Mitchell Grunwald v. Andrew J. Helm

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 1, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP1903 Cir. Ct. No. 2023CV325

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

MITCHELL GRUNWALD AND KYRA KORNELY,

PLAINTIFFS-APPELLANTS,

V.

ANDREW J. HELM AND MEGAN L. HELM,

DEFENDANTS-RESPONDENTS.

APPEAL from a judgment of the circuit court for Ozaukee County:
ADAM Y. GEROL, Judge. Reversed and cause remanded for further
proceedings.

Before Neubauer, P.J., Grogan, and Lazar, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2024AP1903

¶1 PER CURIAM. Mitchell Grunwald and Kyra Kornely (hereinafter
the Grunwalds) appeal the circuit court’s grant of summary judgment dismissing
their Complaint1 against Andrew J. Helm and Megan L. Helm (hereinafter the
Helms), which alleged four claims related to their purchase of the Helms’ home:
(1) breach of contract; (2) common law intentional misrepresentation;
(3) misrepresentation based on WIS. STAT. §§ 895.446 (2023-24)2 and
943.20(1)(d); and (4) misrepresentation based on WIS. STAT. § 100.18. The
Grunwalds argue that the court erred in granting summary judgment to the Helms
when it: (1) decided the Grunwalds waived their right to sue for breach of
contract; (2) incorrectly applied the reasonable reliance standard to two of their
misrepresentation claims; and (3) ruled as a matter of law that there was no
misrepresentation. We reverse and remand for further proceedings consistent with
this opinion.

I. BACKGROUND

¶2 In September 2021, the Grunwalds purchased a residential property
located in Mequon from the Helms. The Helms had owned the property from
2013 to 2021, and during that time, the backyard frequently flooded. To manage
the water issues on the property, the Helms installed a second sump pump crock.
The Helms also raised complaints about the flooding issues with the City of
Mequon at least four times, most recently in 2019. Following their most recent
complaint to the City of Mequon, the Helms indicated the flooding issue had

1
All references to the Complaint refer to the Amended Complaint filed in
December 2023.
2
All references to the Wisconsin Statutes are to the 2023-24 version.

2
No. 2024AP1903

lessened, which they believed resulted from the neighbor beginning to “tak[e] care
of his property a little more.”

¶3 In the property Real Estate Condition Report, the Helms represented
that the only known defect affecting the basement was related to water and
moisture “seepage [that] occurs in the basement when Neighbors pond gets high.”
The Helms also noted in the same Report that the backyard—but no structures—
was in a flood plain. Additionally, at some point prior to listing the property for
sale, the Helms painted the basement floor and walls.

¶4 Prior to purchasing the property, the Grunwalds had a licensed home
inspector inspect the property. Neither the Grunwalds nor the home inspector
identified any signs of leakage or flooding in the basement at that time. Since
moving into the home, however, the Grunwalds have replaced four sump pumps
due to their “run[ning] continuously throughout the spring and summer and often
during the fall and winter.” The Grunwalds averred that the leakage and flooding
happened during most rainfalls and snow melts and often went on for days or
weeks. They also averred that the leakage has left behind dirt or rust stains the
Grunwalds say were once hidden by the Helms’ basement paint job. The
Grunwalds indicated they have observed flooding in the yard that has at times
surrounded the driveway and complained that they planned to purchase a dog but
that neither the dog nor their planned future children would be able to play in the
backyard due to the flooding issues. Lastly, the Grunwalds averred that their
detached garage has flooded and that such flooding damaged the personal property
stored inside.

¶5 After experiencing this multitude of water-related issues, the
Grunwalds hired an engineer to inspect the property. The engineer ultimately

3
No. 2024AP1903

opined that the Helms’ explanation of the basement seepage listed in the “Real
Estate Condition Report underreported and minimized the flooding and high
groundwater conditions that have occurred at the property for several years.”

