Malzewski v. Rapkin

¶1¶ 27. (dissenting). I respectfully dissent from the Majority's conclusion that, because of this court's recent decision in K & S Tool & Die Corp. v. Perfection Machinery Sales, Inc., 2006 WI App 148, 295 Wis. 2d 298, 720 N.W.2d 507, summary judgment in favor of the defendants (the Rapkins) was inappropriate on the Wis. Stat. § 100.18 claim.

¶2¶ 28. In concluding that K & S Tool & Die Corp. eliminates the question of the reasonableness of a buyer's reliance on a specific representation under Wis. *118Stat. § 100.18, see Majority at ¶ 24, the Majority ignores contrary language in that case:

[T]he unreasonableness of a purchaser's reliance on a representation may be relevant to whether the purchaser in fact relied, or... whether the purchaser would have "acted in its absence." That is, evidence that reliance would be unreasonable may lead a jury to conclude that the purchaser did not in fact rely on the representation but would have made the purchase without it.

¶3K&S Tool & Die Corp., 720 N.W.2d 507, ¶ 45 (quoting WI JI — Civil 2418).

¶4¶ 29. The Majority holds that the trial court was correct in concluding that as to each of the other claims asserted by the Malzewskis, their alleged reliance on the Rapkins' written statement1 about water seepage in the basement was unreasonable. Because the Malzews-kis elected to close the transaction without exercising their right to an inspection of the property, which would have easily disclosed exactly the matter of which they now complain, I conclude that their unreasonable reliance on the Rapkins' Condition Report is also an appropriate basis upon which to sustain the trial court's grant of summary judgment dismissing the false advertising claim based on the language in K&S Tool & Die Corp. set forth above. Consequently, I would affirm the grant of summary judgment dismissing all claims.