author: BROWN, J.

text:
    Thomas Avery and Mary Avery, Plaintiffs-Respondents, v. Drew Diedrich, The Diedrich Agency, Inc. and Westport Insurance Corporation, Defendants-Appellants.
    Court of Appeals

      No. 2005AP1730.

      Submitted on briefs April 6, 2006.

      —Decided June 7, 2006.

    2006 WI App 144
    (Also reported in 720 N.W.2d 103.)

      On behalf of the defendants-appellants, the cause was submitted on the briefs of Mark S. Nelson and Heather A. Lutzke of Nelson, Connell & Conrad, S.C. of Brookfield.
    On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Daniel S. Davis and Leah M. Michaelson-Link of Davis & Gelshenen, LLP of Milwaukee.
    Before Snyder, PJ., Brown and Nettesheim, JJ.

       Petition to review granted 10-10-06.

   BROWN, J.

¶ 1. Wisconsin case law makes clear that when an insurance agent agrees to procure coverage that the client requests, the failure to acquire it exposes the agent to a suit claiming negligence. This case tests whether an agent is exposed to liability even if the client requests the coverage and the agent has not agreed to procure it. We hold that the insurance agent is not so exposed and reverse the circuit court's determination to the contrary.

¶ 2. Given that this case involves a motion for summary judgment, we recite the facts in the light most favorable to the plaintiffs. See Rainbow Country Rentals and Retail, Inc. v. Ameritech Publ'g, Inc., 2005 WI 153, ¶ 13, 286 Wis. 2d 170, 706 N.W.2d 95 (evidence viewed in light most favorable to nonmovant). Mary Avery inherited a property in Green Lake, Wisconsin, from her father in early 2002. Her father had insured the property for $150,000, and she and her husband, Thomas Avery, later procured an Auto-Owners Insurance Company policy for the same amount through Drew Diedrich at The Diedrich Agency, Inc. (collectively, Diedrich). Diedrich had confirmed the $150,000 value by conducting an inspection of the premises and using an evaluation formula.

¶ 3. Months later in mid-July, the Averys had a meeting with Diedrich regarding various insurance policies. At that time, Thomas stated his opinion that the policy limits should be raised to at least $250,000 and asked Diedrich to increase coverage. Diedrich responded that the property was not worth that much and that a $100,000 increase on a $150,000 property would look suspicious. The Averys agreed to get an assessment to support the increased value and then get back to Diedrich.

¶ 4. The Averys subsequently obtained a verbal assessment from a contractor. However, they never communicated that fact to Diedrich. The parties did not discuss further the possibility of an increase in coverage, and Diedrich had not procured additional fire insurance coverage for the Averys as of September 6, when a fire occurred on the property. The $150,000 policy limits turned out to be too low; the replacement cost of the property exceeded $250,000. The Averys sued Diedrich for damages on the theory that he negligently failed to increase their coverage.

¶ 5. Diedrich moved for summary judgment, and the circuit court held a hearing. Diedrich contended that an agreement between the parties was a necessary prerequisite to an insurance agent's duty to procure coverage for a customer. The court denied Diedrich's motion, interpreting Wisconsin law to require an agent to procure any coverage the customer requested, not just coverage it agreed to procure. The court relied primarily on three cases. It first cited Nelson v. Davidson, 155 Wis. 2d 674, 681, 456 N.W.2d 343 (1990), and Meyer v. Norgaard, 160 Wis. 2d 794, 798, 467 N.W.2d 141 (Ct. App. 1991), which state that an agent has a duty to act in good faith and follow the insured's instructions. It also noted that the law imposes on the insured the duty to determine how much coverage he or she needs. See Meyer, 160 Wis. 2d at 798-800. The court concluded that when insureds meet this obligation, they have done everything the law requires of them and therefore are entitled to demand that the agent follow their instructions. The court cited Lisa's Style Shop, Inc. v. Hagen Insurance Agency, Inc., 181 Wis. 2d 565, 577, 511 N.W.2d 849 (1994) — which held that absent a request by the insured to raise its policy limit, the agent's only duty was to ensure that existing coverage remained in effect — as support for its conclusion. According to the court, "[T]he inference there is if the insured then makes a request for increasing the coverage then there is a duty to carry that out. So I think ... the language in Lisa's Style Shop is consistent with the principles in both Nelson and Meyer." Diedrich appeals from the denial of summary judgment.

¶ 6. A court should award summary judgment when, taking the evidence in the light most favorable to the nonmoving party, no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Rainbow Country Rentals and Retail, Inc., 286 Wis. 2d 170, ¶ 13. Our review is de novo, and we apply this standard just as the circuit court would. Id. Here Diedrich stipulates to the Averys' version of the facts for purposes of this motion. We therefore have only a legal question before us, namely the scope of Diedrich's duty to the Averys. See id. (only legal questions remain where facts undisputed); Nelson, 155 Wis. 2d at 679 (duty involves a legal question the court resolves based on policy considerations).

¶ 7. Both parties rely heavily on Appleton Chinese Food Service, Inc. v. Murken Insurance, Inc., 185 Wis. 2d 791, 519 N.W.2d 674 (Ct. App. 1994). In Appleton Chinese, the court held that the insurance agent was properly subjected to liability for negligently failing to procure coverage that the insured had requested. See id. at 802-03, 811. In that case, the owners of a Chinese restaurant had asked Murken to procure a policy with replacement cost and lost-business-income coverage for their property. See id. at 796. Murken prepared applications but, due to a clerical error, these applications did not request coverage for lost business income. Id. at 798. Hence, the policy Murken procured on the customers' behalf did not contain such coverage. Id. at 799. The customers did not learn of this omission until a fire destroyed the property. Id. at 796.

¶ 8. The Averys conclude that Appleton Chinese supports their claim. They view the case as holding that the plaintiffs were allowed to recover from Murken simply by virtue of the fact that they requested coverage, which Murken then failed to procure.

¶ 9. We read Appleton Chinese differently. The court's language indicates that a mere request for coverage does not give rise to a duty on the agent's part. The court stated that the insurance agent's duty includes "an independent duty to act with reasonable care, skill and diligence in procuring the agreed upon coverage." Id. at 805 (emphasis added). Further, "[t]he negligent failure of an insurance agent to issue a policy, pursuant to an agreement relied upon by the applicant, renders the agent liable in tort for loss resulting therefrom." Id. at 804 (citation omitted; emphasis added). Thus, where a customer has requested coverage and the parties have entered into an agreement concerning that coverage, the agent's duty to diligently seek to obtain that coverage arises. That "something more" was present in Appleton Chinese. After the plaintiffs requested coverage, Murken prepared seven applications and ultimately procured a policy. Id. at 798-99. These actions certainly evidenced an agreement between the parties, and the plaintiff evidently relied on that agreement.

¶ 10. This case presents an entirely different scenario. Diedrich did not enter into an agreement with the Averys to procure additional coverage. We acknowledge that Diedrich had a pre-existing relationship with them. However, all we can discern from the record is that the parties contracted for Diedrich to obtain a $150,000 policy. It is undisputed that he did so. Any increase in coverage would not have been "pursuant to" that agreement. Thus, we cannot conclude that the Averys' initial agreement gave rise to a duty to procure the requested increase in coverage.

¶ 11. We conclude that other case law that the Averys offer is distinguishable for a similar reason. We acknowledge that Nelson and Meyer impose duties on an agent to act in good faith and follow the customer's directions. However, in both cases the agent had procured policies for the customer. Neither speaks to whether such a duty would have arisen in the absence of such an agreement between the parties. The Averys also cite to Schurmann v. Neau, 2001 WI App 4, 240 Wis. 2d 719, 624 N.W.2d 157 (Ct. App. 2000). Schur-mann involved a customer's request for an increase in coverage. Id., ¶ 2. The insurance agent assured the customer that , he qualified for the increase and procured a policy with the requested amount. Id. The insurer later determined that the customer did not qualify for that level of coverage. Id., ¶ 3. Again, this case involved more than simply a request for increased coverage. It involved actions on the part of the agent manifesting an agreement to follow that request.

¶ 12. Our conclusion that an insurance agent must agree to procure a coverage increase before he or she has a duty to do so finds support in case law from other jurisdictions and among commentators. We turn first to other case law. The Montana Supreme Court, for example, states, "Montana law requires a client's request to procure certain insurance, followed by an agent's commitment to do the same to put the agent under a 'duty' to procure .... Absent a duty, there can be no negligent failure to procure insurance." R.H. Grover, Inc. v. Flynn Ins. Co., 777 P.2d 338, 341 (Mont. 1989) (citation omitted). Obviously, a request by a customer to procure coverage is to no avail in establishing a duty on the agent's part unless the agent commits to do so.

¶ 13. Baldwin v. Lititz Mutual Insurance Co., 393 S.E.2d 306, 307-08 (N.C. Ct. App. 1990), also delineates the responsibilities of an insurance agent to a customer:

As a general rule, when an insurance agent undertakes to procure insurance for a customer to afford protection against a designated risk, the law imposes upon the agent the duty to exercise reasonable care in performing that undertaking, and the agent will be liable for loss attributable to the negligent performance or default of that duty.... But it is equally well established that an insurance agent is not obligated to assume the duty of procuring a policy of insurance for a customer. In determining whether an agent has undertaken to procure insurance for a customer, the court must consider the conduct of the parties and the communications between them tending to show that the agent accepted an obligation to provide insurance.

(Citations omitted.) Baldwin reveals that the insurance agent, not the customer, gets to decide whether or not the agent will assume the duty to procure coverage. If the law were to recognize a duty based on a mere request by the customer that the agent obtain such insurance, it would effectively give customers a veto over the agent's decision.

