O'Neil v. Patenaude

• Decision Date: 16 December 1997
• Docket Number: No. 97-0780,97-0780
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Pamela O'NEIL, Plaintiff-Appellant, v. Helen PATENAUDE, d/b/a River Realty, Defendant-Respondent, Lionel Crevier and Janice Crevier, Intervening Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 900

573 N.W.2d 900

216 Wis.2d 115

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

Pamela O'NEIL, Plaintiff-Appellant, v. Helen PATENAUDE, d/b/a River Realty, Defendant-Respondent Lionel Crevier and Janice Crevier, Intervening Defendants-Respondents.

No. 97-0780.

Court of Appeals of Wisconsin.

Dec. 16, 1997.

APPEAL from a judgment of the circuit court for Oconto County: LARRY JESKE, Judge. Affirmed in part; reversed in part and cause remanded with directions.

Before CANE, P.J., and MYSE and HOOVER, JJ.

PER CURIAM.

This case arises out of a real estate transaction. Pamela O'Neil, the buyer, appeals a judgment dismissing her misrepresentation claims against the seller's agent, Helen Patenaude, d/b/a River Realty. The judgment also requires O'Neil to reconvey to Lionel and Janice Crevier, the sellers, a five-acre parcel out of the twenty acres O'Neil purchased in the transaction.

O'Neil argues that (1) the trial court erroneously denied her summary judgment dismissing the Creviers' claim; (2) the evidence of misrepresentations was overwhelming; (3) Patenaude violated the Wisconsin Administrative Code by failing to perform required inspections; (4) the trial court erroneously relied on documents not produced during the course of discovery; (5) credible evidence supports findings of fraud; and (6) she is entitled to postjudgment relief based upon newly-discovered evidence, fraud and other misconduct. We conclude that the trial court erroneously denied her motion for summary judgment to dismiss the Creviers' claim. We reject her remaining arguments, however, and conclude that the trial court properly dismissed her misrepresentation claims against Patenaude. Accordingly, we affirm in part, reverse in part and remand with directions to dismiss the Creviers' claim against O'Neil.

In 1993, O'Neil entered into an agreement to purchase some vacant land from the Creviers. The August 9 offer to purchase agreement described the acreage to be sold as "15 Acres, more or less." ¹ On September 17, 1993, the parties executed a land contract drafted by Lionel Crevier. Lionel derived the legal description from a 1984 survey, which described an approximately twenty-acre parcel using a lengthy, complicated metes and bounds description. The Creviers do not suggest they were unaware that the legal description described the entire twenty-acre parcel. Subsequently, the Creviers filed a pro se small claims complaint seeking return of approximately five acres. O'Neil initiated a suit against the Creviers' real estate agent, Patenaude, alleging various misrepresentations regarding the parcel's size, road access and septic system suitability. The suits were joined together.

The trial court concluded that when read together, the offer to purchase and the land contract created an ambiguity with respect to the number of acres to be sold, and considered extrinsic evidence to determine the parties' intent. The trial court found that the parties bargained for fifteen acres and ordered O'Neil to deed an approximately five-acre parcel to the Creviers.

With respect to O'Neil's misrepresentation claims, the court resolved credibility issues in favor of Patenaude and concluded that the evidence was insufficient to support findings of misrepresentation. The court also concluded that the evidence was insufficient to support O'Neil's claims that her signature was forged on various documents. ² Therefore, the court dismissed O'Neil's misrepresentation claims relating to boundaries, road access and soil conditions.

O'Neil filed a motion for relief from judgment and submitted expert testimony that her signature had been forged on certain documents. The trial court concluded that the evidence was not newly discovered and denied relief. O'Neil appeals.

O'Neil argues that the trial court erroneously denied her motion for summary judgment dismissing the Creviers' claim. She contends that because the land contract is unambiguous and the Creviers never pled nor demonstrated an action in fraud or mutual mistake, extrinsic evidence may not be introduced to contradict its express terms. We conclude that the land contract is unambiguous, that there is no proof of fraud or mutual mistake, and that extrinsic evidence may not be used to vary its terms. Therefore, the trial court erred when it considered the offer to purchase along with the land contract to create an ambiguity in the land contract.

