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Midland Builders7/14/2005
asoned that, when applying the "other property" exception, "one must look to the product purchased by the plaintiff, not the product sold by the defendant." Casa Clara, 620 So. 2d at 1247; see also Bay Breeze, 257 Wis. 2d 511, .
Applying that reasoning here, Midland points out that, unlike a homeowner, Midland purchased only windows and those windows damaged "other property," the Midland-built homes. Thus, according to Midland, the "other property" exception applies. However, when we examine the Casa Clara court's reasoning in context, it is apparent that the court was simply responding to the plaintiffs' ill-conceived argument that they purchased house components, not homes. See Casa Clara, 620 So. 2d at 1247. Neither Bay Breeze nor Casa Clara addresses how the "other property" exception works when the plaintiff is the seller, not a buyer, of an integrated system. That is the situation here, as it was in Wausau Tile. Accordingly, we follow Wausau Tile.
D. Under Existing Law, There Is No Exception to the Economic Loss Doctrine for Strict Responsibility Misrepresentation in a Commercial Setting
Midland makes an additional argument that, regardless of Wausau Tile, the economic loss doctrine should not apply to its strict-responsibility-misrepresentation claim. Although no such claim was at issue in Wausau Tile, we have previously applied the economic loss doctrine to claims of strict responsibility misrepresentation. See Selzer v. Brunsell Bros., 2002 WI App 232, -33, 257 Wis. 2d 809, 652 N.W.2d 806.
Nothing in Wausau Tile suggests that we should make an exception for Midland's strict-responsibility-misrepresentation claim here, and Midland does not explain why its strict-responsibility-misrepresentation claim should be treated differently than the same type of claim in Selzer. Rather, Midland's argument focuses on the policy of free negotiation underlying the economic loss doctrine and on an attempt to analogize strict responsibility misrepresentation to a "fraud in the inducement" exception to the economic loss doctrine. In light of Selzer, Midland must address this argument to the supreme court. That court recently determined that the economic loss doctrine applied to a strict-responsibility-misrepresentation claim arising from a commercial real estate transaction. Van Lare, 274 Wis. 2d 631, . Although the court in Van Lare repeatedly stated its holding narrowly, see id., , 41-42, the court also said that " nder existing law, there is no exception to the economic loss doctrine for strict liability misrepresentation in a purely commercial setting." Id., .
E. Midland's Joinder Argument
According to Midland, if we hold that Midland is not a real party in interest, then the proper remedy is to join the homeowners, not dismiss Midland's lawsuit. Midland, however, neither attempted to join the homeowners nor raised this joinder argument in the circuit court. Indeed, Midland does not dispute Semco's assertion that Midland has waived the argument. Rather, Midland says that this court "may consider [Midland's] argument, and should, because joinder is the proper remedy." We consider the matter no further because Midland provides no reason to deviate from our normal practice of requiring that issues first be raised before the circuit court. See State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501 (1997) ("The general rule is that issues not presented to the circuit court will not be considered for the first time on appeal.").
II. Midland's Contribution Claim
Along with its tort claims for negligence and strict responsibility misrepresentation, Midland also alleged a cause of action for contribution against
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