¶ 14. Commentary and other sources are in accord. According to 2-41 Commercial Damages: Remedies in Business Litig. P 41.07[1], an insurance agent may acquire enforceable duties by its conduct, and an agent "who has agreed to procure insurance has a duty to exercise reasonable skill and care in obtaining that insurance." (Emphasis added.) Further, an agent may incur liability if "the agent has failed to obtain promised coverage." Id. at P 41.07[2] (emphasis added). "Black-letter law relieves the agent... from liability 'where the agent effects a binding contract of insurance that conforms to the agreement between the agent and the insured.1" Daniel D. Blinka & Thomas J. Hammer, Court of Appeals Digest, Wisconsin Lawyer 42, 46 (Oct. 1994) (quoting Appleton Chinese). Another commentator speaks of a "foundational duty principle" governing an agent's relationship to his or her customers. See Clarance E. Hagglund et al., Insurance Producer Liability: In Plain Language 17 (1991). This principle states that "the [agent] owes the customer no duties until the [agent] agrees to undertake a particular task." Id.

¶ 15. Again, Diedrich undertook and agreed to only the "particular task" of procuring a $150,000 fire insurance policy. Diedrich performed that task. Because there is no evidence that Diedrich's conduct failed to conform to the parties' agreement, we must assume that Diedrich's duty to the Averys ended when it procured that policy. Incurring additional coverage was a new task, and the Averys could not unilaterally impose it on Diedrich. Diedrich did not agree to perform this new task and therefore had no duty to perform it.

¶ 16. We wish to make two further points before closing. First, we do not accept the Averys' suggestion that the applicable jury instruction reveals the unimportance of the agent's agreement to procure insurance. They state, "Nowhere in the applicable Jury Instruction or in any Wisconsin case is there stated a requirement that the agent must agree to put the coverage into effect before the duty attaches. The requirement simply does not exist." We disagree that this omission is significant. Agreement goes to the threshold question of duty, which, as we have said above, presents a legal question.. Juries do not resolve questions of law.

¶ 17. Second, the language in Lisa's Style Shop, on which the circuit court relied, is not at odds with our holding. In Lisa's Style Shop, the plaintiff had not even requested increased coverage. Lisa's Style Shop, 181 Wis. 2d at 570. It is perfectly consistent to say on the one hand that "[a]bsent a request from [the customer] to raise the [policy] limits, [the agent's] only duty [i]s to insure that [the customer's] coverage remain[s] in effect," id. at 577, and on the other hand that a request could give rise to such a duty, depending on whether the agent agreed to honor the request.

¶ 18. We reverse the circuit court's denial of Diedrich's summary judgment motion. Appleton Chinese, as well as commentary and case law from other courts, clearly indicates that the agent must agree to procure particular coverage before the law will impose on the agent a duty to obtain that coverage. Diedrich never agreed to raise the Averys' policy limits.

By the Court. — Order reversed.


source: Caselaw Access Project

author: HIGGINBOTHAM, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Thomas G. Kramer, Defendant-Appellant.

    Court of Appeals

      No. 2005AP105-CR.

      Submitted on briefs January 19, 2006.

      —Decided June 8, 2006.

    2006 WI App 133
    (Also reported in 720 N.W.2d 459.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Tim Provis, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James M. Freimuth, assistant attorney general, and Peggy A. Lautenschlager, attorney general.
    Before Lundsten, PJ., Dykman and Higginbotham, JJ.

       Petition to review denied 12-5-06.

   HIGGINBOTHAM, J.

¶ 1. Thomas G. Kramer appeals a judgment of conviction for first-degree intentional homicide, attempted first-degree intentional homicide, and theft from a person or corpse. Kramer argues his conviction should be reversed and remanded for a new trial because (1) pretrial statements made by Kramer should have been suppressed because he invoked his Fifth Amendment right to counsel during a standoff with police prior to being in custody; (2) pretrial statements made by Kramer should have been suppressed because the State deliberately failed to electronically record the interrogations in which they were made; and (3) Kramer's constitutional right to present a defense was violated when testimony showing his mistrust and fear of local law enforcement was excluded. We reject Kramer's arguments and affirm.

BACKGROUND

¶ 2. On March 12, 2003, the State filed a criminal complaint charging Kramer with first-degree intentional homicide, attempted first-degree intentional homicide, theft from a person or corpse, and the penalty enhancer of using a dangerous weapon in the commission of a crime. The charges arose from an incident occurring on March 7, 2003, in which Kramer was alleged to have shot and killed one police officer and shot at another officer over the course of a standoff after Kramer allegedly threatened a Town of Strongs Prairie crew attempting to trim trees on or near his property.

¶ 3. At trial, one of the members of the tree-trimming crew, Roland Rollie, testified that on March 6, 2003, his crew planned on trimming trees on the right-of-way in front of Kramer's property. Rollie testified that, before they were going to trim the trees, he talked with Kramer, who stated that he did not want any trees on his property cut and stated, "If you do, you'll be dead." Another crew member, Ronald Amell, testified that after he was told about this threat, he asked Kramer if he had indeed threatened to kill Rollie, and Kramer admitted he said that. Amell stated the crew worked on other trees that day, but came back the following day and observed Kramer repeatedly pacing his driveway. At one point Amell observed that Kramer was carrying a gun. Amell then called the sheriffs department.

¶ 4. After a few minutes, an officer, identified by Amell as Deputy Michael Shannon, arrived in a squad car with lights flashing. Kramer stood near his mailbox at the end of his driveway and was not carrying a gun. Deputy Shannon pulled up to Rollie, talked with him, and then drove toward Kramer, who started quickly walking away down the driveway. Amell testified Deputy Shannon got out of the squad car and stated repeatedly, "Tom, I need to talk to you." Kramer continued to briskly walk away and then stepped off into a wooded area on his property. Amell observed Kramer pick up a rifle and heard Deputy Shannon say, "Drop the gun" while drawing his firearm. Amell then heard two nearly simultaneous shots fired and then a third as Deputy Shannon fell down. Deputy Shannon did not respond to Amell's questions of, "Officer, are you alright" but Kramer responded, "No, I shot him." Counsel stipulated into evidence the autopsy report, which stated Deputy Shannon's cause of death was a gunshot wound.

¶ 5. Adams County Sheriffs Department Chief Deputy Alexander Bebris testified that an estimated 100 officers from area counties were called in to form a perimeter around Kramer's property. A standoff ensued, with Kramer using Deputy Shannon's radio to contact the police. Police attempted to negotiate Kramer's peaceful surrender. After the radio's batteries died, police dropped a phone in front of Kramer's garage, while a team of four officers led by Juneau County Sheriffs Department Captain Steven Coronado positioned themselves on one side of the garage to assist in arresting Kramer when he came out for the phone. When Kramer came out to pick up the phone, he saw Coronado and fired at him. As Kramer fled around the garage, other officers intervened and arrested him.

DISCUSSION

I. Fifth Amendment Right to Counsel

¶ 6. Kramer contends that the statements he made while in police custody following the standoff must be suppressed under Miranda and Edwards because he requested an attorney during the standoff and police subsequently questioned him in the absence of counsel. Kramer does not address whether he was "in custody" within the meaning of Miranda when he requested counsel. Rather, he asserts that police were required to honor his request because it preceded police questioning. We disagree.

¶ 7. "The trial court's findings of evidentiary or historical facts will not be overturned unless clearly erroneous. However, questions of constitutional fact are subject to an independent appellate review and require an independent application of the constitutional principles involved to the facts as found by the trial court." State v. Stearns, 178 Wis. 2d 845, 849, 506 N.W.2d 165 (Ct. App. 1993) (citations omitted).

¶ 8. The Fifth Amendment to the United States Constitution provides that no "person. . . shall be compelled in any criminal case to be a witness against himself." U.S. Const, amend. V. The Fourteenth Amendment of the federal constitution requires state courts to observe this privilege against compelled self-incrimination. Malloy v. Hogan, 378 U.S. 1, 6 (1964). In Miranda, the United States Supreme Court recognized the right to have counsel present during custodial interrogation to safeguard the right against compulsory self-incrimination. Miranda v. Arizona, 384 U.S. 436, 471 (1966); see also Edwards v. Arizona, 451 U.S. 477, 481-82 (1981); State v. Jennings, 2002 WI 44, ¶ 26, 252 Wis. 2d 228, 647 N.W.2d 142. Police must cease questioning when an individual's Miranda right to counsel is invoked. Edwards, 451 U.S. at 482; see also State v. Hassel, 2005 WI App 80, ¶ 9, 280 Wis. 2d 637, 696 N.W.2d 270. Ensuing statements made in violation of the suspect's right to counsel are inadmissible. See Edwards, 451 U.S. at 487.

¶ 9. However, " 'the Miranda safeguards apply only to custodial interrogations.'" Hassel, 280 Wis. 2d 637, ¶ 9 (emphasis added) (quoting State v. Pheil, 152 Wis. 2d 523, 531, 449 N.W.2d 858 (Ct. App. 1989)); see also State v. Armstrong, 223 Wis. 2d 331, 344-45, 588 N.W.2d 606 (1999). Thus, unless a defendant is in custody, he or she may not invoke the right to counsel under Miranda.

