March 2011 Vol. 4, No. 2
 

Casenotes

Wisconsin

Contracts

Brophy v Rothschild, 2009 AP 1951 (Wis Ct App, 2010).

Facts:Rothschild offered to purchase an apartment building owned by Brophy, after several counteroffers, a price of $810,000 was agreed upon . The property was in foreclosure at the time the offer was made. Rothschild failed to obtain financing, verbally notifying Brophy (through their respective brokers). Brophy offered to amend the offer and extend the closing date. Rothschild did not sign the amendment and Rothschild's broker sent a cancellation of agreement and mutual release form to Brophy.

The property was then sold at a sheriff's sale for $695,000. Brophy brought suit alleging Rothschild defaulted under the contract. Rothschild moved for summary judgment. The court granted summary judgment finding a breach by Rothschild for failure to provide written notice of inability to procure financing. However, because Brophy had actual knowledge of the failure to procure financing, the Court found the breach to be non-material. Brophy appealed.

Issues:(1) Court erred by "applying the facts most favorable to the moving party in reaching its ruling." (2) The Court erred in considering parole evidence. (3) The Court erred in finding the breach to be immaterial.

Holding:Affirmed. (1) The court found that Brophy waived his right to dispute the fact that Seramur (his broker) received actual notice by failing to rebut Rothschild's affidavit. (2) Brophy's argued that there was an understanding prior to the agreement that there would be no need for written notice, thus bringing the notice under the parole evidence rule. The court found that the parole evidence rule did not apply. (3) The court reasonably found that Brophy suffered no damages because of Rothschild's breach, because Brophy had actual notice and would not have been able provide financing because of the impending foreclosure.

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[Last update: 3-4-11]

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