¶6 The Grunwalds eventually filed suit against the Helms and alleged
four causes of action: (1) breach of contract; (2) common law intentional
misrepresentation; (3) misrepresentation based on WIS. STAT. §§ 895.446 and
943.20(1)(d); and (4) misrepresentation in violation of WIS. STAT. § 100.18. The
Helms moved for summary judgment as to all four claims, which the circuit court
granted following briefing and argument. The court reasoned that the law does not
obligate sellers to explain “the magnitude” of a property’s defects disclosed in the
Real Estate Condition Report and further held that the Grunwalds waived the
breach of contract claim because they did not have a professional engineer inspect
the property before purchasing it. In regard to the dismissal of the Grunwalds’
various misrepresentation claims, the court concluded that as to §§ 895.446 and
943.20(1)(d), the Grunwalds, as a matter of law, unreasonably relied on the
Helms’ representations, and as to § 100.18, that the Helms’ representations in the
Real Estate Condition Report were “objectively neither false, deceptive, nor
misleading as a matter of law[.]” The Grunwalds now appeal.

II. STANDARD OF REVIEW

¶7 A moving party is entitled to summary judgment where “the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” WIS.
STAT. § 802.08(2). “We review summary judgment decisions [de novo] using the
same standards and method[s]” as the circuit court. Pawlowski v. American Fam.

4
No. 2024AP1903

Mut. Ins. Co., 2009 WI 105, ¶15, 322 Wis. 2d 21, 777 N.W.2d 67. Although we
review such decisions de novo, we benefit from the circuit court’s analysis.
Yahnke v. Carson, 2000 WI 74, ¶10, 236 Wis. 2d 257, 613 N.W.2d 102.
Additionally, “we view summary judgment materials in the light most favorable to
the non-moving party[,]” and “‘[a]ny reasonable doubt as to the existence of a
genuine issue of material fact must be resolved against the moving party[.]’”
Midwest Neurosciences Assocs., LLC v. Great Lakes Neurosurgical Assocs.,
LLC, 2018 WI 112, ¶80, 384 Wis. 2d 669, 920 N.W.2d 767 (citation omitted). “A
factual issue is ‘genuine’ if the evidence is such that a reasonable jury could return
a verdict in favor of the non-moving party.” Id. “A ‘material fact’ is one that is
‘of consequence to the merits of the litigation.’” Id. (citation omitted).

III. DISCUSSION

A. Breach of Contract

¶8 We first consider whether the circuit court erred when it held—
despite not having seen a copy of the parties’ contract—that the Grunwalds
nevertheless waived their breach of contract claim by purchasing the property
without hiring an expert to inspect potential water issues.

¶9 “[W]aiver is a voluntary and intentional relinquishment of a known
right” that “must be clear and unambiguous.” Faust v. Ladysmith-Hawkins Sch.
Sys., 88 Wis. 2d 525, 532-33, 277 N.W.2d 303 (1979), clarified on
reconsideration, 88 Wis. 2d 525, 281 N.W.2d 611 (1979). Here, the offer to
purchase (e.g., the parties’ contract) was not made part of the Record, and the
circuit court therefore did not have the necessary information to determine
whether the Grunwalds had “voluntar[ily] and intentional[ly] relinquish[ed] … a
known right” identified in that contract. See Faust, 88 Wis. 2d at 532-33. This is

5
No. 2024AP1903

particularly so to the extent the court seemingly reached its conclusion based on
the Grunwalds’ having, for whatever reason, elected not to hire an engineer to
inspect the property prior to the purchase. In other words, despite the court’s
conclusion to the contrary, the Grunwalds’ failure to hire an engineer prior to the
purchase could not, in and of itself, be a basis for granting summary judgment to
the Helms on the breach of contract claim without the court having known what
the contract itself required or permitted.

¶10 Moreover, Malzewski v. Rapkin, 2006 WI App 183, 296 Wis. 2d 98,
723 N.W.2d 156, does not control here because it is distinguishable from the
circumstances in this case.3 Specifically, in Malzewski, the appellant made the
offer to purchase contingent on passing a home inspection and then later waived
the contractual right to have a home inspection. Id., ¶¶3-6. That is significantly
different than what occurred here. While it is undisputed that the Grunwalds
obtained a general home inspection prior to finalizing the purchase, because the
purchase contract itself is not part of the Record, we cannot determine whether the
Grunwalds waived a more specific inspection or, frankly, whether they waived
any right at all. This is so because we simply do not know what the contract said,
if anything, regarding the Grunwalds’ general rights or, more specifically, about
their ability or right to hire an engineer to evaluate the water issues prior to closing
on the purchase.