¶ 10. Kramer argues that pretrial statements made by him in two interrogations following his arrest should have been suppressed because he had requested an attorney during the standoff. Kramer and a deputy sheriff had the following exchange over the radio during the standoff:

KRAMER: Have you arrested [the tree trimmers]?
DEPUTY: No, the [trimmers] have been taken from here. They're no longer here.
KRAMER: In jail?
DEPUTY: No, they're not in jail. Getting statements from them which we gotta get from you too.
KRAMER: Well, bring your paper up here. Get me an attorney.
DEPUTY: 10-9? I didn't hear you.
KRAMER: Bring me an attorney too.
DEPUTY: All right, when we're ready with the phone. I'll give you a call.

¶ 11. Kramer was not provided with an attorney during the standoff or later that day when he was arrested and taken into custody. Once in custody, Kramer was interrogated twice. Before both interrogations Kramer was read his Miranda rights and given a written Miranda form to review. Both times he waived his rights, including his right to counsel, and agreed to speak with agents.

¶ 12. Kramer contends his request for an attorney during the standoff served as a valid invocation of his Fifth Amendment right to counsel and therefore the admission at trial of statements he made in the subsequent interrogations violated Edwards. The State argues that this request for counsel was not made while Kramer was "in custody," and that a criminal defendant who is not in custody cannot anticipatorily invoke Miranda rights. Therefore, according to the State, his later statements made under interrogation were properly admitted. We agree with the State.

¶ 13. Hassel is dispositive here. In Hassel the defendant moved the court to suppress his post-Mirandized inculpatory statements made during a custodial interrogation. Hassel, 280 Wis. 2d 637, ¶¶ 3, 5. Hassel alleged that his pre-custodial statement "I can't talk to you," was a proper invocation of his right to silence under Miranda, and that therefore his ensuing incriminating statements made during custodial interrogation should have been suppressed. Id., ¶¶ 5, 8. Observing that Miranda safeguards apply only to custodial interrogations and that Hassel did not argue he was in custody when he invoked his right to silence, we concluded Hassel "was not entitled to invoke Miranda" during the pre-custodial interview with police. Id., ¶¶ 9-10.

¶ 14. Applying the general rule in Hassel to this case, we conclude Kramer's pre-custody invocation of his right to counsel was not an invocation of his right to counsel under Miranda and therefore his ensuing post-Mirandized inculpatory statements made while undergoing custodial interrogation need not be suppressed. As in Hassel, Kramer does not dispute the State's assertion that he was not in custody when he asked the police to get him a lawyer. Arguments not refuted are generally deemed admitted. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). Moreover, Kramer does not suggest, and we cannot think of, any reason not to apply Hassel here. Instead, Kramer asserts, relying on Smith v. Illinois, 469 U.S. 91 (1984), that he could have anticipatorily invoked his right to counsel at any time during the "process." Kramer's reliance on Smith is misplaced, as that case does not address the noncustodial anticipatory invocation of a Miranda right.

¶ 15. Our holding here, however, is not meant to suggest that there are no exceptions to the general rule that a defendant may not anticipatorily invoke Miranda. For example, there might be situations where a request for counsel at the conclusion of a standoff situation is so intertwined with imminent interrogation that the invocation should be honored. That did not occur here.

II. Electronic Recording

¶ 16. Kramer next argues that his statements made in the two interrogations should have been suppressed because law enforcement failed to make electronic recordings of the interrogations, even though the interrogation room was equipped with working video equipment. We disagree.

¶ 17. Kramer first argues that we should adopt a general exclusionary rule mandating the exclusion of statements made by adults during police interrogations if the interrogation is not electronically recorded. Kramer asserts we should impose this rule "based on the State's high court's supervisory power." Kramer is asking us to extend to adults the rule established by the Wisconsin Supreme Court in State v. Jerrell C.J., 2005 WI 105, ¶¶ 47-59, 283 Wis. 2d 145, 699 N.W.2d 110, making inadmissible at trial some unrecorded statements made by juveniles during custodial interrogations. The supreme court in Jerrell established this rule pursuant to its broad superintending and supervisory authority over the court system granted to it under article VII, section 3 of the Wisconsin Constitution. The supreme court's supervisory or superintending authority is " 'as broad and as flexible as necessary to insure the due administration of justice in the courts of this state,'" and it includes the power to" 'control the course of ordinary litigation in the lower courts of Wisconsin.'" Jerrell, 283 Wis. 2d 145, ¶ 69 (Abrahamson, C.J., concurring). In comparison, the Wisconsin Constitution grants this court supervisory authority "over all actions and proceedings in the courts in the district." Wis. Const, art. VII, § 5(3). Whatever the precise limits on our supervisory authority, Kramer fails to persuade us we have the authority to adopt the sort of sweeping new exclusionary rule he proposes.

¶ 18. Kramer next argues that the failure to record an interrogation of an adult is a violation of due process under both the United States and Wisconsin Constitutions. Kramer's due process argument relies on three cases: Jerrell, State v. Scales, and Stephan v. State. The first two, Jerrell and Scales, provide no support for Kramer's due process argument. Rather, both cases are examples of a state's highest court adopting a rule in its supervisory capacity, an issue we address above.

¶ 19. The other case Kramer relies on is the Alaska Supreme Court's decision in Stephan. However, Kramer merely cites Stephan-, he does not provide a due process analysis and he does not respond to the State's detailed due process analysis. Because Kramer's argument is insufficiently developed, we do not address its merits.

¶ 20. In summary, we reject Kramer's arguments. Kramer fails to persuade us we have the authority to grant the relief he seeks, and his due process argument is insufficiently developed to merit a response.

III. Right to Present a Defense

¶ 21. Finally, Kramer argues that the trial court denied him his constitutional right to present a defense when it excluded testimony of Charles Roberts, a longtime friend of Kramer's. He contends that Roberts would have provided testimony supporting his imperfect self-defense theory that Kramer mistrusted and feared the local sheriffs department. The trial court excluded Roberts's testimony on the grounds that evidence of Kramer's fear and distrust of the Adams County Sheriffs Department was irrelevant to the issue of whether Kramer actually believed he faced great imminent danger or bodily harm and that it was necessary to use deadly force when he shot at Deputy Shannon and Captain Coronado. We need not decide whether the circuit court was in error by excluding Roberts's testimony because we conclude that, even assuming the court violated Kramer's right to present a defense, such error was harmless.

¶ 22. The right to present a defense is grounded in the confrontation and compulsory process clauses of the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution and includes the right to present the testimony of favorable witnesses. See State v. Pulizzano, 155 Wis. 2d 633, 645-46, 456 N.W.2d 325 (1990). Our determination of whether the State denied Kramer his right to present a defense is a question of constitutional fact that we determine independently of the circuit court. State v. Shomberg, 2006 WI 9, ¶ 26, 288 Wis. 2d 1, 709 N.W.2d 370.

¶ 23. At trial, Kramer asserted he acted in self-defense, and the jury was instructed on imperfect self-defense. A successful defense based on imperfect self-defense reduces first-degree intentional homicide to second-degree intentional homicide. The test is subjective; a defendant must present "evidence of actual beliefs that [he] was in imminent danger of death or great bodily harm and that the force [he] used was necessary to defend [himself]." State v. Head, 2002 WI 99, ¶ 124, 255 Wis. 2d 194, 648 N.W.2d 413; see also Wis. Stat. § 940.01(2)(b) (2003-04). A defendant may use what is referred to as McMorris evidence to establish a factual basis to support an imperfect self-defense claim. Head, 255 Wis. 2d 194, ¶ 122. This evidence may be relevant to a defendant's state of mind and whether the defendant actually believed that he was in imminent danger of death or great bodily harm, "or that [he] needed to use a given amount of defensive force to prevent or terminate the unlawful interference." Id., ¶ 123.

¶ 24. Kramer sought to introduce Roberts's testimony concerning various conversations he had had with Kramer about various acts of misconduct and violence by members of the Adams County Sheriffs Department prior to March 7, 2003. In an offer of proof, Roberts testified about several incidents that caused him and Kramer to be concerned about the violent nature of the Adams County Sheriffs Department. The first incident took place a number of years prior to the shooting here when an Adams County deputy and an officer from another county conducted a traffic stop and allegedly shot and wounded a man. The second incident involved an Adams County deputy sheriff who pulled a gun on Roberts's mother-in-law. According to Roberts, his mother-in-law told him that she was holding a paring knife to cut asparagus when the deputy pulled his gun on her. The third incident concerned allegations made in federal criminal court that Adams County Sheriff Kenneth Bitsky abused jail inmates and intimidated a witness. Roberts and Kramer were aware of claims that Bitsky lied under oath to cover up the allegations. Finally, Roberts testified he and Kramer were concerned about certain Adams County deputies who "would be brought up on charges," were suspended with pay for several months, and then reinstated. According to Roberts, he and Kramer, in general, did not trust the Adams County Sheriffs Department.

¶ 25. Kramer argues that his right to present a defense was violated because the exclusion of Roberts's "crucial" testimony adversely affected his theory of imperfect self-defense. He argues that Roberts's testimony goes to Kramer's actual belief that the force he used was necessary, because this belief was based on his mistrust and fear of the members of the Adams County Sheriffs Department. Even assuming the court violated Kramer's right to present a defense by excluding this testimony, we conclude such error constituted harmless error.

