 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Lyman Lumber of Wisconsin3/29/2005
because the court was ruling on the merits of the contract claims. Rather, the court asked Yourchuck why it thought it was entitled to consequential, indirect, or incidental damages when there was a contractual provision prohibiting recovery of those costs. Yourchuck responded that it was entitled because Lyman's alleged breach rendered the entire contract-and therefore the limiting clause-invalid. The court's response was meant to convey that because no breach had yet been determined, it could not summarily determine Yourchuck's entitlement to the costs it sought.
. Third, given the context of the court's statement, it appears to have misspoken. The trial court had no intention of dismissing any contract-based claim, specifically because there were disputed facts. "When there is a conflict between an ambiguous oral pronouncement and the written judgment, the intent of the judge controls the determination." In re Estate of Jackson, 212 Wis. 2d 436, 443, 569 N.W.2d 467 (Ct. App. 1997). When the oral ruling is ambiguous, it is proper to look to the written judgment to ascertain the court's intent. Id. Thus, to the extent that the court's oral statement was misleading, the written summary judgment decision is not. It dismissed Yourchuck's second through fifth counterclaims; the first counterclaim alleged breach of contract.
. Finally, when we look at the final judgment, it is clear that the court considered Yourchuck's breach of contract claim because it "[took] up consideration of the several claims of specific breach alleged by Defendant Yourchuck against Plaintiff [Lyman]." Therefore, we need not determine if the trial court erred in dismissing the breach of contract counterclaim on summary judgment because it is evident the court did not summarily dismiss that counterclaim.
. The trial court did, however, dismiss Yourchuck's negligent construction counterclaim on summary judgment after concluding the economic loss doctrine preempted it. We review summary judgments de novo, using the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is appropriate when there is no material factual dispute and the moving party is entitled to judgment as a matter of law. Germanotta v. National Indem. Co., 119 Wis. 2d 293, 296, 349 N.W.2d 733 (Ct. App. 1984). Summary judgment methodology is well established and need not be repeated here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, -24, 241 Wis. 2d 804, 623 N.W.2d 751. Whether the economic loss doctrine applies is a question of law that we review de novo. Prent Corp. v. Martek Holdings, Inc., 2000 WI App 194, , 238 Wis. 2d 777, 618 N.W.2d 201.
. To support its claim that summary judgment was inappropriate, Yourchuck argues there is a factual dispute over whether the contract in this case is for goods or services. For example, Yourchuck argues the contract required the building to have insulation and that the insulation itself is not defective but simply fails to perform at the correct level. This, it argues, is a problem with the installation service, not the product, thus revealing the contract was one for services. Then, relying on Barr v. Premier Prod. Co. (No. 02-0688) 2002 WL 31749954 (Ct. App. 2002), it contends that we have held a claim for negligent construction based on a contract for services is not preempted by the economic loss doctrine.
. Barr was a certification to the supreme court, not a published case, and was withdrawn by this court after the parties voluntarily dismissed the appeal. Its citation is therefore inappropriate. See Wis. Stat. ยง 809.19(1)(e) and SCR 80.02. Moreover, in that case we simply agreed,
Page 1 2 3 4 5 6 7 8 Wisconsin Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|