the Goldberg Family Trust U/D/O 5/20/98 and Wendy A. Goldberg, Individually and as Trustee of the Goldberg Family Trust U/D/O 5/20/98, Plaintiffs–Appellants

v.Michael DiMAGGIO and Candace S. DiMaggio, Defendants

Pella Corporation, Defendant–Respondent.

No. 2014AP1117.

Court of Appeals of Wisconsin.

July 16, 2015.

Opinion

¶ 1 PER CURIAM.

Alan Goldberg, Wendy Goldberg, and the Goldberg Family Trust (collectively, “Goldberg”) appeal a circuit court order that granted Pella Corporation's motion to dismiss Goldberg's breach of warranty claim against Pella at the close of the plaintiffs' case. Goldberg contends that the court erred by dismissing Goldberg's breach of warranty claim against Pella because: (1) Pella's warranty established coverage for Goldberg's claim based on condensation on Pella windows and doors in Goldberg's home; (2) Pella's admission that the condensation was not consistent with the proper functioning of its windows and doors established a prima facie case of breach of warranty; (3) there was no evidence to establish that an exclusion to the warranty coverage applied; and (4) dismissal was inconsistent with the court's decision denying a motion to dismiss Goldberg's claim against the sellers of the house for failing to disclose the condensation as a defect. We reject these contentions and affirm the circuit court's order dismissing Goldberg's claim against Pella.

¶ 2 In March 2010, Goldberg filed a warranty claim with Pella. Goldberg claimed that the Pella windows and doors in Goldberg's home were exhibiting condensation that resulted in icing and frosting. Pella denied the claim.

¶ 3 In April 2011, Goldberg filed this action against Pella for breach of warranty. Goldberg also included claims against Michael and Candace DiMaggio (collectively, “DiMaggio”), based on DiMaggio failing to disclose the condensation problem prior to Goldberg purchasing the home from DiMaggio.

¶ 4 At the close of Goldberg's case at a bench trial, Pella and DiMaggio both moved to dismiss Goldberg's claims against them. The circuit court granted Pella's motion to dismiss, finding that Goldberg had the burden to show that the condensation was caused by a defect in the material or workmanship of Pella's products¹ and that Goldberg had not met that burden. The court denied DiMaggio's motion to dismiss, finding that the condensation was evidence of a “defect” as defined in the real estate condition report, that is, a condition that would have a significant adverse effect on the value of the property. Goldberg appeals the order granting Pella's motion to dismiss Goldberg's breach of warranty claim.

¶ 5 After the plaintiff has presented his or her evidence in a trial to the court, the defendant may move to dismiss “on the ground that upon the facts and the law the plaintiff has shown no right to relief.” Wis. Stat. § 805.17(1) (2013–14).² When deciding a motion to dismiss under § 805.17, the circuit court is not required to view the evidence in the light most favorable to the plaintiff. Meas v. Young, 138 Wis.2d 89, 95 n. 4, 405 N.W.2d 697 (Ct.App.1987). Rather, the court may make factual findings and dismiss the case if it concludes that the plaintiff has failed to establish a prima facie case. Household Utilities, Inc. v. Andrews Co., 71 Wis.2d 17, 24–25, 236 N.W.2d 663 (1976) ; § 805.17(1).

¶ 6 Here, the question is whether Goldberg established a prima facie case for breach of warranty, a question of law that we decide independently. See Madison Reprographics, Inc. v. Cook's Reprographics, Inc., 203 Wis.2d 226, 238, 552 N.W.2d 440 (Ct.App.1996) (we review de novo whether the facts of a case meet a particular legal standard). We uphold the circuit court's underlying factual findings under the clearly erroneous standard. Wis. Stat. § 805.17(2) ; Madison Reprographics, Inc., 203 Wis.2d at 238, 552 N.W.2d 440.

¶ 7 Goldberg argues first that Pella's warranty covers condensation issues on Pella windows and doors even if the condensation is not due to a “defect” in the windows and doors themselves. Goldberg acknowledges that the relevant section of Pella's warranty covers “a defect in materials or workmanship of your Pella product not covered by the glass warranty.” However, Goldberg points to language elsewhere in the warranty materials to argue that the warranty coverage is not limited to “defects.”

¶ 8 Goldberg argues that, read as a whole, Pella's warranty also provides coverage for “problems,” “malfunctions,” and “failures.” Goldberg cites the section titled “The Pella Pledge,” which states that, “should you ever have any problems with your products, this warranty represents our commitment to address and fairly resolve them”; the “Limitations” section, which excludes specified “problems ” as well as consequential damages based on “a product defect or malfunction ”; and the glass warranty, which covers a “failure of the glass.” (Emphasis added.) Goldberg argues that the term “defect” in Pella's warranty is thus ambiguous, and must be construed against Pella, citing Maryland Arms Ltd. P'ship v. Connell, 2010 WI 64, ¶ 23, 326 Wis.2d 300, 786 N.W.2d 15. Goldberg argues that, construing the term “defect” against Pella, condensation issues fall within Pella's warranty coverage for “problems,” “failures,” and “malfunctions.”

¶ 9 Additionally, Goldberg argues that the warranty's exclusion of coverage for “problems caused by high humidity (condensation and frost)” necessarily means that there is coverage for condensation and frost that is not caused by high humidity, even in the absence of a “defect.” Goldberg asserts that, because the limitation excludes coverage for condensation and frost caused by high humidity, but does not expressly exclude coverage for condensation and frost not caused by high humidity, the warranty must cover all cases of condensation that are not caused by high humidity. See Anderson v. American Family Mut. Ins. Co., 178 Wis.2d 835, 840, 505 N.W.2d 433 (Ct.App.1993) ( “[S]pecific mention of one or more matters is considered to exclude other matters of the same nature not expressly mentioned.”). Goldberg then asserts that, if a “defect” were required for the warranty to apply, the “high humidity” exclusion would be rendered meaningless. In other words, Goldberg argues that, if a “defect” were necessary to trigger coverage, that “defect” would always be the cause of the condensation; thus, there would be no need to exclude “problems caused by high humidity.” See Maryland Arms, 326 Wis.2d 300, ¶ 45, 786 N.W.2d 15 (“[C]ontract language should be construed to give meaning to every word, ‘avoiding constructions which render portions of a contract meaningless, inexplicable or mere surplusage.’ ” (quoted source omitted)). We are...