¶ 26. The Supreme Court fashioned a "harmless-constitutional-error rule" in Chapman v. California, 386 U.S. 18, 22 (1967). The Court stated that although "there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error," not all "trial errors which violate the Constitution automatically call for reversal." Id. at 23. In Crane v. Kentucky, 476 U.S. 683, 691 (1986), the Court concluded that a violation of the right to present a defense is subject to harmless error analysis. See also United States v. Martin, 369 F.3d 1046, 1059 (8th Cir. 2004). The Chapman court held that for a federal constitutional error to be held harmless, "the court must be able to declare a belief that [the error] was harmless beyond a reasonable doubt." Chapman, 386 U.S. at 24. Our inquiry, therefore, is whether it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." Neder v. United States, 527 U.S. 1, 18 (1999); see also State v. Harvey, 2002 WI 93, ¶ 46, 254 Wis. 2d 442, 647 N.W.2d 189. "In other words, if it is 'clear beyond a reasonable doubt that a rational jury would have [rendered the same verdict] absent the error,' then the error did not 'contribute to the verdict,'" and is therefore harmless. Hannemann v. Boyson, 2005 WI 94, ¶ 57, 282 Wis. 2d 664, 698 N.W.2d 714 (quoting Neder, 527 U.S. at 15, 18).

¶ 27. Applying the harmless error analysis, we conclude it is clear beyond a reasonable doubt that the jury would still have found Kramer guilty of first-degree intentional homicide and attempted first-degree intentional homicide had it heard the excluded evidence. We have no doubt that the juiy would not have relied on this evidence to find that Kramer subjectively thought he was in such great danger of death or great bodily harm that he needed to retrieve a weapon and fire it at the officers.

¶ 28. Roberts's proffered testimony regarding the traffic stop incident does not inform us whether the shooting was unjustified or without good cause. Roberts's testimony on the second incident involving an officer pulling a gun on his mother-in-law lacks sufficient detail so as not to be helpful to the jury in determining whether Kramer acted in self-defense. And, like the first incident, Roberts offered no facts to assist the jury in determining whether the officer's conduct in pulling the gun on his mother-in-law was without good cause. Regarding conduct by Sheriff Bitsky, we are confident a reasonable jury would not have agreed with Kramer that the acts of one person, albeit the sheriff himself, represents how other officers in the department would act towards Kramer under the circumstances presented here.

¶ 29. Finally, Roberts's testimony does not suggest that Deputy Shannon or Captain Coronado were involved in any misconduct, or that Kramer had any knowledge that those officers had a reputation for violence. Roberts's testimony instead focuses on encounters between other officers and third parties, at best evincing a more general feeling about the department as a whole rather than providing insight into Kramer's state of mind. Yet, even from this viewpoint, Roberts's own testimony indicates that he and Kramer agreed that a majority of the deputies were good people. Roberts stated, "[A] number of situations in the past years . . . that concerned us because the majority of our deputies are really class people, really good people, and we were kind of concerned." Regardless of whether exclusion of Kramer's proffered evidence constituted a denial of his right to present a defense, the error did not affect the verdict. Therefore, any error in excluding this testimony was harmless.

CONCLUSION

¶ 30. We conclude pretrial statements made by Kramer were properly admitted because, under Hassel, non-custodial anticipatory invocation of the right to counsel need not be honored. We reject Kramer's request that we exercise supervisory authority to establish a rule requiring the suppression of evidence procured through non-recorded interrogations of adults. Finally, even assuming that the exclusion of Roberts's testimony violated Kramer's constitutional right to present a defense, we conclude such error was harmless. Accordingly, we affirm the judgment of conviction.

By the Court. — Judgment affirmed.

        Miranda v. Arizona, 384 U.S. 436 (1966).

        Edwards v. Arizona, 451 U.S. 477 (1981).

       Article I, section 8, subsection 1 of the Wisconsin Constitution also provides the right against self-incrimination. Historically, we have interpreted this provision to provide the same scope of protections as the Fifth Amendment to the United States Constitution. See State v. Jennings, 2002 WI 44, ¶ 39-42, 252 Wis. 2d 228, 647 N.W.2d 142. However, in State v. Knapp, 2005 WI 127, ¶ 73, 285 Wis. 2d 86, 700 N.W.2d 899, the Wisconsin Supreme Court departed from federal constitutional jurisprudence to expand the scope of the exclusionary rule under article I, section 8 to bar physical fruits obtained by a deliberate Miranda violation. Kramer does not develop an argument for why his statements should be excluded under Wisconsin's constitution.

       The legislature recently enacted 2005 Wis. Act 60, §§ 31, 40, establishing the policy "to make an audio or audio and visual recording of a custodial interrogation of a person suspected of committing a felony unless, a condition under section 972.115(2)(a)l. to 6. applies or good cause is shown for not making an audio or audio and visual recording of the interrogation." 2005 Wis. Act 60, § 31. The legislature enacted these provisions long after Kramer's interrogations in this case. Therefore, the relief provided in this act is not available to him. More specifically, the newly created Wis. Stat. § 972.115(2)(a) provides:
      If a statement made by a defendant during a custodial interrogation is admitted into evidence in a trial for a felony before a jury and if an audio or audio and visual recording of the interrogation is not available, upon a request made by the defendant as provided in s. 972.10(5) and unless the state asserts and the court finds that one of [certain] conditions applies or that good cause exists for not providing an instruction, the court shall instruct the jury that it is the policy of this state to make an audio or audio and visual recording of a custodiad interrogation of a person suspected of committing a felony and that the jury may consider the absence of an audio or audio and visual recording of the interrogation in evaluating the evidence relating to the interrogation and the statement in the case ....

       This issue was addressed and made part of the majority opinion. State v. Jerrell, 2005 WI 105, ¶ 61 n.16, 283 Wis. 2d 145, 699 N.W.2d 110.

       WISCONSIN Const, art. VII, § 5(3) grants the court of appeals supervisory authority "over all actions and proceedings in the courts in the district." Kramer does not argue we have the authority under this constitutional provision to provide the relief he seeks. Rather, he assumes this court's authority is identical to that of the supreme court, which of course finds no support in our constitution or other legal authority.

       The Fourteenth Amendment to the United States Constitution in pertinent part provides that "[n]o State shall... deprive any person of life, liberty, or property, without due process of law." U.S. Const, amend. XTV( § 1. Article 1, section 1 of the Wisconsin Constitution provides: "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted^ deriving their just powers from the consent of the governed." Wis. Const, art. I, § 1.

        State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994).

        Stephan v. State, 711 P.2d 1156, 1159 (Alaska 1985).

       In addition to the State's due process analysis, the State points out that Alaska is a minority of one on this topic by virtue of the Stephan ruling that the Alaska Constitution requires custodial interrogations be recorded. Stephan v. State, 711 P.2d 1156, 1159 (Alaska 1985). The State cites to State v. Cook, 847 A.2d 530, 542 (N.J. 2004), which lists thirty-one other states that have rejected the proposition that the federal due process clause or analogous state constitutional provisions require electronic recording of adult interrogations.

       Article I, section 7 of the Wisconsin Constitution provides in relevant part: "In all criminal prosecutions the accused shall enjoy the right... to meet the witnesses face to face; [and] to have compulsory process to compel the attendance of witnesses in his behalf...." Wis. Const, art. I, § 7. The Sixth Amendment to the United States Constitution provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor...." U.S. Const, amend. VI.

       Kramer's right to present a defense argument thus applies only to the homicide and attempted homicide charges and has no bearing on the theft from a person or corpse conviction.

       Wisconsin Stat. § 940.01 reads in pertinent part:
      First-degree intentional homicide. (1) Offenses, (a) Except as provided in sub. (2), whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony.
      (2) Mitigating Circumstances. The following are affirmative defenses to prosecution under this section which mitigate the offense to 2nd-degree intentional homicide under s. 940.05:

        (b) Unnecessary defensive force. Death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person, if either belief was unreasonable.
      All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

        McMorris v. State, 58 Wis. 2d 144, 150, 205 N.W.2d 559 (1973).

       In reaching this conclusion the Supreme Court, in summary fashion, referred to its earlier decision in Delaware v. Van Arsdall, 475 U.S. 673 (1986), where the Court extensively analyzed the question of whether a Sixth Amendment challenge to a trial court's denial of a defendant's right to cross-examine a witness for bias is subject to harmless error analysis. Id. at 681-84.

       Our conclusion here does not suggest that there are no circumstances under which a person should be permitted to admit evidence of mistrust and fear of a particular group as support for arguing imperfect self-defense against a member of that group.


author: CURLEY, J.

text:
    Linda T. Peterson, Plaintiff-Appellant, v. Cornerstone Property Development, LLC, Defendant-Respondent.
    Court of Appeals

      No. 2004AP3358.

      Oral argument May 23, 2006.

      —Decided June 13, 2006.

    2006 WI App 132
    (Also reported in 720 N.W.2d 716.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Jordan B. Reich of Kohner, Mann & Kailas, S.C., of Milwaukee, with oral argument by Jordan B. Reich.

    On behalf of the defendant-respondent, the cause was submitted on the brief of Nathaniel Cade, Jr., of Michael Best & Friedrich, LLP, of Milwaukee, with oral argument by Nathaniel Cade Jr.

    Before Fine, Curley and Kessler, JJ.
   CURLEY, J.

¶ 1. Linda T. Peterson appeals from a judgment, awarding her $3,388.50 in damages for breach of contract, and awarding Cornerstone Property Development LLC (Cornerstone) $3,594.93 in costs, in a suit involving Peterson's purchase of an unfinished condominium unit from Cornerstone. On appeal, Peterson raises two issues: (1) the trial court's grant of partial summary judgment to Cornerstone, following the court's grant of Cornerstone's motion to reconsider, dismissing her claim based on a violation of Wis. Stat. § 100.18(1) (2003-04) ; and (2) the trial court's grant of Cornerstone's motion in limine to exclude evidence of consequential damages with respect to her breach of contract claim.