¶11 Accordingly, the Record does not support the circuit court’s
determination that the Grunwalds waived their right to sue for breach of contract,

3
We are similarly unpersuaded by the circuit court’s reliance on Lambert v. Hein, 218
Wis. 2d 712, 728-29, 582 N.W.2d 84 (Ct. App. 1998), which also specifically referenced the
purchase contract at issue.

6
No. 2024AP1903

and it erred in granting summary judgment on this basis. This does not mean,
however, that the Grunwalds will ultimately prevail on this claim—it means only
that there was insufficient evidence from which the court could conclude the
Helms were entitled to summary judgment on this claim as a matter of law.

B. Common Law Misrepresentation

¶12 We next consider whether the circuit court erred in granting
summary judgment on the Grunwalds’ common law misrepresentation claim when
it held as a matter of law that the Grunwalds unreasonably relied on the Helms’
representations. Specifically, the court noted that an intentional misrepresentation
claim includes multiple elements, including “that the [buyer] believed that the
representation was true and relied upon it,” and that it was “on this [specific]
element that the Grunwalds’ intentional misrepresentation claim fails as a matter
of law” based on Malzewski and Lambert v. Hein, 218 Wis. 2d 712, 582 N.W.2d
84 (Ct. App 1998).

¶13 In discussing an intentional misrepresentation claim in Malzewski,
we said that “[a] buyer’s claim based on a seller’s alleged ‘intentional
misrepresentation requires that the buyer’s reliance be justifiable.’” Malzewski,
296 Wis. 2d 98, ¶18 (quoting Lambert, 218 Wis. 2d at 731). We explained that
there, “the Malzewskis’ reliance on the Real Estate Condition Report without
exercising their right to have the home inspected was not justified.” Malzewski,
296 Wis. 2d 98, ¶18 (emphasis added). As discussed above, however, we cannot
conclude—nor could the circuit court—whether the Grunwalds waived a
contractual right when the contract was not made part of the Record on summary
judgment. It was therefore inappropriate for the court to rely on Malzewski and

7
No. 2024AP1903

Lambert to reach the conclusion it did in regard to the intentional
misrepresentation claim.4

¶14 Additionally, in Novell v. Migliaccio, our supreme court explained
that reasonable reliance can be fact-specific and therefore may at times—although
not always—ultimately present a question of fact. See 2008 WI 44, ¶¶56-60, 309
Wis. 2d 132, 749 N.W.2d 544 (concluding that genuine issues of material fact
remained regarding reasonable reliance in a WIS. STAT. § 100.18 claim). There,
the homeowner relied on a Real Estate Condition Report even though the home
inspector identified high moisture and walls that were wet. Novell, 309 Wis. 2d
132, ¶¶17, 56-60. The Novell court reasoned that although the report described
several foundational problems with the home, the circuit court could not have
ruled as a matter of law that the reliance was unreasonable. Id., ¶¶54-56, 60.

¶15 We conclude that Novell’s holding applies here. The Grunwalds
knew about the basement water “seepage” defect and the floodplain just like the
homebuyer in Novell knew about the structural issues. However, these facts do
not clearly establish that the Grunwalds unreasonably relied on the Report, which
did not disclose the history of basement (or garage) flooding. Based on these
facts, we therefore conclude that the question of whether the Grunwalds
unreasonably relied on the Helms’ representations is a question of fact that the

4
Specifically, the circuit court stated that the Grunwalds’ reliance was not justifiable
because they were aware of “at the very least[] potential defects in the basement” and that
accordingly, their “reliance on the real estate condition report without exercising the rights to
have the home inspected further on this issue was not justified.” (Emphasis added.) Again, we
do not know what further rights the Grunwalds may or may not have had because the contract
was, for whatever reason, not made part of the summary judgment proceedings.

