Radford v. J.J.B. Enterprises, Ltd.
| Decision Date | 01 May 1991 |
| Docket Number | No. 90-0994,90-0994 |
| Citation | 472 N.W.2d 790,163 Wis.2d 534 |
| Parties | Curtis D. RADFORD and C. Scott Radford, Plaintiffs-Respondents, v. J.J.B. ENTERPRISES, LTD., Milwaukee Marine, Inc., and James J. Bisenius, Jr., Defendants-Third-Party Plaintiffs-Appellants, d v. BOAT WORKS, INC., a Wisconsin corporation, and American States Insurance Company, a foreign corporation, Third-Party Defendants. |
| Court | Wisconsin Court of Appeals |
Philip A. Munroe of Di Renzo & Bomier, Neenah, for plaintiffs-respondents.
Before NETTESHEIM, P.J., and BROWN and ANDERSON, JJ.
In this case, a jury found that the defendants intentionally misrepresented the soundness of a boat's hull during a sales transaction, thus violating sec. 100.18, Stats. It awarded compensatory and punitive damages. The trial court then awarded attorney's fees. The defendants appeal.
We conclude that the evidence was sufficient to support the jury's verdict of intentional misrepresentation. We hold that punitive damages and attorney's fees can be awarded when the basis is joint and several liability. Additionally, we hold that the prevailing party in the appeal of a case for intentional misrepresentation is entitled to appellate attorney's fees. We also conclude that the trial court correctly refused to submit a special verdict to the jury concerning the comparative negligence of the third-party defendant because the tort of intentional misrepresentation excludes a defense of contributory negligence. Therefore, we affirm the judgment and order of the trial court, but we remand to the circuit court for a determination of reasonable appellate attorney's fees.
In March 1986, Curtis and C. Scott Radford bought a 1954 wooden cabin cruiser from J.J.B. Enterprises, Ltd. (J.J.B.), a retail boat business at Milwaukee Marine, Inc. (Milwaukee Marine). The Radfords hired Milwaukee Marine to restore the boat.
The Radfords were looking for a used boat without dry rot. Scott Fischer, an employee of J.J.B., showed them the boat and told them all the dry rot was removed from the hull. During the purchase negotiations, the Radfords met with James Bisenius, Jr., who told them the hull of the boat was sound. Bisenius once owned the boat. He was also the president and sole owner of J.J.B. and the president and fifty percent shareholder of Milwaukee Marine.
The Radfords purchased the boat for $28,500. The Yacht Purchase Agreement contained a crossed-out disclaimer of warranties and promised delivery of the boat on July 4, 1986. When the defendants failed to meet the delivery date and charged the Radfords a winter storage fee, the Radfords entered into a new purchase agreement to include the storage fee in the price of the boat and to specify a new delivery date. The new agreement listed the purchase price as $30,397.56, contained a disclaimer of warranties and promised delivery on April 1, 1987. Both purchase agreements contained the following provision: "[v]essel is to be completely restored and in the water and running subject to the approval of the buyers...."
Besides the purchase price paid to J.J.B., the Radfords also paid Milwaukee Marine $10,000 for the boat restoration. Additionally, they spent $30,262.54 for personalized and custom-designed additions to the boat.
Before delivery, the Radfords had the boat appraised by a marine surveyor. He stated the boat's value at $45,000 but cautioned that there were several areas of dry rot still to be repaired.
Delivery of the boat was first attempted in July 1987 in Milwaukee. With the Radfords' approval, the boat was outfitted with oversized propellers because computer-designed propellers were still on order. On the boat's first outing, the propeller shafts broke. They were repaired in Milwaukee and the boat was delivered to the Radfords in August 1987 at Sturgeon Bay, Wisconsin.
On the trip from Sturgeon Bay to Oshkosh, the boat windows leaked when it rained, the starboard shaft became unattached from the engine, and the port engine vibrated badly. Subsequently, the Radfords were able to take only two short trips on the boat. On the first trip, the port engine vibrated badly. On the second, the port shaft came undone from its engine. Until the boat was removed from the water, the bilge pump ran constantly to deal with leaks of large amounts of water. The pump could not keep up with the leaks and the boat eventually settled to the channel bottom in its slip at the marina of Boat Works, Inc. The water came up to the floor boards in the back cabin. In November 1987, Boat Works removed the water and put the boat in storage.
