BERNARD SEIDLING D.B.A. FOUR STAR PROPERTIES, INC
V.
MARK C. WOYCHIK, PAULA H. WOYCHIK
AND THOMAS MCCORMACK.
CASE NO. 04 CV 460
1. Bernard Seidling is in the business of buying and selling real estate for profit
2. In 1998, Bernard Seidling operating as D.B.A. Four Star Properties, inc. acquired an 80-acre parcel of land located in Forrest Township and legally described as the North Half of the Northeast Quarter (N 1/2 of NE 1/4) of Section Nine, Township Thirty-One North, Range Fifteen West.
3. In 2000 Bernard Seidling advertised to the public that he was selling lots.
4. When Bernard Seidling was advertising lots for sale, Bernard Seidling did not have a certified survey map that was approved by St. Croix County. Bernard Seidling knew that he needed an approved CSM before he could lawfully subdivide the property and before any would-be-purchasers could record their deeds.
5. In July Mark and Paula Woychik responded to Bernard Seidlings advertisement, "Great Building Site" which has already been perked.
6. The Woychiks purchased a 5-acre lot on a land contract from Bernard Seidling operating as Four Star Properties, Inc. This lot was situated next to a public highway.
7. When the Woychiks and Bernard Seidling operating as Four Star Properties, Inc. executed the land contract, Bernard Seidling promised to complete the survey within a few weeks.
8. In August 2000, the Woychiks wanted to switch lots and purchase a 5-acre lot away from the highway. Bernard Seidling agreed and drafted a new land contract.
9. The new land contract situated the 5-acre parcel in the southwest corner of the 80-acre parcel. Bernard Seidling created a crude meets and bounds description that included lot dimensions of 457 feet by approximately 500 feet, and it included language that provide access by an easement, the location of which was unidentified.
10. The location of the easement was initially undetermined. Bernard Seidling proposed several different configurations for the subdivision and the easement road, but Bernard Seidling failed to secure County approval for his concepts.
11. The Woychiks grew concerned about Bernard Seidlings' failure to obtain a CSM. The Woychiks made repeated demands for a CSM and a recordable land contract and easement.
12. Without a recordable land contract and easement, the Woychiks could not obtain a building permit or begin construction on the home they planned to build. Without a recorded easement, the Woychiks were unwilling to invest the needed $15,000.00 to construct an access road.
13. Concerned about the situation, the Woychiks consulted Thomas McCormack, a real estate attorney from Baldwin, Wisconsin.
14. Attorney McCormack shared the Woychiks' concerns about the absence of a CSM, a recordable land contract and a recorded easement.
15. Attorney McCormack, recommended the Woychiks to record an affidavit of interest to protect their interest under the land contract and their right of access.
16. The affidavit claimed an interest in the 5-acre parcel described in the land contract. Because Bernard Seidling never described the location of the easement, the affidavit claimed an easement somewhere across the 80 acre parcel.
17. The affidavit of interest was recorded February 20, 2002.
18. Bernard Seidling obtained approval of a certified survey map on September 12, 2003. It was recorded the same day.
19. The dimension of the 5-acre lot described in the Woychiks' land contract did not match the dimension of the CSM. The description in the CSM contained 1/4 acre less then the acreage described in the land contract.
20. After the CSM was recorded, Bernard Seidling did not provide the Woychiks with a recordable land contract or a recordable easement interest.
21. Bernard Seidling discovered the affidavit of interest when Dawn and Daniel Larson tried to get a title Commitment from River Valley Abstract for Lot 1.
22. The Woychiks' interest was an ownership interest in five acres with a right of access at an unspecified location somewhere across the balance of Bernard Seidlings' 80 acres.
23. The affidavit of interest was not false, sham or frivolous.
24. The Woychiks' had a legitimate reason to record an affidavit of interest to protect their interest under the unrecorded land contract.