¶ 2. Peterson asserts that the trial court erred in granting Cornerstone's motion to reconsider, arguing that her Wis. Stat. § 100.18(1) claim is not barred by the economic loss doctrine or the contract's integration clause. Peterson also contends that the trial court erred in granting Cornerstone's motion in limine to exclude evidence of consequential damages, arguing that although she agreed to purchase her condominium "as is," more specific provisions of the contract conflict with the "as is" provision and must be given effect, making consequential damages recoverable for breach of a more specific provision.

¶ 3. We conclude that the integration clause bars Peterson from pursuing a claim under Wis. Stat. § 100.18(1), and that the contract's "as is" clause is limited by the contract's Limited Warranty which, if breached, does permit Peterson to pursue a claim for consequential damages. Accordingly, the judgment is affirmed with respect to the Wis. Stat. § 100.18(1) claim, and reversed in part with respect to consequential damages.

I. Background.

¶ 4. In August 2000, Peterson entered into a reservation agreement with Cornerstone, paying $2,000 for the right to make the first offer for the purchase of a luxury condominium located at 1801 North Commerce Street in Milwaukee. In April 2001, Peterson made an offer to purchase the condominium unit for $292,199.89, and in May, Cornerstone made a counter-offer which Peterson accepted. The closing took place on May 18, 2001. The counter-offer, consisting of multiple documents, together with Peterson's offer, became the purchase contract between Peterson and Cornerstone.

¶ 5. Peterson agreed to purchase the condominium at a reduced price "in an 'as is' condition." She agreed to complete the construction herself, and she knew that a certificate of occupancy would not be issued until the construction was complete. Prior to the closing, Peterson was given the opportunity to inspect the property.

¶ 6. Exhibit E contained a "Limited Warranty," promising that for one year the unit would be free from "latent defects due to faulty materials or workmanship," that is, defects not apparent at the time of the closing or completion of the work, but that become apparent before the expiration of the warranty. If such latent defects were discovered, Cornerstone would have the choice to either make the repairs or replace the defective item. With the exception of the Limited Warranty, Peterson specifically agreed to "waiveD any claim against the Seller for patent or latent defects in construction of the Property."

¶ 7. The contract included an integration clause, expressed in three separate provisions, excluding all prior negotiations from the contract and specifying that only the text contained in the written documents constituted the actual contract. First, in what was originally part of Peterson's offer, the contract provided: "ENTIRE CONTRACT This Offer, including any amendments to it, contains the entire agreement of the Buyer and Seller regarding the transaction. All prior negotiations and discussions have been merged into this Offer." Next, Exhibit D, which was part of Cornerstone's counter-offer, provides: "Seller has made no representations other than written in this offer and attached documents concerning the property." Finally, Exhibit F contained the following language:

The Buyer acknowledges, subject to the Limited Warranty contained in Exhibit E ..., that, to the fullest extent permitted by law,... (c) other than those written representations concerning the condition of the Property contained in the Condominium Offer to purchase, including the Exhibits annexed thereto, she has not relied on any representations made by the Seller in entering into the Condominium Offer to Purchase ....

¶ 8. In addition, Revised Exhibit A provided a list of tasks which Cornerstone agreed to fulfill prior to or at the closing, including completing certain unfinished tasks, making certain repairs, and supplying certain materials. Peterson and Cornerstone agreed that should Cornerstone fail to fulfill those obligations, Peterson would receive 150% of the cost of the work and materials. Cornerstone failed to provide the work and materials, and at the closing, the parties agreed that the value of the materials and work that Cornerstone had failed to provide was $2,259.00. Cornerstone made an offer for 150% of $2,259.00, amounting to a total of $3,388.50. Peterson rejected the offer.

¶ 9. According to Peterson, Cornerstone made certain representations to her to induce her to purchase the unit, on which she relied in making her decision to buy it, including: that the property was fit for its intended purpose, well constructed, and, upon completion, ready for occupancy. According to Peterson, the unit did not meet these criteria, and was instead "poorly designed and constructed," and caused her to he unable to complete the required construction. Having failed to complete the construction, Peterson was unable to obtain a certificate of occupancy, and was therefore unable to move into the condominium.

¶ 10. On April 26, 2002, Peterson filed suit against Cornerstone, alleging five different causes of action. Her complaint alleged breach of contract for Cornerstone's failure to provide a unit that was "well constructed, fit for its intended purpose and, except for final completion, ready for occupancy," and for failure to provide the materials and make the repairs as agreed, prior to or at the closing. As a result of the alleged breaches, Peterson claimed she had "sustained damages, including consequential damages, in an amount to be determined." Peterson's complaint also alleged claims of negligent, intentional and strict responsibility misrepresentation. Lastly, she also claimed that Cornerstone had engaged in false advertising by making representations and omissions that were "untrue, deceptive or misleading," in violation of Wis. Stat. § 100.18(1).

¶ 11. Cornerstone filed an answer denying the allegations and asserting a number of affirmative defenses, including that: (1) Peterson's complaint had failed to state a claim upon which relief may be granted; (2) Peterson had failed to mitigate damages; (3) Peterson's misrepresentation and Wis. Stat. § 100.18(1) claims were barred by the economic loss doctrine; and (4) Peterson's claims were barred by her own breach of contract because she accepted the condominium "as is," subject only to the Limited Warranty and the delivery of certain materials and work, yet she refused to accept Cornerstone's offer for the materials and work, in the amount agreed to in the contract.

¶ 12. Following extensive discovery, Cornerstone moved for summary judgment, arguing that: (1) the integration clause bars Peterson's claims of misrepresentation; (2) the economic loss doctrine bars all claims for misrepresentation; (3) Peterson's remedies under the contract are limited to those provided by the Limited Warranty and the value of the unsupplied materials agreed to at the closing; and (4) Cornerstone did not violate Wis. Stat. § 100.18(1) because Peterson must demonstrate an "untrue, deceptive or misleading" advertisement or announcement and Cornerstone did not make any such statements.

¶ 13. Peterson filed a response, arguing that: (1) a genuine issue of material fact existed; (2) the economic loss doctrine does not bar all claims of misrepresentation because it does not apply to intentional or strict responsibility misrepresentation; (3) the integration clause does not bar claims of misrepresentation; (4) her contract remedies are not limited to the Limited Warranty; and (5) pre-contract representations are actionable under Wis. Stat. § 100.18(1) and the economic loss doctrine does not apply to § 100.18(1) actions.

¶ 14. On March 31, 2003, the trial court denied Cornerstone's motion for summary judgment. The court was not convinced that the economic loss doctrine barred intentional misrepresentation or strict responsibility claims, and ruled that Peterson was not limited to her breach of contract claim. The court noted that summary judgment was also not appropriate because "integration clauses which negate the existence of any representation not incorporated into the contract may not be used to escape liability for misrepresentations."

¶ 15. On June 3, 2003, the supreme court issued its decision in Digicorp, Inc. v. Ameritech Corp., 2003 WI 54, 262 Wis. 2d 32, 662 N.W.2d 652. Soon thereafter, Cornerstone filed a motion to reconsider the court's denial of its motion for summary judgment, maintaining that because Digicorp recognized that a fraud in the inducement exception to the economic loss doctrine applies only when the "fraud is extraneous to, rather than interwoven with, the contract," 262 Wis. 2d 32, ¶ 47, and because here the alleged misrepresentation is interwoven with the contract, Peterson's intentional misrepresentation claim is barred by the economic loss doctrine. Cornerstone also argued that the court had misapplied the law in concluding that the integration clause did not bar non-contract claims and maintained that it bars false advertising claims under Wis. Stat. § 100.18(1).

¶ 16. Peterson filed a response, arguing that her situation falls under the fraud in the inducement exception outlined in Digicorp because before she entered into the contract, "certain representations were made that were and are not addressed in the contract." She also asserted that Cornerstone misreads the law because integration clauses may not be used to escape liability under Wis. Stat. § 100.18(1).

¶ 17. On October 7, 2003, the court issued a written decision and order granting Cornerstone's motion to reconsider. The court concluded that Peterson's intentional misrepresentation claim was barred by the economic loss doctrine as explained in Digicorp, and that her Wis. Stat. § 100.18 claim was barred by the integration clause, granting Cornerstone summary judgment as to those claims. The court explained that Peterson could still pursue a breach of contract claim.

¶ 18. Meanwhile, Cornerstone had also filed a motion in limine to exclude evidence of consequential damages with respect to the breach of contract claim because Peters on purchased her condominium "as is" and had agreed that the total amount of damages for failure to supply the required materials and work was $3,388.50. Cornerstone submitted that the court should limit Peterson's contractual damages to $3,388.50 because her inability to gain occupancy of her condominium was due to her own inaction, not Cornerstone's action, and because she has failed to adequately itemize the alleged damages.

¶ 19. Peterson responded by arguing that consequential damages are available, irrespective of the "as is" clause, both for the cost to complete the condominium and as damages for her inability to use it, because the contract is ambiguous. In a supplemental brief, Peterson referred to the tasks, repairs and materials listed in Revised Exhibit A and the Limited Warranty promising that the unit would be free of latent defects and claimed that Cornerstone had failed to meet those obligations, amounting to a breach, that entitles her to recover consequential damages.

¶ 20. Cornerstone filed a supplemental brief in support of its motion in limine, reiterating its position that Peterson is owed only $3,388.50 and that consequential damages for the cost to complete the unit or for her inability to use her condominium are barred by Peterson's failure to mitigate damages, the "as is" clause, and other provisions of the contract that expressly preclude such claims.

