2005AP1233 Meyer v. The Laser Vision Institute, LLC

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“First, Meyer’s complaint does not allege that the advertisement describes the role of the counselor. Meyer’s complaint does not contend that the advertisement states that the counselor is a licensed medical professional or that the counselor is not a commissioned sales representative. Further, the fact that the counselor is a commissioned sales representative who has an incentive to sell higher priced procedures and additional products also does not render the statements deceptive or misleading….

“While Meyer’s complaint is replete with legal conclusions concerning LVI’s alleged bait-and-switch scheme, absent from Meyer’s complaint are factual allegations tending to prove that, apart from any purpose not to sell the Lasik procedure for $299, there was a plan or scheme to carry out such a purpose. ¶19 Again, the complaint fails to allege that the low-cost procedure was not made available to consumers who qualified for the procedure and who wanted it. Specifically, it fails to allege that Meyer qualified for the low-cost procedure and was wrongfully denied it. The complaint does not allege that the counselor disparaged the low-cost procedure to Meyer in an effort to discourage her from purchasing it and then switched to the higher-cost procedure. Thus, as in American TV, the complaint does not allege any improper overt act.”

Plaintiff’s claims of unjust enrichment and money had and received are similarly unavailing.

“Meyer’s complaint fails to state a claim upon which relief can be granted. Meyer failed to allege facts showing that the advertisement she saw in the Sheboygan Press newspaper for the $299 Lasik procedure was deceptive or misleading in violation of Wis. Stat. § 100.18(1) or that the advertisement was part of a bait-and-switch scheme to sell the procedure at a higher cost contrary to § 100.18(9). Further, the parties’ contract bars Meyer’s equitable claims. The trial court’s order dismissing Meyer’s complaint is affirmed.”

Recommended for publication in the official reports.

Dist II, Sheboygan County, Bolgert, J., Anderson, J.

Attorneys:

For Appellant: Jill H. Bowman, Tampa, FL; M. Susan Maloney, Milwaukee; Mark A. Peterson, Milwaukee; Steven C. Ruth, Saint Petersburg, FL; John A. Yanchunis, Tampa, FL

For Respondent: Christopher C. Mohrman, Milwaukee