Hilkert v. Zimmer, 76-697

• Citation: 90 Wis.2d 340,280 N.W.2d 116
• Decision Date: 29 June 1979
• Docket Number: No. 76-697,76-697
• Parties: Rudolph HILKERT and Irene Hilkert, Plaintiffs-Respondents, v. Michael S. ZIMMER, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 116

280 N.W.2d 116

90 Wis.2d 340

Rudolph HILKERT and Irene Hilkert, Plaintiffs-Respondents, v. Michael S. ZIMMER, Defendant-Appellant.

No. 76-697.

Supreme Court of Wisconsin.

Submitted on Briefs May 2, 1979.

Decided June 29, 1979.

Lawrence J. Jost, John W. Daniels, Jr., and Quarles & Brady, Milwaukee, for appellant.

Hurth, Husting & Morgan, Cedarburg, for respondents.

HEFFERNAN, Justice.

The trial court granted summary judgment on the claim of the plaintiffs, Rudolph and Irene Hilkert, that defendant, Michael S. Zimmer, had breached the terms of a land contract. While the contract in its totality is rather complex, the essence of the dispute concerns whether Zimmer breached his agreement when he did not pay off the mortgage on property conveyed to him by the Hilkerts.

It is alleged by the Hilkerts that, according to their written contract, Zimmer agreed to take the property which was subject to an underlying first mortgage in the amount of $163,741 and would "assume and agree to pay, and obtain release from mortgagee." The Hilkerts allege that, because Zimmer breached his contract to pay the mortgage, the mortgagee foreclosed and the Hilkerts thereby became liable for a deficiency judgment obtained by the mortgagee.

The Hilkerts' claim in this action is for damages for breach of contract in the amount of the deficiency judgment, plus interest. The Hilkerts moved for summary judgment.

In a supporting affidavit, Rudolph Hilkert stated that the written contract constituted the entire agreement between the plaintiffs and the defendant and that no oral amendments had been made.

Zimmer submitted counter-affidavits in opposition to the motion for summary judgment. He stated that the written contract did not contain the complete agreement of the parties and that the contract had been orally modified prior to the closing of the real estate transaction. The basic averment of Zimmer's affidavit is that the parties orally modified the contract to provide that he need not assume and pay the mortgage, but rather that he was merely obligated to take the property subject to the mortgage.

It is apparent that, on the face of the affidavits, an issue of fact is presented. Ordinarily, when affidavits show facts to be in dispute, summary judgment should be denied. The statute governing summary judgments provides:

"The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any Material fact and that the moving party is entitled to a judgment as a matter of law." Sec. 802.08(2), Stats. (Emphasis supplied.)

The basic standard, then, is not merely whether irrelevant facts are in dispute but rather whether material facts are in dispute. Wright v. Hasley, 86 Wis.2d 572, 273 N.W.2d 319 (1979); Lawver v. Boling, 71 Wis.2d 408, 413, 238 N.W.2d 514 (1976).

The trial judge acknowledged that whether there had been an oral modification posed a disputed issue of fact in the affidavits. He, in effect, concluded, however, that the factual dispute was irrelevant and immaterial, because the agreement was one for the purchase and sale of land and, accordingly, subject to the statute of frauds. He reasoned that it was immaterial that there was any subsequent dispute in respect to whether the contract had been orally modified, because a modification, as a matter of law, could only have been made in writing.

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