An appeal from the denial of summary judgment raises an issue of law we review de novo by applying the same standards employed by the trial court. Brownelli v. McCaughtry, 182 Wis.2d 367, 372, 514 N.W.2d 48, 49 (Ct.App.1994). We first examine the pleadings to determine whether they state a claim and a disputed issue of material fact. Id. If they do, we examine the moving party's affidavits and supporting documents to determine whether that party has established a prima facie case. Id. If so, we then look at the opposing affidavits and other documents to determine whether there are any material facts in dispute that would entitle the opposing party to a trial. Id. at 372-73, 514 N.W.2d at 49-50. "[A]n adverse party may not rest upon the mere allegations or denials of the pleadings but the adverse party's response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial." Section 802.08(3), STATS.

Here, the Creviers filed a small claims complaint stating that they sold fifteen acres to O'Neil but that she claims to own twenty, and that O'Neil's attorney coerced them into closing. Attached to the complaint was correspondence from O'Neil's attorney and a mediator setting out the dispute in more detail. Based upon our liberal rules of pleading, the Creviers' complaint may be fairly interpreted as seeking reformation of the transaction. See § 802.02(6), STATS., ("All pleadings shall be so construed as to do substantial justice.").

O'Neil moved for summary judgment based upon the land contract and her affidavit stating that after the execution of the offer to purchase and land contract, a new survey indicated that the parcel she purchased contained close to twenty acres. Her affidavit also stated that at no time did the Creviers mention that they intended to retain five acres of the property.

In response, the Creviers submitted their affidavit that they accepted O'Neil's offer to purchase fifteen acres. They attached a copy of the August 9 offer to purchase signed by the Creviers and O'Neil. Their affidavit also stated that on September 17, 1993, they "entered into a land contract conveying only 15 acres" and "upon the satisfaction of the land contract Pamela O'Neil was to have a survey done so there would be a description for the 15 acres." In addition, the Creviers attached the offer to purchase and addenda, a copy of the land contract, transfer tax return, and an appraisal, along with a copy of portions of O'Neil's deposition, stating that she thought she was purchasing "[d]arn close to 15 acres." Also submitted was correspondence relating to mediation of the dispute. The Creviers did not, however, state that O'Neil had agreed to reconvey five acres. Nor did they produce any evidentiary facts supporting their allegation that O'Neil's attorney coerced them into closing.

We conclude the Creviers failed to raise a disputed issue of mutual fact. "When two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing." FDIC v. First Mortg. Investors, 76 Wis.2d 151, 156 n. 6, 250 N.W.2d 362, 365 n. 6 (1977) (citing 3 CORBIN ON CONTRACTS § 573 (1960)). The parol evidence rule works to prevent the offer to purchase agreement, and other documents, such as the Creviers' affidavit, which stated that the conveyance was of fifteen acres, to be used to vary the unambiguous terms of the land contract.

However, before applying the parol evidence rule to prohibit extrinsic evidence, the court must determine whether the parties intended the writing to be a final, total or partial integrated agreement, or whether they intended any prior agreement to be part of their total agreement: "Parol evidence is always admissible with respect to the issue of integration, that is, parol evidence is admissible to show whether the parties intended to assent to the writing as the final and complete (or partial) statement of their agreement." FDIC, 76 Wis.2d at 158, 250 N.W.2d at 366.

In Bunbury v. Krauss, 41 Wis.2d 522, 164 N.W.2d 473 (1969), our supreme court adopted Corbin's analysis to determine if the particular writing is an integration of the contract:

3 Corbin, pp. 359, 360, sec. 573, supra, states that on the following issues evidence, oral or written, may be submitted:

"(1) Have the parties made a contract? (2) Is that contract void or voidable because of illegality, fraud, mistake, or any other reason? (3) Did the parties assent to a particular writing as the complete and accurate 'integration' of that contract?

"In determining these issues, or any one of them, there is no 'parol evidence rule' to be applied. On these issues, no relevant evidence, whether parol or otherwise, is excluded. No written document is sufficient, standing alone, to determine any one of them, however long and detailed it may be, however formal, and however many may be the seals and signatures and assertions. No one of these issues can be determined by the mere inspection of the written document."

Id. at 528-29, 164 N.W.2d at 475-76 (quoting 3 CORBIN, supra, at 357-60) (emphasis added). Whether the parties assented to the written contract...