01-1250 Bentz v. Mosling

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Michael Mosling appeals a judgment dismissing his counterclaim against Jane Bentz for her alleged misrepresentation in the sale of a dental practice. Mosling claims that during the parties’ negotiation over the purchase price, Bentz misrepresented the number of prepaid patients to whom he would be rendering uncompensated services following the closing. The circuit court, relying on the “sham affidavit” rule, dismissed Mosling’s claim on summary judgment. We conclude, however, that the circuit court erred in its application of the “sham affidavit” rule, and that material issues of fact exist regarding Bentz’s alleged misrepresentation. Accordingly, we reverse the dismissal of Mosling’s counterclaim and remand for further proceedings on the claim.

Bentz cross-appeals the judgment insofar as it disallows a recovery by her of payments for unbilled “work done before the date of closing,” to which she claims entitlement under the parties’ agreement. The circuit court concluded that the contract obligated Mosling to forward to Bentz payments received for “accounts receivable,” but not for any work performed prior to closing beyond that included in the “accounts receivable.” We conclude, however, that the relevant contract language is ambiguous, and that genuine issues of material fact exist regarding the parties’ intent concerning unbilled work as of the date of closing.

Thus, we also reverse the judgment insofar as it denies Bentz’s claim for unbilled “work performed,” and we remand that claim as well for further proceedings in the circuit court.

Not recommended for publication in the official reports.

Dist IV, La Crosse County, Montabon, J., Deininger, J.

Attorneys:

For Appellant: Thomas L. Horvath, La Crosse; Francis M. Doherty, La Crosse

For Respondent: Timothy S. Jacobson, La Crosse; Sean O’ Flaherty, La Crosse