Opinion
No. 210.
Argued April 2, 1970. —
Decided April 28, 1970.
APPEAL from an order of the circuit court for Taylor county: LEWIS J. CHARLES, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Larry W. Rader of Wausau.
For the respondents there was a brief and oral argument by Gene G. Krug of Medford.
This is an appeal from an order of the circuit court for Taylor county denying the plaintiff's motion for summary judgment. The plaintiff is a national farm and business sales organization. On April 18, 1968, the plaintiff's representatives entered into an exclusive listing contract with Vernon Niemuth, the defendant and respondent herein, for the sale of the Niemuth farm. Under the terms of the listing contract, the plaintiff agreed to find a prospective purchaser and was given the exclusive right to sell the farm for the price of $115,000. The agreement provided, inter alia:
"If a sale or exchange is made or a purchaser procured by the Broker, by the undersigned Seller, or by any other person, at the price and upon the terms specified herein, or at any other terms and price accepted by the undersigned Seller, during the term of this contract . . . the Seller agrees to pay Broker a commission of Ten per cent (10%) of the sale price."
The effective period of the listing contract was from April 18, 1968, to April 18, 1969.
Defendant Vernon Niemuth and his wife were land-contract vendees of the farm. The land-contract vendors were the mother and father of Vernon Niemuth. At the time of the execution of the listing contract, Helen Niemuth, Vernon's mother, was the survivor of her husband and was the person entitled to the proceeds on the land contract. The land contract provided that payments were to be made by the assignment of 50 percent of the proceeds of all milk products sold from the farm. The land contract vendees were required to maintain a herd of at least 50 milk cows and were obligated to produce no less than 9,000 pounds of milk per cow per year. Sometime prior to August, 1967, Vernon Niemuth sold his cattle and discontinued dairy-farm operations. Subsequent thereto, no payments were made on the principal due the land-contract vendor.
On June 26, 1968, the defendant in this action and his wife, Janet, entered into an agreement with his mother, Helen, in which they agreed to quitclaim their farm to Helen. Simultaneously, Helen Niemuth was to execute a land contract for the sale of the farm to one Lammar, and Lammar was to transfer his farm to Vernon Niemuth and his wife. The contract provided that the purpose was to settle all accounts between Vernon Niemuth and his mother, including all obligations under the 1960 land contract. These transactions were apparently carried out, and the net effect of these conveyances was to place the Niemuth farm in the hands of Lammar, and Vernon Niemuth and his wife became the owners of the Lammar farm.
The plaintiff in this action takes the position that this transaction constituted a sale or exchange of the property that Vernon Niemuth had listed with it. It therefore brought an action under its listing contract, demanding that it be paid a commission of $12,057.60. Vernon Niemuth answered the complaint and stated as his principal defense that by reason of his default to Helen Niemuth and her threats to foreclose, that he and his wife were obliged, in settlement of their defaulted land contract, to convey the property to Helen Niemuth and that this transaction did not constitute a sale but was rather in lieu of foreclosure proceedings.
Following the joinder of issue, the plaintiff moved for summary judgment, in which it contended by annexed affidavits. that the transaction and satisfaction of the land contract was in fact a sale and that the facts enumerated by the defendants in their answer did not constitute a defense. Plaintiff's affidavit also stated that the United Farm Agency had advertised the property, constantly worked on the sale, and had, in fact, brought two potential purchasers to inspect the Niemuth farm.
In response to these affidavits, Vernon Niemuth filed counteraffidavits. Vernon Niemuth's affidavit stated that he:
". . . desired to sell the farm real estate in question at a price of $115,000; that by reason of his contract default and pressure of possible foreclosure proceedings, affiant was forced to consent to a sale of the farm real estate . . . . That such sale . . . was made only so as to satisfy his obligation to Helen Niemuth and was not otherwise with his consent."
In addition, an affidavit in support of the defendant's position was filed by Ernest Arndt, the brother-in-law of Vernon Niemuth. Arndt's affidavit attests to the default of Vernon Niemuth and recites the concern of members of Niemuth's family that Vernon had failed to meet his financial obligations to Helen Niemuth and recited her liability as a guarantor of other loans by Vernon, that Helen Niemuth and the affiant met with an attorney and directed him to Call on Vernon Niemuth to discuss the land contract default, that Vernon was under a threat of foreclosure if he would not agree to the settlement terms, and that Vernon was under pressure to transfer the farm back to Helen Niemuth. Ernest Arndt also attests that, had the agreement not been reached, the decision to foreclose a land contract had already been made, and that Vernon would not have agreed to the settlement except for the pressures placed upon him.
On the basis of these affidavits, the circuit judge concluded that, although there was "no factual dispute between the parties," a question of law was presented. He nevertheless indicated that he was not convinced that the affidavits set forth all relevant facts which should be considered. The motion for summary judgment was denied, and the plaintiff has appealed.