The Radfords wrote several letters to Bisenius outlining the problems and asking him to send workmen to Oshkosh to correct them. In December 1987, the Radfords informed Bisenius that they would initiate a lawsuit unless Milwaukee Marine bought the boat back for $50,000.
The Radfords' suit was an action for intentional misrepresentation against all three defendants and an action for breach of warranty against J.J.B. The Radfords alleged that at the time of sale, the defendants claimed all the dry rot was removed from the hull and the hull was in a sound and seaworthy condition.
The defendants denied these allegations and filed a third-party complaint against Boat Works and its insurer, alleging negligence in the maintenance and storage of the boat at Boat Works in Oshkosh. Before trial, the Radfords signed a Pierringer release with Boat Works. See Pierringer v. Hoger, 21 Wis.2d 182, 124 N.W.2d 106 (1963). The Radfords thereby relieved Boat Works of all liability and agreed to indemnify Boat Works for any claims made by others.
The jury's liability verdict found that all three defendants intentionally misrepresented the soundness of the boat's hull to the Radfords. The jury also found that the two corporate defendants, but not Bisenius, claimed all the dry rot was removed from the hull. The jury further found that the boat could be fully restored to a safe and seaworthy condition.
The damages found by the jury in the misrepresentation cause of action were $14,602.44 for benefit of the bargain, $30,440.98 for consequential damages and $6000 for punitive damages. The damage verdict for breach of warranty was $38,000. The trial court entered a judgment for $51,043.42 on the misrepresentation verdict, plus attorney's fees of $41,569.67, litigation costs of $5,792.57 and interest. The court denied the defendants' motion for a default judgment against Boat Works and for contribution from the Radfords.
The defendants challenge the sufficiency of the evidence in several areas. 1 They argue that there was insufficient evidence to prove intentional misrepresentation, to establish that Bisenius had an economic interest in the transaction, or to support the damage awards for misrepresentation and breach of warranty.
We will not upset a jury verdict if there is any credible evidence to support it. Fehring v. Republic Ins. Co., 118 Wis.2d 299, 305, 347 N.W.2d 595, 598 (1984). This is even more true when the trial court gives its explicit approval to the verdict by considering and denying postverdict motions. See id. The credibility of the witnesses and the weight afforded their individual testimony are left to the province of the jury. Id. Where more than one reasonable inference may be drawn from the evidence adduced at trial, this court must accept the inference that was drawn by the jury. Id. at 305-06, 347 N.W.2d at 598. It is this court's duty to search for credible evidence to sustain the jury's verdict, and we are not to search the record for evidence to sustain a verdict the jury could have reached but did not. Id. at 306, 347 N.W.2d at 598.
The defendants claim the evidence was insufficient to prove that their statements to the Radfords regarding the boat's hull were misrepresentations. The defendants contend the representations were statements of opinion and "sales puffery," and were promises of future performance rather than statements of fact. The defendants also argue that the Radfords negligently relied on these statements.
The jury found that all three defendants represented the boat as having a sound hull. Yet, the boat leaked from the time the Radfords received it, and it eventually settled to the channel bottom at Boat Works marina. Thus, there is credible evidence to support the conclusion that all three defendants made a material misrepresentation relating to the fundamental ability of the boat to be operated safely. A representation is material if a reasonable person would attach importance to the existence of the matter or if the maker knows or has reason to know that the recipient regards it as important. See Restatement (Second) of Torts sec. 538 (1977). It is hard to imagine a representation more important to a prospective boat owner than soundness of the boat's hull. Bisenius' participation in this fundamental misrepresentation is not mitigated by the jury's finding that Bisenius did not also represent the hull as having all the dry rot removed.
The defendants' representations were not mere opinion, "sales puffery" or promise of future performance. They were affirmative representations of actual facts. They spoke to the condition of the boat as it existed during the purchase negotiations between the parties prior to the signing of the original purchase agreement. The hull of the boat was not like the white liquor clarifier in Consolidated Papers, Inc. v. Dorr-Oliver, Inc., 153 Wis.2d 589, 594, 451 N.W.2d 456, 459 (Ct.App.1989), where the sales negotiations concerned the future manufacture of the clarifier and involved statements about the clarifier's quality. In contrast, the sales statements about the boat's hull concerned the fundamental...
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