Kanack v. Kremski

• Decision Date: 13 May 1980
• Docket Number: No. 77-189,77-189
• Parties: Robert S. KANACK and Mary Beth Kanack, Plaintiffs-Appellants, v. Myron C. KREMSKI and Judith M. Kremski, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 864

291 N.W.2d 864

96 Wis.2d 426

Robert S. KANACK and Mary Beth Kanack, Plaintiffs-Appellants, v. Myron C. KREMSKI and Judith M. Kremski, Defendants-Respondents.

No. 77-189.

Supreme Court of Wisconsin.

Submitted on Briefs Oct. 10, 1979.

Decided May 13, 1980.

Franks & Pikofsky, S. C., Milwaukee, on brief, for plaintiffs-appellants.

Krawczyk & Duginski, Milwaukee, on brief, for defendants-respondents.

DAY, Justice.

This is an appeal from a judgment following an order which granted the defendants-respondents' (hereinafter sellers) motion for summary judgment and dismissed the plaintiffs-appellants' (hereinafter buyers) complaint for intentional or negligent misrepresentation in the sale of a house.

The buyers commenced this action to recover damages they allegedly sustained as a result of a "serious water leakage problem" in the basement of a house they purchased from the sellers. Their offer to purchase was accepted on January 28, 1976, and the closing was held on March 31, 1976, at which time the buyers obtained possession.

The buyers served and filed their complaint, and after the sellers answered and took depositions, the sellers moved for summary judgment. The trial court granted the buyers' motion to file an amended complaint and adjourned the motion for summary judgment to a later date for a hearing.

The buyers then filed an amended complaint in which they alleged that after they took possession of the property, they discovered a "serious water leakage problem in the basement" and that the sellers, by virtue of their occupancy prior to the sale ". . . knew or should have known of said water leakage problem." The buyers further alleged that the water leakage condition in the basement was not readily observable or discoverable by them, but rather was within the "special knowledge" of the sellers and that the condition of the basement affected the value and desirability of the property.

Furthermore, the buyers in their amended complaint alleged that although the sellers knew and should have known of the conditions, they ". . . failed and neglected to disclose said conditions" to buyers and that they did so with the purpose of inducing the buyers to enter into the offer to purchase and consummate the sale.

The sellers filed an answer to the amended complaint denying all the material allegations, and then filed new affidavits in support of their motion for summary judgment. In these new affidavits, the sellers denied that there ever had been a serious water problem in the basement of the house during the period in which they occupied the premises and prior to the sale to the buyers. The sellers stated that during the entire period they occupied the house, they had full and complete use and enjoyment of the basement and were not inhibited in any way by any water problem. Furthermore, they stated that there was, to the best of their knowledge, no serious problem or defect in the premises and that there was nothing they could have disclosed to the buyers with respect to any such alleged defect or problem because none existed. The sellers also asserted that they had invested substantial sums of money in the premises in remodeling the basement and that they would not have done so had there been any water problem. According to the sellers, these improvements were completed more than six months prior to the sale.

The sellers' attorney also submitted an affidavit in support of the motion for summary judgment in which he asserted that there was no evidence of any kind to establish that the condition complained of by the buyers existed prior to the sale of the house. Included in this affidavit was a portion of the deposition of the buyer, Mary Beth Kanack, wherein she admitted that she knew of no person who could testify that the water leakage condition in the basement existed prior to the sale.

The buyers submitted an affidavit in opposition to the motion for summary judgment in which they stated that the sellers at no time prior to the sale indicated to them that there was any problem with water leakage and water accumulation in the basement. They further asserted that it was only after they took occupancy of the property that they discovered the "serious water problem" and that in their inspection of the property prior to sale, they were unable to readily observe such defects due to the nature of the defects and were unaware of such defects at the time of the closing. The buyers in their affidavit also stated that the sellers knew of the defects and failed to disclose them to the buyers.

After a hearing on the motion for summary judgment, the trial court, without opinion, granted the sellers' motion and judgment was subsequently entered dismissing the buyers' amended complaint.

On this appeal, the buyers contend that their amended complaint set forth a cause of action for misrepresentation by the failure of the sellers to advise them of material facts known to the sellers and undiscoverable by the buyers. The buyers argue that there are material issues of fact in dispute in this case which can only be resolved by a trial on the merits, and therefore the motion for summary judgment should have been denied.

