Selzer v. Brunsell Brothers, Ltd.

• Decision Date: 29 August 2002
• Docket Number: No. 01-2625.,01-2625.
• Citation: 257 Wis.2d 809,652 N.W.2d 806,2002 WI App 232
• Court: Wisconsin Court of Appeals
• Parties: Peter M. SELZER, Plaintiff-Appellant, v. BRUNSELL BROTHERS, LTD. and St. Paul Fire & Marine Insurance Company, Defendants, MARVIN WINDOWS, INC., Marvin Lumber & Cedar Company, and Marvin Windows of Tennessee, Defendants-Respondents.

257 Wis.2d 809

2002 WI App 232

652 N.W.2d 806

Peter M. SELZER, Plaintiff-Appellant, v. BRUNSELL BROTHERS, LTD. and St. Paul Fire & Marine Insurance Company, Defendants, MARVIN WINDOWS, INC., Marvin Lumber & Cedar Company, and Marvin Windows of Tennessee, Defendants-Respondents.

No. 01-2625.

Court of Appeals of Wisconsin.

Submitted on briefs March 14, 2002.

Decided August 29, 2002.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of William F. Bauer and Amy F. Scholl of Coyne, Niess, Schultz, Becker & Bauer, S.C., Madison.

On behalf of the defendants-respondents, the cause was submitted on the brief of Thomas A. Piette of Piette Law Firm, S.C., Waukesha and Donald J. Brown and Thomas H. Boyd of Winthrop & Weinstine, P.A., St. Paul, Mn.

Before Vergeront, P.J., Deininger and Lundsten, JJ.

¶ 1. DEININGER, J.

Peter Selzer appeals a judgment dismissing his claims against Marvin Lumber & Cedar Company for damages related to the decay of windows Selzer purchased from Marvin for use in his home.¹ Selzer claims Marvin breached an express warranty it made when selling him the windows, as well as an implied warranty arising from the sale transaction. He also claims that a statement in Marvin's product catalog ("all exterior wood is deep-treated to permanently protect against rot and decay") constituted fraudulent advertising under WIS. STAT. § 100.18 (1999-2000),² and that the statement renders Marvin liable for strict responsibility and negligent misrepresentation.

¶ 2. We conclude that Selzer's warranty claims and his claim for fraudulent advertising are timebarred. We also conclude that the economic loss doctrine bars Selzer's misrepresentation claims. We therefore affirm the trial court's dismissal of Selzer's claims on summary judgment.

BACKGROUND

¶ 3. Marvin is a manufacturer of windows. As part of the manufacturing process, Marvin treats the wood it uses in its windows with a preservative intended to prevent the growth of wood decay fungi. Marvin advertised its use of a wood preservative in one of its previous product catalogs, stating, "all exterior wood is deep-treated to permanently protect against rot and decay."

¶ 4. At all times relevant to this case, Marvin sold its windows with a one-year warranty on its millwork. As a matter of business policy, Marvin attached a copy of the warranty to every window sold. The warranty provided in part:

Marvin millwork is warranted for one year after sale to be of high quality workmanship and materials, and to be free from defects which might render it unserviceable....

....

For one year, we agree to repair or replace ... without charge, any items which may be defective ....

THE EXPRESS WARRANTIES SET FORTH HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.

¶ 5. By no later than 1990, Selzer purchased and took delivery of a number of Marvin windows for installation in his home. Selzer claims that his architect, acting on his behalf, recommended that he purchase Marvin windows based on the above quoted statement in the Marvin product catalog ("all exterior wood is deep-treated to permanently protect against rot and decay"). Selzer denies that either he or his architect received a copy of Marvin's one-year warranty before the purchase or delivery of the windows.

¶ 6. In 1997, Selzer noticed wood rot in several of the window frames. Over the course of time, the rot spread to the siding below a number of the windows.

¶ 7. Selzer contacted Marvin concerning the window rot. Marvin representatives inspected his home, confirmed the presence of rot in numerous windows, and offered Selzer a discount on new windows.

¶ 8. Selzer declined this offer and filed suit in January 2000. Selzer brought a variety of claims: breach of express and implied warranties, fraudulent misrepresentation under Wis. STAT. § 100.18, intentional misrepresentation, strict responsibility misrepresentation, and negligent misrepresentation.

¶ 9. On cross-motions for summary judgment, the trial court granted summary judgment to Marvin on all claims. Selzer moved the court to reconsider certain aspects of its summary judgment decision; the court denied this motion and entered a final judgment dismissing Selzer's complaint. Selzer appeals the judgment, challenging the dismissal of all of his claims except that for intentional misrepresentation, which he no longer pursues.