¶ 21. On July 21, 2004, the court issued a decision and order granting Cornerstone's motion in limine to exclude evidence of consequential damages for the breach of contract claim. The court explained that a party could recover consequential damages if they were "proximately caused by" or "flowed naturally from" the breach and were within the contemplation of the parties at the time they entered into the contract. The court observed, however, that because this was an "as is" contract, the items a buyer may recover as consequential damages is limited, and concluded that because none of the items for which Peterson sought damages were included in the contract, such evidence was barred by the "as is" clause. The court also rejected Peterson's claim that the contract was ambiguous.

¶ 22. With only the breach of contract claim remaining, and as a result of the court excluding evidence of consequential damages, the parties stipulated to the damages being $3,388.50 and judgment was entered against Cornerstone for that amount, and Cornerstone was awarded $3,594.93 in costs. This appeal follows.

II. Analysis.

¶ 23. On appeal, Peterson pursues two issues: (1) whether the trial court erred in dismissing her claim based on a violation of Wis. Stat. § 100.18(1); and (2) whether the trial court erred in excluding evidence of consequential damages with respect to her breach of contract claim.

A. Wisconsin Stat. §100.18(1)

¶ 24. Peterson contends that the trial court erred in granting Cornerstone's motion to reconsider, dismissing her claim under Wis. Stat. § 100.18, because it erroneously concluded that the economic loss doctrine and the contract's integration clause bar a § 100.18(1) claim.

¶ 25. We review the grant or denial of a summary judgment de novo, employing the same methodology as the trial court. Spring Green Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). Summaiy judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. at 315; Wis. Stat. § 802.08(2).

¶ 26. Wisconsin Stat. § 100.18, entitled "Fraudulent representations," protects the public from all "untrue, deceptive or misleading" representations made in sales and promotions, including representations made in face-to-face sales. See, e.g., State v. Automatic Merchandisers of Am., Inc., 64 Wis. 2d 659, 665, 221 N.W.2d 683 (1974); Bonn v. Haubrich, 123 Wis. 2d 168, 173, 366 N.W.2d 503 (Ct. App. 1985).

¶ 27. Peterson first responds to the trial court's conclusion that her Wis. Stat. § 100.18 claim is barred by the economic loss doctrine by pointing to Kailin v. Armstrong, 2002 WI App 70, 252 Wis. 2d 676, 643 N.W.2d 132, which explicitly held that the economic loss doctrine does not bar § 100.18 claims. Kailin, 252 Wis. 2d 676, ¶¶ 2, 43. In her reply, Peterson emphasizes the timing of when the allegedly misleading statements were made and asserts that "if Cornerstone made the representations asserted by Ms. Peterson in inducing her to purchase the condominium it is actionable under Wis. Stat. 100.18(1)," and that to prevail she must show only "that as a covered member of the class the statute protects, Cornerstone [,] in inducing her to purchase the condominium[,] made a representation or representations which were untrue, deceptive or misleading resulting in her suffering damages."

¶ 28. Addressing the trial court's second reason for dismissing her Wis. Stat. § 100.18 claim, Peterson submits that the integration clause does not bar a § 100.18 claim because "[integration clauses cannot be used to escape liability for misrepresentations." She relies heavily on Grube v. Daun, 173 Wis. 2d 30, 496 N.W.2d 106 (Ct. App. 1992) for support, and cites it for the proposition that "integration clauses do not negate representations which are not part of the written contract" (underlining by Peterson). In her reply, continuing to cite Grube, she asserts that the integration clause "cannot eliminate the protection [of] this statute and the remedy it affords" because "[t]he purpose of Wis. Stat. 100.18(1) is to protect individuals such as Ms. Peterson from just the type of untrue, deceptive and misleading misrepresentations she alleges were made to her by Cornerstone."

¶ 29. Cornerstone responds by first conceding that the economic loss doctrine does not bar a Wis. Stat. § 100.18 claim and that an integration clause does not bar a misrepresentation claim, but asserts that in arguing that integration clauses cannot be used to escape liability for misrepresentation, Peterson mistakenly combines her § 100.18 claim, the subject of this appeal, with her misrepresentation claim, which she elected not to appeal, "to argue incorrectly as to the integration clause's ability to bar a [§ 100.18] claim." Cornerstone asserts that Peterson's reliance on Grube heightens her error of combining the § 100.18(1) and misrepresentation claims because, unlike Peterson's contract, which explicitly precludes a reliance on a representation that is allegedly untrue, deceptive or misleading, the integration clause in Grube dealt with the phrase "as is." Cornerstone submits that the integration clause here bars § 100.18(1) claims because Peterson never alleged that "oral representations" were incorporated into the contract to vary the terms of the written documents, and because there is no case law stating that an integration clause does not bar a § 100.18 claim.

¶ 30. We begin by noting that Peterson correctly asserts, and Cornerstone properly concedes, that a Wis. Stat. § 100.18(1) claim is not barred by the economic loss doctrine under Kailin, 252 Wis. 2d 676, ¶ 43 ("We conclude the economic loss doctrine does not apply to claims under Wis. Stat. 100.18."). We therefore need not address the economic loss doctrine further. Consequently, the only issue before us is whether the contract's integration clause bars a § 100.18(1) claim. We conclude that it does.

¶ 31. The general rule is that when a contract includes an integration clause, evidence of contemporaneous or prior oral agreements relating to the same subject matter are not admissible. Matthew v. American Family Mut. Ins. Co., 54 Wis. 2d 336, 341-42, 195 N.W.2d 611 (1972). In conjunction with the parol evidence rule, an integration clause generally bars the introduction of extrinsic evidence to "vary or contradict the terms of a writing." Ziegler Co. v. Rexnord, Inc., 139 Wis. 2d 593, 608-09 n.11, 407 N.W.2d 873 (1987). Absent claims of duress, fraud, or mutual mistake, integration clauses are given effect. See, e.g., Matthew, 54 Wis. 2d at 341-42 (giving effect to integration clause).

¶ 32. In Grube, cited by Peterson, this court discussed the applicability of integration clauses. Grube involved the sale of a farm in an "as is" condition, where the purchasers sued the real estate broker, seller, previous owner, and the previous owner's liability insurer for making allegedly untrue assertions about the property and for failing to disclose the existence of an underground gasoline tank that was later found to have caused groundwater contamination. Id., 173 Wis. 2d at 46-47. The purchasers alleged negligence, intentional misrepresentation, strict liability for misrepresentation, negligent misrepresentation and deceptive or misleading advertisement in violation of Wis. Stat. § 100.18. Grube, 173 Wis. 2d at 47-48. The trial court granted summary judgment on all five counts and the purchasers appealed. Id. at 49.

¶ 33. On appeal, this court discussed the integration clause, phrased as an "as is" clause, and addressed the question of "whether an 'as is' clause shields the seller and his agent only from breach of warranty claims in contract, or also from tort claims based on misrepresentation." Id. at 59. We acknowledged that "Wisconsin follows the general rule that integration clauses which negate the existence of any representations not incorporated into the contract may not be used to escape liability for the misrepresentations!!,]" id. at 59-60, ultimately reversing the order granting summary judgment on the misrepresentation claim, id. at 62.

¶ 34. In another discussion, separate from our analysis involving the "as is" clause, we addressed the remaining cause of action based on a violation of Wis. Stat. § 100.18. We concluded that the defendants had not provided any basis for a prime facie defense and therefore also allowed that claim to go forward. Grube, 173 Wis. 2d at 62-63.

¶ 35. Peterson's reliance on Grube is misplaced. She apparently fails to realize that although Grube did involve a Wis. Stat. § 100.18(1) claim, the portions she cites for support address the applicability of the "as is" clause as a bar to common law misrepresentation claims, not a § 100.18 claim. See Grube, 173 Wis. 2d at 59. Because Peterson elected not to appeal her misrepresentation claims, she cannot now rely on Grubés holding that integration clauses do not bar misrepresentation claims to support her arguments that she should be allowed to bring a § 100.18 claim.

¶ 36. However, even if the holding from Grube is applied to Peterson's statutory claim, Grube is still easily distinguishable because Peterson overlooks an important distinction between the integration clause in her contact and the one in Grube. In Grube, we noted that to be effective, disclaimers in the form of integration clauses will not be honored, as matter of public policy, unless the disclaimer is specific as to the tort that is being disclaimed and the disclaimer makes it "apparent that an express bargain was struck to forego the possibility of tort recovery in exchange for negotiated alternative economic damages." 173 Wis. 2d at 60 (citing Phillips Petroleum Co. v. Bucyrus-Erie Co., 131 Wis. 2d 21, 33, 388 N.W.2d 584 (1986)). Stated differently, although exculpatory clauses are closely scrutinized and void if they violate public policy, Mettler ex rel. Burnett v. Nellis, 2005 WI App 73, ¶ 13, 280 Wis. 2d 753, 695 N.W.2d 861, they are enforceable so long as they "clearly, unambiguously, and unmistakably inform the signer of what is being waived," Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 84, 557 N.W.2d 60 (1996).

¶ 37. The integration clause in Grube was merely an "as is" clause, stating: "Buyer is buying the property in a [sic] as is condition without any warranties." Grube, 173 Wis. 2d at 47 (bracketing in Grube). In Peterson's contract, by contrast, three different provisions expressed that all prior negotiations were excluded and that only the text of the written documents constituted the contract: "This Offer, including any amendments to it, contains the entire agreement of the Buyer and Seller regarding the transaction. All prior negotiations and discussion have been merged into this Offer"-, "Seller has made no representations other than written in this offer and attached documents concerning the property"; and finally:

The Buyer acknowledges, subject to the Limited Warranty contained in Exhibit E .. . (c) other than those written representations concerning the condition of the Property contained in the Condominium Offer to purchase, including the Exhibits annexed thereto, she has not relied on any representations made by the Seller in entering into the Condominium Offer to Purchase ....

