00-2250 Kain v. Bluemound East Industrial Park

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This is because: (1) plaintiff was the beneficiary of defendant’s warranty that the soils would support “a minimum of 3,000 pounds per square foot;” (2) the building constructed for plaintiff exerted less than 3,000 pounds per square foot; (3) the soil borings revealed loose layers of soil at depths between 13 and 21 feet; and (4) this soil was consolidating which was what caused the building to settle.

And, as to defendant’s affirmative defense that plaintiff’s failure to build storm sewers resulted in excess water, we reject that defense because water would not cause the building to settle if the soil had been properly compacted.

Accordingly, although we affirm the trial court’s determination that plaintiff’s claim of false advertising was time barred, we conclude that plaintiff presented sufficient credible evidence to resist defendant’s motion to dismiss the breach of warranty claim.

Affirmed in part, reversed in part and remanded.

Recommended for publication in the official reports.

Dist II, Waukesha County, Kieffer, J., Nettesheim, J.

Attorneys:

For Appellant: Sean Lamphier, Milwaukee; David A. Krutz, Milwaukee

For Respondent: M. Susan Maloney, Milwaukee; W. Wayne Siesennop, Milwaukee