Meyer v. The Laser Vision Institute, No. 2005AP1233.

CourtCourt of Appeals of Wisconsin
Writing for the CourtAnderson
Citation714 N.W.2d 223,2006 WI App 70
Decision Date01 March 2006
Docket NumberNo. 2005AP1233.
PartiesFaye MEYER, on her own behalf and on behalf of all others similarly situated in the state of Wisconsin, Plaintiff-Appellant,<SMALL><SUP>†</SUP></SMALL> v. THE LASER VISION INSTITUTE, LLC, d/b/a The Lasik Vision Institute, a Florida Corporation, Defendant-Respondent.
714 N.W.2d 223
2006 WI App 70
Faye MEYER, on her own behalf and on behalf of all others similarly situated in the state of Wisconsin, Plaintiff-Appellant,
v.
THE LASER VISION INSTITUTE, LLC, d/b/a The Lasik Vision Institute, a Florida Corporation, Defendant-Respondent.
No. 2005AP1233.
Court of Appeals of Wisconsin.
Submitted on Briefs January 6, 2006.
Opinion Filed March 1, 2006.

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COPYRIGHT MATERIAL OMITTED

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On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Mark A. Peterson and M. Susan Maloney of McNally, Maloney & Peterson, S.C., Milwaukee, and John A. Yanchunis and Jill H. Bowman of James, Hoyer, Newcomer & Smiljanich, P.A., Tampa, Florida.

On behalf of the defendant-respondent, the cause was submitted on the brief of Christopher C. Mohrman of Michael Best & Friedrich LLP, Milwaukee.

Before Brown, NETTESHEIM and ANDERSON, JJ.

¶ 1 ANDERSON, J.


Faye Meyer, on her own behalf and on behalf of all others similarly situated in the state of Wisconsin, appeals from an order dismissing the complaint against The Laser Vision Institute, LLC, d/b/a The Lasik Vision Institute, A Florida Corporation (LVI). In her complaint, Meyer alleged that LVI's newspaper advertisement purporting to offer the Lasik procedure for $299 per eye and a free consultation with a patient counselor contained untrue, deceptive or misleading statements of fact in violation of WIS. STAT. § 100.18(1) (2003-04),1 and was a plan or scheme, the purpose of which was not to sell the procedure at the advertised price, contrary to § 100.18(9). Meyer also raised claims of unjust enrichment and money had and received. Because Meyer cannot prevail on any of these claims, even if the facts as alleged in the complaint and the reasonable

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inferences drawn from those facts are taken as true, we affirm the order granting LVI's motion to dismiss Meyer's complaint.2

STANDARD OF REVIEW

¶ 2 The scope of our review drives our analysis in this case. We therefore begin with a consideration of the appropriate standard of review.

¶ 3 The issue before this court is whether Meyer's complaint states a claim upon which relief can be granted. A motion to dismiss a complaint for failure to state a claim tests the legal sufficiency of the complaint. Wausau Tile, Inc. v. County Concrete Corp., 226 Wis.2d 235, 245, 593 N.W.2d 445 (1999). The facts set forth in the complaint must be taken as true and the complaint dismissed only if it appears certain that no relief can be granted under any set of facts the plaintiffs might prove in support of their allegations. Northridge Co. v. W.R. Grace & Co., 162 Wis.2d 918, 923, 471 N.W.2d 179 (1991). The reviewing court must construe the facts set forth in the complaint and all reasonable inferences that may be drawn from those facts in favor of stating a claim. Id. at 923-24, 471 N.W.2d 179. Whether a complaint states a claim for relief is a question of law which this court reviews de novo. Id. at 923, 471 N.W.2d 179.

COMPLAINT

¶ 4 On December 15, 2004, Meyer filed an amended complaint against LVI alleging that around November 2003 she saw LVI's advertisement in the Sheboygan Press newspaper. The advertisement offered the Lasik procedure for $299 per eye and a free consultation. Meyer called the toll-free telephone number and scheduled her free consultation. Meyer met with a patient counselor. The counselor was a commissioned sales representative with no medical background. The counselor was not licensed under WIS. STAT. ch. 448. The counselor advised Meyer that she could not have the advertised rate of $299 per eye. The counselor sold Meyer the Lasik procedure for $2600 for both eyes and additional products for approximately $200. Meyer paid a nonrefundable deposit.