(Emphasis added.) Thus, unlike the clause in Grube, the integration clause here specifically disclaims the purchaser's right to rely on any alleged fraudulent misrepresentations. Indeed, the three provisions of Peterson's contract that expressly stated that the written contract made up the entire contract, to the exclusion of all other provisions, provide exactly the kind of specific disclaimer that makes it apparent that an express bargain had been struck. See Grube, 173 Wis. 2d at 60. With an integration clause, worded as clearly and unmistakably as the one in question, we see no reason not to give the integration clause its intended effect.

¶ 38. We are also not convinced by Peterson's emphasis on the timing of the alleged statements and her argument that they occurred before the purchase was completed and that she therefore was induced into purchasing the condominium. In addition to being precluded by the reasons already discussed, she appears to misstate the applicable law. In Grube, we concluded that "while the 'as is' [integration] clause is not a complete bar" to claims of negligence and misrepresentation, unless the seller makes affirmative misrepresentations, the clause shifts the burden to the buyer to determine the condition of the property:

[T]he "as is" clause put[s] the burden upon a buyer to determine the condition of the property purchased. This shifting of the burden, with nothing more, protects a seller and his or her agent from claims premised upon nondisclosure. But we hold that once the seller or his agent has made an affirmative representation about some aspect of the property, the buyer is entitled to rely upon that statement and expect full and fair disclosure of all material facts relating to that aspect of the property.

Id. at 61 (citations omitted; emphasis in original). In Grube, the defendants made an untrue statement about wells that turned out to be contaminated, and it was this affirmative representation that constituted a viable Wis. Stat. § 100.18 claim. Grube, 173 Wis. 2d at 62.

¶ 39. Here, Peterson does not dispute that she was given the opportunity, and in fact did, inspect the property prior to entering into the purchase contract. She therefore had to show that Cornerstone made affirmative representations upon which she relied. Un like the situation in Grube, Peterson never provided affidavits alleging that she inquired about the property, and that Cornerstone made an affirmative representation in response to her inquiry. She likewise never provided affidavits alleging that she did not get the property in the condition in which she agreed to purchase it. In fact, Peterson continually states only that Cornerstone made "representations and omissions" that entitle her to relief under Wis. Stat. § 100.18(1), but she fails to specify what those alleged representations or omissions were or even reference portions of the record to indicate exactly what she is referring to. Because Peterson chose to go forward with the closing, having inspected the property, and because she has failed to identify the representations that she alleges were false, she cannot now allege false advertising.

¶ 40. Accordingly, the integration clause governs and bars Peterson's claim under Wis. Stat. § 100.18(1).

B. Consequential Damages

¶ 41. Peterson also contends that the trial court erred in granting Cornerstone's motion in limine to exclude evidence of consequential damages regarding her breach of contract claim because it erroneously concluded that the fact that she purchased her condominium "as is" bars consequential damages.

¶ 42. "We review a circuit court's decision to admit or exclude evidence under an erroneous exercise of discretion standard." Martindale v. Ripp, 2001 WI 113, ¶ 28, 246 Wis. 2d 67, 629 N.W.2d 698 (citations omitted). However, when the exercise of such discretion turns upon a question of law, we review the question de novo, benefiting from the trial court's analysis. Gulmire v. St. Paul Fire & Marine Ins. Co., 2004 WI App 18, ¶ 10, 269 Wis. 2d 501, 674 N.W.2d 629. Here, we are asked to interpret the purchase contract to determine whether it allows for the recovery of consequential damages, which is a question of law. See Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 460, 405 N.W.2d 354 (Ct. App. 1987). Whether the terms of a written contract are ambiguous is also a question of law that we review de novo. Wisconsin Label Corp. v. Northbrook Prop. & Cas. Ins. Co., 2000 WI 26, ¶ 24, 233 Wis. 2d 314, 607 N.W.2d 276.

¶ 43. Peterson contends that she should be allowed to introduce evidence of consequential damages because she asserts that, as a result of Cornerstone's breach of contract, she is entitled to recover such damages. She maintains that Cornerstone breached the contract by failing to: provide a unit fit for its intended purpose, well constructed and upon her completion ready for occupancy; perform repairs and construction and provide materials prior to or at the closing, as agreed in Revised Exhibit A; provide a unit free from latent defects, as promised in the Limited Warranty; and assume the responsibilities agreed upon in the Limited Warranty in the event a latent defect was discovered. Peterson asserts that these breaches and failures entitle her to recover consequential damages.

¶ 44. Responding to whether the contract's "as is" clause bars her from recovering consequential damages, Peterson submits that the contract is ambiguous because it contains an "as is" clause, as well as a Limited Warranty, and a clause assuring that Cornerstone would fulfill certain obligations prior to or at the closing (Revised Exhibit A), and that the these conflicting provisions cannot be applied harmoniously. Peterson notes that while Cornerstone could have inserted an "as is" clause without a warranty or promising to meet other obligations, or provided specific disclaimers effecting warranties and damages, Cornerstone did not. Peterson further submits that the only way to harmonize these provisions is by giving meaning to either the "as is" clause or the Limited Warranty and Revised Exhibit A, and citing Goldmann Trust v. Goldmann, 26 Wis. 2d 141, 131 N.W.2d 902 (1965), for the proposition that "[s]pecific provisions of a contract take precedence over conflicting general provisions," she argues that the "as is" clause cannot be given meaning. Referring to the "as is" clause as a "poor boilerplate effort... to shift responsibility" to her, Peterson asserts that:

The "as is" clause has no realistic meaning or effect given the specific provisions of Revised Exhibit A and Exhibit E. These specific provisions must be given effect for them to be meaningfully enforceable contractual provisions. These provisions either created an exception to the "as is" clause or negated it completely. Cornerstone's breach of either or both gave rise to a breach of contract claim for which consequential damages are recoverable.

¶ 45. Cornerstone responds that the trial court correctly barred Peterson from introducing evidence of consequential damages, and that the only money Peterson should recover is the $3,388.00 the parties agreed to at the closing.

¶ 46. Cornerstone first notes that Peterson fails to identify the damages she believes constitute consequential damages. Cornerstone then maintains that the contract itself explicitly limits her right to collect consequential damages for several reasons: with the exception of the items identified in the Limited Warranty, it bars her from recovering damages for patent and latent defects in the construction of the property; Peterson herself agreed at the closing that Cornerstone had no additional obligations to her, including the supply of labor, except those specifically agreed to in Revised Exhibit A; and the "as is" clause bars consequential damages because an "as is" clause puts the burden on a buyer to determine the condition of the property purchased.

¶ 47. We begin by addressing the "as is" clause and by examining whether the contract is ambiguous. In Omernik v. Bushman, 151 Wis. 2d 299, 444 N.W.2d 409 (Ct. App. 1989), we held that "[a]n 'as is' clause in a real estate contract puts the burden upon a buyer to determine the condition of the property purchased." Id. at 303. Similarly, as already noted in our discussion about the integration clause, Grube affirmed the same principle. 173 Wis. 2d at 61. We agree with Peterson that the contract's more specific provisions, the Limited Warranty and Revised Exhibit A, do conflict with the "as is" clause, and we further agree that under Goldmann, the Limited Warranty and Revised Exhibit A should be given meaning. We disagree with Peterson, however, that the existence of a Limited Warranty and the additional obligations set forth in Revised Exhibit A render the "as is" clause meaningless. We also disagree that a contract that sells a property "as is," yet provides a Limited Warranty and other obligations, is ambiguous: The only reasonable interpretation of this contract is that with the exception of the specific items covered by the Limited Warranty and Revised Exhibit A the condominium was sold "as is." See, e.g., Jones v. Jenkins, 88 Wis. 2d 712, 722, 277 N.W.2d 815 (1979) ("A contract provision which is reasonably and fairly susceptible to more than one construction is ambiguous."). With respect to Revised Exhibit A, because the parties specifically agreed at the closing that the amount owed was $3,388.00, we see no reason to further discuss that provision. With respect to the Limited Warranty, by contrast, we conclude that because the "as is" clause is limited by the warranty, the Limited Warranty, if breached, does indeed permit a claim for consequential damages.

¶ 48. Consequently, the items not covered by the Limited Warranty are subject to the "as is" provision, and with respect to those it was Peterson's responsibility to inspect the property prior to entering into the contract. See Omernik, 151 Wis. 2d at 303. Peterson, as mentioned, was given the opportunity and did inspect the condominium and is therefore precluded from claiming consequential damages for the items that fall under the "as is" clause. The question therefore becomes what the Limited Warranty covers.

¶ 49. First, a major problem with Peterson's argument is that in her appellate briefs she fails to specify what the damages she alleges stem from. Indeed, she fails to even provide a dollar amount. Earlier in the proceeding, however, Peterson had specified eleven different areas for which she was seeking consequential damages. Referring to the trial court's ruling excluding consequential damages, her brief-in-chief in fact references "eleven categories of Ms. Peterson's claimed damages," yet she fails to elaborate on what those categories are or explain whether she is still seeking consequential damages for those same categories. What seems to be the most recent list of consequential damages sought by Peterson appears in her Pretrial Report, also presented at a hearing on May 18, 2004, which indicates the following eight categories of damages: (1) mortgage payments of $1,670.00 per month since September 2001; (2) condominium dues since September 2001; (3) real estate taxes since September 2001; (4) storage fees since August 2001; (5) $28,432.28 for undelivered materials; (6) square footage adjustment due to Peterson's misunderstanding as to the size of the unit; (7) $33,373.00 to complete the unit; and (8) Peterson's share of any assessment to repair common elements. We will assume that these are still the damages currently sought by Peterson.

