Writable & Citable: October 2024
That new RV too big for your vehicle? Tough luck; you can't return it.
Welcome back! It’s been a couple months since the flurry of activity as the Wisconsin Supreme Court finished up its 2023-24 term in July. As we kick off the 2024-25 term, I’m trying out a new column. I usually use Appellate Approach to dive into specific cases from Wisconsin’s appellate courts, but that leaves a lot of interesting cases unexplored. This column aims to fill that gap by providing short summaries of recent appellate decisions that pique my interest but don’t warrant a full article. Let me know what you think!
Nick Balsimo v. Venture One Stop, Inc., No. 2022AP1715
Make sure your truck can handle that $43,000 RV before you drive it off the lot. That’s the painful lesson Mr. Balsimo learned in this case from District III. He entered a contract with an RV dealer, under which Mr. Balsimo promised to pay for the RV upon the dealer’s promised delivery. Delivery and payment were made, and Mr. Balsimo drove off with his RV. Sixty-five minutes later, Mr. Balsimo attempted to return the RV, explaining that his Ford Expedition couldn’t handle the weight. The RV dealer refused to cancel the sale.
In court, Mr. Balsimo argued he had a right to cancel the sale agreement under a Penalties Provision, which provided as follows:
If the Purchaser elects to cancel this contract, it is the Dealer’s option to require the following forfeitures:
If cancellation is initiated within 24 hours after acceptance by the Dealer, the amount forfeited is 2% of the total cash price of the Recreational Vehicle.
If cancellation is initiated after 24 hours from acceptance by the Dealer, the amount forfeited is 5% of the total cash price of the Recreational Vehicle.
In a decision authored by Judge Hruz and recommended for publication, the court of appeals rejected Mr. Balsimo’s argument. The court reasoned, “the Penalties Provision exists to provide a remedy to [the seller] when a buyer cancels—i.e., breaches—the already binding purchase contract before the buyer performs his or her obligations.” (Emphasis added.) After the contract is fully performed, the Penalties Provision no longer applies and the contract can no longer be cancelled. If it were otherwise, the Penalties Provision would give the buyer an indefinite right to cancel the sale, potentially years into the future.
Arnold R. Kaiser v. Townline CTH-N LLC, No. 2023AP58
After Raymond Kaiser died in 2001, apparently intestate, his estate sold some of his real estate with a deed restriction limiting the property’s use to single-family residential or agricultural uses. The estate closed in 2005. More than a decade later, in 2019, Townline CTH-N LLC purchased the property subject to the deed restriction, but it didn’t like the deed restriction. Townline attempted to reopen the estate to have the deed restriction declared invalid, relying in part on the estate representative’s apparent failure to disclose that Raymond Kaiser did, in fact, have a will. The circuit court granted Townline’s motion to reopen the estate.
District III reversed. In an opinion by Judge Hruz, the court noted that the question of whether an estate may be reopened nearly 15 years after its closure lacks precedent in Wisconsin—or anywhere else for that matter. After a thorough survey of Wisconsin estate law, the court held that Timeline’s motion to reopen was simply too late. “In sum, public policy calls for eventual finality in estate administration; the ability to challenge an estate must eventually come to an end.”
Update: Townline filed a petition for review with the Wisconsin Supreme Court on October 3, 2024.
James Eddings v. Estate of Donna M. Young, No. 2023AP614
It’s tough to get around a statute of repose. In this case, an Estate sold a home, and, more than two years later, the buyers sued the Estate for misrepresentation related to mold issues in the house. The Estate then filed a third-party complaint against its realtor, seeking indemnification and contribution—again, more than two years after the closing. And therein lies the rub. Wisconsin Stat. § 452.142(1) provides a two-year statute of repose for realtors:
[A]n action concerning any act or omission of a firm or any licensee associated with the firm relating to brokerage services shall be commenced within 2 years after whichever of the following that applies occurs first:
(a) A transaction is completed or closed . . . .
The realtor argued this two-year statute of repose plainly barred the Estate’s claims against the realtor. Meanwhile—in an argument I must credit for its creativity—the Estate countered that the statute of repose could not apply to indemnification and contribution claims because doing so would abrogate the common law without clear language indicating the legislature intended to abrogate those claims. District II was unmoved. In a decision authored by Judge Gundrum and recommended for publication, the court rejected the abrogation-of-the-common-law arguments and held that the statute of repose’s application after two years really “is that simple.”