This case is governed by the new Rules of Civil Procedure and sec. 802.08(2), Stats., with respect to motions for summary judgment. As this court in Wright v. Hasley, 86 Wis.2d 572, 578-79, 273 N.W.2d 319 (1979), recognized, the new rules require a more "exacting appellate scrutiny" of the trial court's determination of a motion for summary judgment. This court can no longer accord the trial court wide latitude in deciding to grant or deny summary judgment. Id. at 578, 273 N.W.2d 319.

The initial question on this appeal is whether the complaint states a cause of action. This court in Marshall v. Miles, 54 Wis.2d 155, 160, 194 N.W.2d 630, 633 (1972), said: "The summary judgment procedure initially requires an examination of the pleadings to determine whether a cause of action has been stated and whether material issues of fact are presented. . . ." See also, Coleman v. Outboard Marine Corp., 92 Wis.2d 565, 570, 285 N.W.2d 631, 633 (1979). If the complaint states a cause of action, or a claim upon which relief can be granted, there is a prescribed methodology to be followed in determining whether summary judgment is appropriate. See Kraemer Bros. v. United States Fire Ins. Co., 89 Wis.2d 555, 565-67, 278 N.W.2d 857 (1979).

Thus, the first issue we must consider on this appeal is whether the amended complaint states a claim for intentional misrepresentation by the sellers' failure to disclose to the buyers the existence of the "serious water leakage problem" in the basement prior to the sale.

In the recent case of Ollerman v. O'Rourke Co., Inc., 94 Wis.2d 17, 288 N.W.2d 95 (1980), this court recognized that the traditional rule in Wisconsin is:

". . . that in an action for intentional misrepresentation the seller of real estate, dealing at arm's length with the buyer, has no duty to disclose information to the buyer and therefore has no liability in an action for intentional misrepresentation for failure to disclose." Id. at 29, 288 N.W.2d at 101, citing Kamuchey v. Trzesniewski, 8 Wis.2d 94, 99, 98 N.W.2d 403 (1959); Southard v. Occidental Life Ins. Co., 31 Wis.2d 351, 142 N.W.2d 844 (1966); Guyer v. Cities Service Oil Co., 440 F.Supp. 630, 632 (E.D.Wis.1977).

This traditional rule appears to be recognized by the majority of jurisdictions in this country. See Annotation, "Vendor's Concealment of Flooding Danger," 90 A.L.R.3rd 568.

The cases recognize that the vendor of property may be liable to the purchaser for intentional misrepresentation when there is an actual misrepresentation, see Palmershein v. Hertel, 179 Wis. 291, 191 N.W. 567 (1923), or when the seller has a duty to disclose facts concerning the condition of the property known to him but not known to the buyer. Ollerman v. O'Rourke Co., Inc., supra, 94 Wis.2d at 39, 288 N.W.2d 95.

In Palmershein v. Hertel, supra, the vendor had represented that the water on the cellar floor came from washtubs which were then being used, whereas in fact water continually seeped into the cellar and caused the whole house to be damp. On appeal, this court rejected the seller's argument that the false representations were mere expressions of opinion which the vendor had the right to make. This court recognized that these were specific representations as to existing facts, and were therefore not mere expressions of opinion. This court stated 179 Wis. at p. 298, 191 N.W. at p. 570:

"The seller may hold his own opinion as to value of his property, and may express these opinions quite freely. But when in making a sale he makes false statements as to material physical facts which form an element in value, he is on dangerous ground, and we have little difficulty in holding that the representations alleged were not mere expressions of opinion."

This court also noted that the general rule was that buyers were required to exercise reasonable diligence and could not close their eyes to means of information readily accessible to ascertain the facts. Quoting from Farr v. Peterson, 91 Wis. 182, 187-88, 64 N.W. 863, 865 (1895), this court stated:

"The law requires men, in their dealing with each other, to exercise proper vigilance, and apply their attention to those particulars which may be supposed to be within the reach of their observation and judgment, and not to close their eyes to the means of information accessible to them; but the seller must not use any art or practice any artifice to conceal defects, or make any representations or do any act to throw the purchaser off his guard, or to divert his eye, or to prevent his use of any present means of information."

In Ollerman v. O'Rourke Co., Inc., supra, this court recognized a cause of action for intentional misrepresentation in favor of a noncommercial purchaser against a subdivider vendor...