¶ 50. Assuming that Peterson is in fact still seeking the same damages she reported in her Pretrial Report, much of her claim is still problematic. In general, the amount of consequential damages to which a party is entitled "is limited to such damages as are the natural and probable consequences of the breach and were within contemplation of the parties when the contract was made." General Star Indem. Co. v. Bankruptcy Estate of Lake Geneva Sugar Shack, Inc., 215 Wis. 2d 104, 119-20, 572 N.W.2d 881 (Ct. App. 1997). The damages must "flow directly and necessarily from the breach of contract, and must be reasonably foreseeable at the time the contract was made as a probable result of the breach." Reiman Assocs., Inc. v. R/A Adver., Inc., 102 Wis. 2d 305, 321, 306 N.W.2d 292 (Ct. App. 1981); see also Wis JI — Civil 3710. In addition, under general principles of contract law, "[a]n injured party is entitled to the benefit of his agreement, which is the net gain he would have realized from the contract but for the failure of the other party to perform[,]" Thorp Sales Corp. v. Gyuro Grading Co., 111 Wis. 2d 431, 438-39, 331 N.W.2d 342 (1983), however, "[a] party is not entitled to be placed in a better position because of a breach than he would have if the contract had been performed," Hanz Trucking, Inc. v. Harris Bros. Co., 29 Wis. 2d 254, 268, 138 N.W.2d 238 (1965).

¶ 51. Here, the only contract provision that mentioned damages was the Limited Warranty, and therefore the only damages that Peterson may recover are ones resulting from "latent defects due to faulty materials or workmanship." Because these were the only damages contemplated by the parties at the time they entered into the contract, any other damages do not meet the definition of consequential damages. See General Sta r, 215 Wis. 2d at 119-20. It follows that damages for mortgage payments, condominium dues, real estate taxes, storage fees, square footage adjustment, and the cost to complete the unit, are not included as none of these come close to being covered by the Limited Warranty. Particularly baffling is Peterson's demand that she be compensated for the cost of completing the unit, since the contract explicitly provided that she would complete the construction, and it was clearly understood that she was allowed to purchase the unit for a lower price in exchange for completing the construction herself.

¶ 52. Nonetheless, because at this point it is unclear what exactly Peterson is seeking, we conclude that such general descriptions as undelivered materials — with the exception of those already covered by Revised Exhibit A — and Peterson's share of any assessment to repair common elements, could potentially qualify as "latent defects due to faulty materials or workmanship." Therefore, Peterson may pursue consequential damages under her breach of contract claim, with respect to damage stemming from the alleged breach of the Limited Warranty. We emphasize that only damages resulting from "latent defects due to faulty materials and workmanship" are included, and that this narrow definition in particular does not in-elude the cost to complete the property, mortgage payments, real estate taxes, storage fees, or the like.

¶ 53. Moreover, another important consideration in determining damages is that "[t]he party alleging breach of the contract has a duty to mitigate damages, that is, 'to use reasonable means under the circumstances to avoid or minimize the damages.'" Kramer v. Board of Educ. of the Sch. Dist. of the Menomonie Area, 2001 WI App 244, ¶ 13, 248 Wis. 2d 333, 635 N.W.2d 857 (citing Kuhlman, Inc. v. G. Heileman Brewing Co., 83 Wis. 2d 749, 752, 266 N.W.2d 382 (1978)). "An injured party cannot recover any item of damage that could have been, or was, avoided." Id.; see also Wis JI — Civil 1731. Cornerstone contends that Peterson failed to mitigate or even attempt to mitigate her alleged inability to use the condominium, and therefore should not be allowed to recover the consequential damages she seeks. For instance, to obtain a certificate of occupancy Peterson was required to install a kitchen sink, but apparently fearing that the sink would sustain damage from the yet to be completed construction, she refused to install the sink and is now claiming damages because she was unable to live in her condominium. Cornerstone notes that although she could have, for instance, covered up the sink, "Peterson made a conscious, yet expensive choice, to incur damages for her alleged inability to occupy the property." Because the law requires mitigation, should Peterson's breach of contract claim under the Limited Warranty succeed, in subsequently determining Peterson's damages, it will be necessary to determine whether she satisfactorily mitigated her damages.

¶ 54. In sum, we affirm the order dismissing Peterson's claim based on a violation of Wis. Stat. § 100.18; we affirm the judgment awarding Peterson $3,388.00 for breach for contract, for damages under Revised Exhibit A; and we reverse the order granting Cornerstone a motion in limine to exclude evidence of consequential damages under the breach of contract claim with respect to the Limited Warranty only, and affirm the order with respect to all other claims for damages.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Peterson's suit also initially included a claim against Timothy Dixon, the Cornerstone representative who handled the sale of the condominium; however, the parties subsequently stipulated to the voluntary dismissal of that claim without prejudice.

       Peterson originally sought consequential damages for eleven separate areas; however, her Pretrial Report and a hearing on May 18, 2004, reduced the damages that she sought, to the following eight areas: (1) mortgage payments of $1,670.00 per month since September 2001; (2) condominium dues since September 2001; (3) real estate taxes since September 2001; (4) storage fees since August 2001; (5) $28,432.28 for undelivered materials; (6) square footage adjustment due to Peterson's misunderstanding as to the size of the unit; (7) $33,373.00 to complete the unit; and (8) Peterson's share of any assessment to repair common elements. Whether this is an accurate list of the consequential damages that Peterson is still seeking is unclear because her briefs do not address the issue.

       Although the summary judgment encompassed not only Peterson's Wis. Stat. § 100.18(1) claim, but also her claims of misrepresentation, she appeals only the dismissal .of her § 100.18(1) claim.

       Wisconsin Stat. § 100.18, provides in relevant part:
      Fraudulent representations. (1) No person, firm, corporation or association, or agent or employee thereof, with intent to sell, any real estate or with intent to induce the public in any manner to enter into any contract or obligation relating to the purchase [or] sale of any real estate shall make, publish, disseminate, circulate, or place before the public in this state, in a newspaper, magazine or other publication, or in the form of a book, notice, handbill, poster, bill, circular, pamphlet, letter, sign, placard, card, label, or over any radio or television station, or in any other way similar or dissimilar to the foregoing, an advertisement, announcement, statement or representation of any kind to the public relating to such purchase [or] sale of such real estate or to the terms or conditions thereof, which advertisement, announcement, statement or representation contains any assertion, representation or statement of fact which is untrue, deceptive or misleading.

       At oral argument, Cornerstone argued that as a result of subsequent developments in the economic loss doctrine in Wisconsin, specifically Kaloti Enters., Inc. v. Kellogg Sales Co., 2005 WI 111, 283 Wis. 2d 555, 699 N.W.2d 205, the economic loss doctrine may in fact bar a Wis. Stat. § 100.18 claim and hence trump contrary language in Kailin v. Armstrong, 2002 WI App 70, 252 Wis. 2d 676, 643 N.W.2d 132. Because we conclude that Peterson's § 100.18 claim is barred by the integration clause, we do not further address the possible applicability of the economic loss doctrine.

       The parol evidence rule can be stated as follows:
      When the parties to a contract embody their agreement in writing and intend the writing to be the final expression of their agreement, the terms of the writing may not be varied or contradicted by evidence of any prior written or oral agreement in the absence of fraud, duress, or mutual mistake.

        Federal Deposit Ins. Corp. v. First Mortgage Investors, 76 Wis. 2d 151, 156, 250 N.W.2d 362 (1977) (footnote omitted).

       Curiously, despite extensive discovery and ample time, Peterson repeatedly refers to the allegations she made in her complaint.

       If one party to a contract with a disclaimer, integration clause, or similar provision lacks the sophistication in business matters or possesses unequal bargaining power, this provides a basis for voiding that clause. See, e.g., Finch v. Southside Lincoln-Mercury, Inc., 2004 WI App 110, ¶ 22, 274 Wis. 2d 719, 685 N.W.2d 154. Here, however, because Peterson was represented by an attorney throughout the entire proceeding, she cannot be said to have lacked the necessary sophistication or to have been disadvantaged by unequal bargaining power.

       Cornerstone also contends that consequential damages for the loss of the property's appreciated value are barred as a matter of law because Peterson "cannot allege a fraud in the contract formation and avoid its integration clause, yet seek benefit of the bargain damages." We decline to address the issue of consequential damages for the loss of the property's appreciated value because it appears as though Peterson is no longer seeking such damages. Although a claim for lost appreciation was among the eleven alleged damages she originally brought, her Pretrial Report did not mention such damages and neither do her appellate briefs.

       In fact, the closest she comes to explaining the alleged damages is on the last page of her reply brief in attacking Cornerstone's assertion that she should have put in her kitchen sink when she notes:
      Cornerstone over simplifies the condition of Ms. Peterson's unit. It wasn't just the sink. It was poor construction including significant roof issues, ceiling construction, heating and air conditioning design and execution, water leakage and mold. The unit was because of these problems rendered uninhabitable. Ms. Peterson has expended substantial dollars attempting to make the unit habitable.
      These brief mentions of what she actually alleges was wrong with her unit were not accompanied by citations to the record.