25. The Woychiks and their attorney exercised reasonable judgment and good faith in drafting the affidavit of interest.
26. Even if the affidavit of interest was misinterpreted as claiming an ownership interest in the 80 acres, as suggested by Bernard Seidling it did not impair title or interfere with Bernard Seidling efforts to sell land because:
a) The Larsons purchased their lot after the affidavit of interest was recorded and they took title subject to the interest claimed in the affidavit;
b) River Valley Abstract understood that the affidavit of interest was limited to the Woychiks' 5 acre lot and an access easement somewhere across the balance of the 80-acre parcel not ownership of the 80 acres. Bernard Seidling complaints about the wording of the affidavit, it did not interfere with the Larsons efforts to finance or close the transaction with Bernard Seidling.
c) Even if the affidavit was expressly limited to an easement interest, as urged by Bernard Seidling the title commitment still would have included an exception for the Woychiks' access easement;
d) River Valley Abstract would not have issued to the Larsons a title commitment without exceptions because Bernard Seidling did not have chain of title to the west 2 rods of the Larsons' lot;
e) Bernard Seidling could not lawfully sell lots to Robert Edwards and Jamie Herman because no county-approved CSM was prepared for that land and it could not be lawfully subdivided, regardless of the existence of the affidavit of interest.
27. Any problems Bernard Seidling experienced with the subdivision transactions were self-created and were a direct result of his willful violation of St. Croix County Ordinances and Wisconsin Statutes that prohibit subdivision of land without an approved CSM.
28. To this day, Bernard Seidling has not provided the Woychiks' with a recordable land contract with an access easement. Bernard Seidling's testimony about provided a recordable land contract is not believable or credible for the following reasons.
a) Bernard Seidling produced this document for the first time at trial, despite two seperate motions for summary judgment where such an important document would have been produced.
b) The Woychiks' habitually asked Attorney McCormack to review any proposed documents from Bernard Seidling and Attorney McCormack did not see them until the day of trial and he did not have a copy of it in his file.
c) Bernard Seidlings's earlier drafts of the land contract contained material deviations from the unrecorded land contract terms and demonstrates Bernard Seidlings unwillingness to provide Woychiks' with the deed and title to which they were entitled;
d) The Woychiks sought legal counsel to secure a recordable land contract and their purported rejection of this exhibit 30 does not fit with the facts.
e) Bernard Seidling has demonstrated a decidedly selective memory during the trial. He was unable to explain basic matters associated with the transaction but claims to have a sharp and clear recollection of facts whenever they are favorable to his point of view, including Exhibit 30. Bernard Seidlings's testimony is not credible.
29. During the course of his dealings with the Woychiks, Bernard Seidling made misreprentations of material fact. Those misrepresentations include the following:
a) Bernard Seidling could lawfully sell lots.
b) The the land was perked.
c) That Bernard Seidling would prepare a CSM within a few weeks of signing the land contract;
d) That Bernard Seidling would provide a recordable land contract and easement;
e) That Bernard Seidling had fee simple title to the land that he was transferring to the Woychiks;
f) That the Woychiks' lot would have dimension of 457 by roughly 500 feet.
30. The subject matter of these representations were matters within Bernard Seidlings sphere
of knowledge.
31. Bernard Seidling intentionally made the misrepresenations with the intent of deceiving the Woychiks.
32. Bernard Seidling had an economic interest in his dealing with the Woychiks'
33. The Woychiks detrimentally relied on the statements made by Bernard Seidling.
34. The Woychiks were damaged as a result of Bernard Seidlings misrepresentations in the following respects:
a)Loss of the west 2 rods that was included in the purchase $974.00
b) An 11,500 square foot discrepancy between the acreage promised in the land contract and the acreage contained in the CSM $738.00
c) Increased building and road construction costs resulting from Bernard Seidlings' failure to provide a recordable land contract and easement that would permit the Woychiks' to obtain a building permit $24,682.00;
d) Cost of a perk test $704.00
e) Attorneys fees and costs.
35. Bernard Seidling is liable for intentional misrepresentation, strict responsibility misrepresentations and unfair trade practices by false representations under section 100.18
Dated 9-14-2006
BY THE COURT
HONORABLE EDWARD F. VLACK
CIRCUIT COURT JUDGE
ST. CROIX COUNTY, WISCONSIN