ANALYSIS

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¶ 10. We review a circuit court's grant or denial of summary judgment de novo, owing no deference to the trial court's decision. Waters v. United States Fid. & Guar. Co., 124 Wis. 2d 275, 278, 369 N.W.2d 755 (Ct. App. 1985). "[S]ummary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." M&I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 497, 536 N.W.2d 175 (Ct. App. 1995); see also WIS. STAT. § 802.08(2). We will reverse a decision granting summary judgment if either (1) the trial court incorrectly decided legal issues, or (2) material facts are in dispute. Coopman v. State Farm Fire & Cas. Co., 179 Wis. 2d 548, 555, 508 N.W.2d 610 (Ct. App. 1993). In our review, we, like the trial court, are prohibited from deciding issues of fact; our inquiry is limited to a determination of whether a factual issue exists. Id.

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¶ 11. Generally, when both parties move for summary judgment and neither argues that factual disputes bar the other's motion, the "`practical effect is that the facts are stipulated and only issues of law are before us.'" See Lucas v. Godfrey, 161 Wis. 2d 51, 57, 467 N.W.2d 180 (Ct. App. 1991) (citation omitted). Here, the parties dispute certain facts relating to the applicability of Marvin's one-year "limited" warranty. Marvin claims that it communicated the warranty terms to Selzer and his agents through a variety of means, and that these terms bar Selzer's warranty claims. Selzer replies that he knew nothing of the warranty before purchasing the windows, and even if he had, Marvin waived the warranty through its course of conduct.

¶ 12. This factual dispute does not require us to reverse the trial court's grant of summary judgment, however. To require reversal, an asserted factual dispute must be material; that is, it must concern a fact that affects the resolution of the controversy. Clay v. Horton Mfg. Co., Inc., 172 Wis. 2d 349, 353-54, 493 N.W.2d 379 (Ct. App. 1992). The dispute concerning Marvin's one-year warranty does not preclude a resolution of this litigation as a matter of law. Even if Marvin's limited warranty does not govern its sale of windows to Selzer, Selzer's warranty claims cannot be sustained for reasons we discuss below.

I.

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¶ 13. We first address Selzer's express warranty claim. The elements of an express warranty are: (1) an affirmation of fact;³ (2) inducement to the buyer; and (3) reliance thereon by the buyer. See Acme Equip. Corp. v. Montgomery Coop. Creamery Ass'n, 29 Wis. 2d 355, 359, 138 N.W.2d 729 (1966). Selzer's architect averred in part:

3. I was the architect involved in the design and specifications of Peter M. Selzer's home located in Verona, Wisconsin. I specified the Marvin windows and doors that were incorporated in the Selzer home.

4. Marvin sent me the attached "Catalog Number 8" which I used extensively in 1988 for the selection of windows for Selzer's home.

5. Page 2 of Catalog Number 8 provides "and all exterior wood is deep-treated to permanently protect against rot and decay." I relied on that language at the time of the design and in selecting Selzer's windows.

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¶ 14. Although the averments are sparse, we conclude they are sufficient to support Selzer's claim that, through his architect, he relied on and was induced by the purported warranty.⁴ The architect's statements that he received the catalog, used it extensively, and relied on the language at issue in recommending Marvin windows are evidentiary facts within his personal knowledge that we will consider. See WIS. STAT. § 802.08(3); Helland v. Kurtes A. Froedtert Mem'l Lutheran Hosp., 229 Wis. 2d 751, 764, 601 N.W.2d 318 (Ct. App 1999) (A party opposing summary judgment "must file affidavits or other supporting papers based upon personal knowledge of specific evidentiary facts that are admissible.").⁵ [8]

¶ 15. Marvin points to no submissions contradicting these facts. "Evidentiary matters in affidavits accompanying a motion for summary judgment are deemed uncontroverted when competing evidentiary facts are not set forth in counteraffidavits." Wisconsin Elec. Power Co. v. California Union Ins. Co., 142 Wis. 2d 673, 684, 419 N.W.2d 255 (Ct. App. 1987). Accordingly, we conclude that Selzer has made a prima facie showing that an express warranty existed with respect to the condition of the windows at the time of sale, specifically, that their exterior wood had been "deep-treated to permanently protect against rot and decay." We next consider Marvin's contention that, even if Selzer's submissions on summary judgment are sufficient to preclude dismissal of the warranty claims for lack of factual support, the claims are nonetheless timebarred.

¶ 16. Because the sale of the windows is a transaction in goods, it is governed by the Uniform Commercial Code — Sales (WIS. STAT. ch. 402). See Wis. STAT. § 402.102. A warranty action must be commenced within six years after the "cause of action has accrued." Wis. STAT. § 402.725(1).⁶ Generally, a warranty action accrues at the time the warranty is breached; i.e., at the time of delivery of the goods. See § 402.725(2). If the warranty "explicitly extends to future performance of the goods," however, the statute provides an exception to this rule; namely, the action accrues when the buyer discovers or should have discovered the breach. Id.

¶ 17. Here, the timeliness of Selzer's warranty...