¶ 5 According to the complaint, all of this information was conveyed to Meyer prior to her "examination by any doctor." Meyer was not permitted to see a doctor until after she agreed to the procedure and made the nonrefundable down payment. Dr. Ivan Ireland performed her procedure in early January 2005. At that time, LVI charged Meyer for the balance of the cost of the procedure.

¶ 6 Based upon these allegations, Meyer prayed for relief under WIS. STAT. § 100.18(1) and (9) and the equitable doctrines of unjust enrichment and money had and received. We first assess the legal sufficiency of the claims based upon each of the statutory violations in turn and then combine our examination of the legal sufficiency of the claims based upon unjust enrichment and money had and received.

WIS. STAT. § 100.18(1)

¶ 7 Meyer's complaint alleged that the advertisement in the Sheboygan Press newspaper was untrue, deceptive or misleading in violation of WIS. STAT. § 100.18(1).3 Two elements form the basis

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for a § 100.18(1) violation: There must be an advertisement or announcement, and such advertisement must contain a statement that is "untrue, deceptive or misleading." State v. American TV & Appliance of Madison, Inc., 146 Wis.2d 292, 300, 430 N.W.2d 709 (1988).

¶ 8 Meyer correctly observes that an advertisement can violate WIS. STAT. § 100.18(1) without making "untrue" statements as long as those statements can be properly characterized as deceptive or misleading. Citing cases from other jurisdictions, Meyer points out that implied representations in an advertisement may also render it deceptive or misleading. See FTC v. Wilcox, 926 F.Supp. 1091, 1098 (S.D.Fla.1995). Meyer argues that two statements in LVI's advertisement were expressly or impliedly deceptive or misleading.

¶ 9 Meyer first contends that the advertisement's claim that a customer will get a free consultation with a counselor was deceptive or misleading. According to Meyer, this is because the term "counselor" suggests a licensed medical professional qualified to give medical advice and, unbeknownst to her, the counselor was actually a commissioned sales representative with an incentive to sell the highest-priced procedures.

¶ 10 We are not persuaded that the advertisement's promise of a free consultation with a counselor was misleading or deceptive. First, Meyer's complaint does not allege that the advertisement describes the role of the counselor. Meyer's complaint does not contend that the advertisement states that the counselor is a licensed medical professional or that the counselor is not a commissioned sales representative.

¶ 11 Further, the fact that the counselor is a commissioned sales representative who has an incentive to sell higher priced procedures and additional products also does not render the statements deceptive or misleading. In American TV, our supreme court discussed the relationship between profit motives and WIS. STAT. § 100.18. See American TV, 146 Wis.2d at 304, 430 N.W.2d 709. Although American TV was a "puffery" case in a retail store context, the principles the court articulated concerning that relationship apply with equal force to other § 100.18(1) and (9) claims involving commissioned sales representatives.

¶ 12 There, American TV & Appliance of Madison, Inc., ran a radio advertisement stating that it was having a "clearance" and "closeout" sale on the "finest" and "best" washers and dryers and that these appliances would be available for only $499. American TV, 146 Wis.2d at 295-96,

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430 N.W.2d 709. The state cried foul and filed a complaint alleging violations of WIS. STAT. § 100.18(1) and (9). American TV, 146 Wis.2d at 297-98, 430 N.W.2d 709. The complaint alleged that there were incentives for American salespersons that worked on commission to try to sell more expensive washer and dryer models and that, in fact, American stocked and sold more of those models. Id. at 295, 304, 430 N.W.2d 709. Our supreme court concluded that the profit motive of the salespersons did not so easily transfer into a cause of action under § 100.18(9): "All profit motivated retailers recognize these incentives and hope to sell their more profitable items, if possible. Section [100.18(9)(a)], cannot be interpreted to make unlawful such an incentive." American TV, 146 Wis.2d at 304, 430 N.W.2d 709. This principle applies to § 100.18(1) claims as well. Applying the principle to the matter at hand, we conclude that the fact that the LVI counselors were commissioned sales representatives who had a motive to sell the higher-priced procedures does not, without more, translate into a viable § 100.18(1) claim.

