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Intention was right, rule was wrong

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New Richmond, 54017

New Richmond Wisconsin 127 South Knowles Avenue 54017

Although appeals court judges understand why a St. Croix County judge decided as he did in a property dispute, they ruled that the standard he based his decision on doesn't fit the case.

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A District 3 Court of Appeals decision filed Thursday reverses a ruling by Judge Edward Vlack in a civil court suit filed by Graeme D. and Lucie M. McMeeken, Somerset, against Lee M. and Jessica Mishler, Roberts.

On Aug. 10, 2003, the McMeekens made an offer to buy a house from the Mishlers. The Mishlers accepted the offer, which stipulated that they would replace siding damaged by hail.

Nearly a month later, the offer to purchase was amended after Jessica Mishler told the McMeekens' agent that the Mishlers were not going to replace the siding because the insurance company had decided there wasn't coverage for the hail damage.

The purchase agreement was amended to say the Mishlers wouldn't replace the siding but would pay all title insurance costs.

Later the McMeekens learned the insurance company had written two checks to replace the siding, one for $2,613 on Aug. 25, 2003, and one for $8,494 on Oct. 9, 2003.

The McMeekens filed a civil lawsuit in January 2004. Fifteen months later, after a court trial, Judge Vlack ordered the Mishlers to pay the McMeekens $10,468.

In their appeal the Mishlers argued that Vlack erred in awarding the McMeekens damages based on the "benefit-of-the-bargain" rule. The rule provides that the value of the property misrepresented should be compared to its value as purchased and damages set accordingly.

The appeals court agreed with the Mishlers' argument, saying the rule doesn't fit this case because there was no proof showing a difference in the value of the property as represented and as purchased.

"The property was received at closing in exactly the same condition (without new siding) as it was represented to be when the parties amended the offer to purchase," ruled the appeals judges.

"We understand that the circuit court wanted to provide a remedy to the McMeekens for the Mishlers' false statement that they were not going to receive insurance proceeds to fix the siding... Some other legal theory might justify the damages awarded, but no valid theory has been presented to us on review, nor is any readily apparent."

The appeals court reversed Judge Vlack's decision on the "benefit-of-the-bargain" rule and sent the case back to county court for further proceedings.

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