By: dmc-admin//March 4, 2002//
“The Estimated Income and Expense document does not contain a date. However, because it was provided in late 1998, it is reasonable to infer that Armstrong actually expected to receive $146,700 in income from the current leases in 1998. Since Armstrong would receive that amount of income only if all the tenants listed on the Lease Information paid the full rent due under their leases as specified in that document, it is reasonable to infer that Armstrong had received all the rent due under all the leases up to the date on which the Estimated Income and Expense document was provided the Kailins or their agents, and also that he had no reason to expect that he would not receive any rental income due before the end of 1998. We therefore conclude that a reasonable fact finder could decide that the Estimated Income and Expense document was ambiguous as to whether it was representing that there were no actual or anticipated rent delinquencies for the year 1998; a reasonable fact finder could also decide that failure to disclose Ring Karate’s delinquency for 1998 made that document misleading. The evidence that Armstrong asked [salesperson] Carpenter if he had an obligation to disclose this information to the Kailins supports an inference that Armstrong knew that, without that information, the documents he had provided were misleading.”
However, we conclude further that the economic loss doctrine does not apply to claims under Wis. Stat. Sec. 100.18.
“For the reasons we have discussed in the preceding section, we conclude there are genuine issues of material fact whether the documents Armstrong or his agents provided the Kailins or their agents on or before Dec. 9, 1998,[the state of the acceptance of the offer to purchase] contained statements or representations that were misleading. However, with respect to statements or representations made after that date, we conclude they are not in any event covered by § 100.18 because they were not made ‘to the public.’ We reach this result because a statement made to the particular party with whom one has contracted is not a statement made to ‘the public.’…
“Once the contract was made, the Kailins were no longer ‘the public’ under the statute because they had a particular relationship with Armstrong – that of a contracting party to buy the real estate that is the subject of his post-contractual representation. The purpose of § 100.18 is aimed at untrue, deceptive, or misleading statements made to induce certain actions. See id. at 173. This purpose is reflected in the alternative requirement that the assertion, representation, or statement of fact be either with intent to sell or with intent to induce the public to enter into a contract or obligation relating to a purchase or sale. Statements made by the seller after a person has made a purchase or entered into a contract to purchase logically do not cause the person to make the purchase or enter into the contract. We see no indication in the language of § 100.18(1) that the legislature intended to address untrue, deceptive, or misleading assertions, representations, or statements of fact made by one party to another after they have entered into a contract.”
Accordingly, we reverse the summary judgment in favor of defendant insofar as it dismisses the breach of contract claim, the fraud in the inducement claim, and the claim under Wis. Stat. sec. 100.18 for representations made on or before Dec. 9, 1998, and we remand for further proceedings on those claims. We affirm the summary judgment insofar as it dismisses all other claims against defendant.
Affirmed in part, reversed in part and remanded.
Recommended for publication in the official reports.
Dist IV, Dane County, Flanagan, J., Vergeront, P. J.
Attorneys:
For Appellant: Gregory P. Seibold, Madison
For Respondent: Michael B. Van Sicklen, Madison; Marta T. Meyers, Madison