We affirm the order of the circuit court. The remedy of summary judgment is provided by sec. 270.635, Stats. That statute reads in pertinent part:
"270.635 Summary judgments. (1) Summary judgment may be entered as provided in this section in any civil action or special proceeding. Notice of motion for summary judgment and the papers in support thereof shall be served within 40 days after issue is joined, subject to enlargement of time as provided in s. 269.45.
"(2) The judgment may be entered in favor of either party, on motion, upon the affidavit of any person who has knowledge thereof, setting forth such evidentiary facts, including documents or copies thereof, as shall, if the motion is by the plaintiff, establish his cause of action sufficiently to entitle him to judgment; and, if on behalf of the defendant, such evidentiary facts, including documents or copies thereof, as shall show that his denials or defenses are sufficient to defeat the plaintiff, together with the affidavit of the moving party, either that he believes that there is no defense to the action or that the action has no merit (as the case may be) unless the opposing party shall, by affidavit or other proof, show facts which the court shall deem sufficient to entitle him to a trial.
"(3) Upon motion by a defendant, if it shall appear to the court that the plaintiff is entitled to a summary judgment, it may be awarded to him even though he has not moved therefor.
". . . .
"(6) When an answer alleges a defense which is prima facie established by documents or public records, judgment may be entered for the defendant unless the plaintiff shows facts sufficient to raise an issue with respect to the verity or conclusiveness of such documents or records."
In Hardscrabble Ski Area v. First Nat. Bank (1969), 42 Wis.2d 334, 338, 339, 166 N.W.2d 191, this court said the summary judgment statute:
". . . vests discretion in the trial court as to whether the case should be tried. It follows that an order denying a motion for summary judgment will not be reversed until it appears that the trial court has abused its legal discretion or has not exercised it."
In McConnell v. L. C. L. Transit Co. (1969), 42 Wis.2d 429, 435, 167 N.W.2d 226, this court stated that a trial court will not be said to have abused its discretion in denying a motion for summary judgment, "unless it either incorrectly decides a legal issue or it declines to decide a legal issue which is capable of resolution in a factual vacuum." In Schuster v. Germantown Mut. Ins. Co. (1968), 40 Wis.2d 447, 452, 162 N.W.2d 129, this court held that:
"If the party opposing the motion for summary judgment submits sufficient facts which show there is a real controversy and takes the matter challenged by the motion out of the category of being a sham and unmeritorious suit or defense, that party is normally entitled to a trial on the merits." See also: Wozniak v. Local 1111 of UE (1970), 45 Wis.2d 588, 592, 173 N.W.2d 596, citing Schuster with approval.
In Zimmer v. Daun (1968), 40 Wis.2d 627, 630, 162 N.W.2d 626, we said:
"A trial court need not decide a question of law on a motion for summary judgment . . . even though no conflict of material facts exists. There is no absolute right to summary judgment."
The trial judge relied upon Zimmer v. Daun, supra, in denying the plaintiff's motion. In that case, this court stated, at page 631:
"Because of the importance of the construction as a precedent, a determination of all the facts material to the construction is needed, and we are not convinced the affidavits set forth all the relevant facts which should be considered."
The trial judge, relying upon the Zimmer Case, reasoned:
"So it is here. There are no great material differences between the factual allegations of the parties; and there is thus presented to us only the question of law heretofore recited. There are no Wisconsin precedents to aid us in the solution of the problem. Thus we must depend on the relevancy and weight to be given to the decisions of other state and federal courts. Because of the importance as a precedent of the ultimate ruling by our Supreme Court we do not believe that the legal issue before us should be decided upon affidavits."
It is thus apparent that Judge CHARLES concluded that, even though no factual dispute emerged from his analysis of the affidavits, nevertheless he was not convinced that all relevant facts had been set forth. His memorandum opinion does not reveal exactly what facts he felt should be supplied, but a reading of the record indicates that considerable question exists in respect to Vernon's bargaining power and his ability to enter into an arm's-length transaction with his mother in view of the threatened foreclosure. This court has not decided whether the type of listing contract involved herein entitles a broker to a commission when the vendee under a land contract reconveys the property to the vendor for considerably less than the sales price anticipated in the listing contract under circumstances where the vendee alleges that he was unable to make the payments and was coerced into entering the transaction satisfying the land contract. As we stated in Wozniak v. Local 1111 of UE, supra, there is no absolute right to summary judgment. It is within the discretion of the trial judge to deny the motion. Certainly, under the summary judgment statutes, where the trial judge expresses, as he did herein, that he was not convinced that all relevant facts were set forth, the movant is not entitled to judgment as a matter of right. Where a decision on a point of law not previously decided in this state is at issue, the trial judge has the discretion to make that decision only after he is satisfied that all relevant facts have been placed in evidence. While certain legal issues present themselves even on the incomplete facts as revealed by the affidavits, we conclude that this court should defer any prejudgment of the legal issues until such time as all facts considered relevant by the trial court have been presented. Under these circumstances, we conclude that the parties are not entitled to a determination of the law at this stage of the proceedings.
By the Court. — Order affirmed.