¶ 13 Meyer next alleges that the advertisement's claim that Lasik was available for $299 per eye was deceptive and misleading because that low-cost procedure was not generally available. However, the fact that not every consumer responding to the advertisement would qualify for the low-cost procedure does not mean that LVI violated WIS. STAT. § 100.18(1). Meyer failed to allege in her complaint that the low-cost procedure is unavailable to those who want it and qualify for it. Meyer also failed to allege that she qualified for the low-cost procedure and LVI wrongfully refused to perform it. She did not claim that the counselor disparaged the low-cost procedure to her;4 rather, she claimed only that the counselor informed her that she "could not have" the low-cost procedure and...

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25 practice notes
  • Bank v. Guar. Financial, No. 2010AP729.
    • United States
    • Court of Appeals of Wisconsin
    • 5 Mayo 2011
    ...facts all reasonable inferences favoring[334 Wis.2d 181] a claim. Meyer v. Laser Vision Inst., LLC, 2006 WI App 70, ¶ 3, 290 Wis.2d 764, 714 N.W.2d 223. “A complaint should not be dismissed for failure to state a claim unless it appears certain that no relief can be granted under any set of......
  • Murillo v. Kohl's Corp., Case No. 16-CV-196-JPS
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • 24 Junio 2016
    ...example, forms a contract between the buyer and the seller. Meyer v. The Laser Vision Inst ., 2006 WI App 70, ¶ 22, 290 Wis.2d 764, 779, 714 N.W.2d 223, 230 (holding that the parties' purchase transactions formed a "valid and enforceable [contract], thereby barring [the plaintiff's] equitab......
  • Le v. Kohls Dep't Stores, Inc., Case No. 15–CV–1171–JPS
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • 8 Febrero 2016
    ...example, forms a contract between the buyer and the seller. Meyer v. The Laser Vision Inst. , 2006 WI App 70, ¶ 22, 290 Wis.2d 764, 779, 714 N.W.2d 223, 230 (holding that the parties' purchase transactions formed a “valid and enforceable [contract], thereby barring [the plaintiff's] equitab......
  • Grad v. Associated Bank, Appeal No. 2010AP1461
    • United States
    • Court of Appeals of Wisconsin
    • 7 Junio 2011
    ...all reasonable inferences from those facts in favor of stating a claim. Meyer v. Laser Vision Inst., 2006 WI App 70, ¶3, 290 Wis. 2d 764, 714 N.W.2d 223. A complaint should be dismissed for failure to state a claim only when it is quite clear there are no conditions under which the plaintif......
  • Request a trial to view additional results
25 cases
  • Bank v. Guar. Financial, No. 2010AP729.
    • United States
    • Court of Appeals of Wisconsin
    • 5 Mayo 2011
    ...facts all reasonable inferences favoring[334 Wis.2d 181] a claim. Meyer v. Laser Vision Inst., LLC, 2006 WI App 70, ¶ 3, 290 Wis.2d 764, 714 N.W.2d 223. “A complaint should not be dismissed for failure to state a claim unless it appears certain that no relief can be granted under any set of......
  • Murillo v. Kohl's Corp., Case No. 16-CV-196-JPS
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • 24 Junio 2016
    ...example, forms a contract between the buyer and the seller. Meyer v. The Laser Vision Inst ., 2006 WI App 70, ¶ 22, 290 Wis.2d 764, 779, 714 N.W.2d 223, 230 (holding that the parties' purchase transactions formed a "valid and enforceable [contract], thereby barring [the plaintiff's] equitab......
  • Le v. Kohls Dep't Stores, Inc., Case No. 15–CV–1171–JPS
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • 8 Febrero 2016
    ...example, forms a contract between the buyer and the seller. Meyer v. The Laser Vision Inst. , 2006 WI App 70, ¶ 22, 290 Wis.2d 764, 779, 714 N.W.2d 223, 230 (holding that the parties' purchase transactions formed a “valid and enforceable [contract], thereby barring [the plaintiff's] equitab......
  • Grad v. Associated Bank, Appeal No. 2010AP1461
    • United States
    • Court of Appeals of Wisconsin
    • 7 Junio 2011
    ...all reasonable inferences from those facts in favor of stating a claim. Meyer v. Laser Vision Inst., 2006 WI App 70, ¶3, 290 Wis. 2d 764, 714 N.W.2d 223. A complaint should be dismissed for failure to state a claim only when it is quite clear there are no conditions under which the plaintif......
  • Request a trial to view additional results

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