8
No. 2024AP1903

factfinder must decide, as a jury could reasonably find that the Grunwalds had no
reason to believe the report was incorrect.

C. Misrepresentation Under WIS. STAT. §§ 895.446 and 943.20(1)(d)

¶16 The Grunwalds also challenge the circuit court’s grant of summary
judgment on their WIS. STAT. §§ 895.446 and 943.20(1)(d) misrepresentation
claim. We conclude the circuit court incorrectly added a reasonable reliance
element to the statutory misrepresentation claim, and it therefore erred in granting
summary judgment based on its conclusion that the Grunwalds’ reliance was not
reasonable as a matter of law.

¶17 In Pagoudis v. Keidl, our supreme court reiterated the six elements a
plaintiff must establish when pursuing a misrepresentation claim under WIS. STAT.
§§ 895.446 and 943.20(1)(d): “(1) that the defendant made a false representation
to the plaintiff; (2) the defendant knew the representation was false; (3) the
defendant intended to deceive and defraud the plaintiff; (4) the plaintiff was
deceived; (5) the plaintiff was defrauded; and (6) the defendant obtained money
through the sale of property to the plaintiff.” 2023 WI 27, ¶15, 406 Wis. 2d 542,
988 N.W.2d 606. Notably absent from this list is any mention of reasonable
reliance. Consequently, the circuit court here erred when it imported the
Malzewski reasonable reliance element as part of its analysis as to this claim, and
the court therefore erred in granting summary judgment on the misrepresentation
claims arising under §§ 895.446 and 943.20(1)(d) on that basis.

9
No. 2024AP1903

D. Misrepresentation Based on WIS. STAT. § 100.18

¶18 Finally, we review the circuit court’s grant of summary judgment on
the misrepresentation claim under WIS. STAT. § 100.18. To establish a claim
under § 100.18, a plaintiff

must allege that the defendant has, with the specified intent,
made an “advertisement, announcement, statement or
representation … to the public,” which contains an
“assertion, representation or statement of fact” that is
“untrue, deceptive or misleading,” and that the plaintiff has
sustained a pecuniary loss as a result of the “assertion,
representation or statement of fact.”

Tietsworth v. Harley-Davidson, Inc., 2004 WI 32, ¶39, 270 Wis. 2d 146, 677
N.W.2d 233 (omission in original; citation omitted).

¶19 In Malzewski, we concluded that a reasonable jury could find that
the cracks in a basement wall and the sellers’ attempted efforts at remediation
should have been disclosed, and that the failure to disclose this information could
support a WIS. STAT. § 100.18 misrepresentation claim. Malzewski, 296 Wis. 2d
98, ¶25. Here, the circuit court held that because the Helms checked the “yes” box
regarding certain defects regarding multiple basement-related water and moisture
issues in the Real Estate Condition Report, the “report was objectively neither
false, deceptive, nor misleading as a matter of law.” The court reached this
conclusion because it reasoned that the Report put the buyers on notice of the
defects, particularly because the sellers specified the defect of “seepage,” and that
this was sufficient to negate the Grunwalds’ § 100.18 claim. However, similar to
our conclusion in Malzewski that a reasonable jury could conclude that the sellers’
“attempted efforts at remediation should have been disclosed[] and that failure to
do so violated WIS. STAT. § 100.18,” a reasonable jury here could likewise
conclude that the Helms, particularly in light of the apparent fact that the basement

10
No. 2024AP1903

was painted at some point leading up to the sale, knew the term “seepage”
minimized the actual scope of the water entry in the basement. See Malzewski,
296 Wis. 2d 98, ¶25.

¶20 Accordingly, because there are disputed genuine issues of material
fact from which a reasonable jury could find that the Helms minimized the scope
of the water entry in the basement by using the term “seepage,” the Helms were
not entitled to summary judgment on the Grunwalds’ WIS. STAT. § 100.18 claim
and the circuit court erred in concluding otherwise.

By the Court.—Judgment reversed and cause remanded for further
proceedings.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

11