Anushree Mehrotra v. William M. Campbell

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 20, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2018AP1758 Cir. Ct. No. 2017CV83
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
ANUSHREE MEHROTRA AND HIMANSHU SHARMA,
PLAINTIFFS-APPELLANTS,
V.
WILLIAM M. CAMPBELL, SANDRA A. CAMPBELL AND
RICHARD W. SCHALK,
DEFENDANTS,
ROBERT KRECAK,
DEFENDANT-RESPONDENT.
APPEAL from an order of the circuit court for Waukesha County:
JENNIFER DOROW, Judge. Reversed and cause remanded.
Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.
No. 2018AP1758
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. Anushree Mehrotra and Himanshu Sharma
(collectively, the Sharmas) appeal from an order granting summary judgment to
Robert Krecak. They contend that the circuit court erroneously exercised its
discretion in concluding that their witness, James Jendusa, was not qualified to
give an expert opinion, which was necessary to advance their claims against
Krecak. For the reasons that follow, we reverse and remand for further
proceedings.
¶2 The Sharmas are first time homeowners residing in the City of
Brookfield. They purchased their home in May 2016.
¶3 Prior to their purchase, the Sharmas hired Krecak to perform a home
inspection. Krecak noted some cracks in the basement walls but dismissed them
as cosmetic and a normal consequence of concrete shrinkage.
¶4 After the purchase, the Sharmas observed many more cracks, most
of which were not reflected in Krecak’s report. They hired Jendusa to examine
their home.
¶5 Jendusa is a structural engineer who has inspected over 500
basements for structural and water leakage issues. Upon examining the Sharmas’
home, he opined that it had a sinking foundation. He faulted Krecak for not
bringing the issue to the Sharmas’ attention.
¶6 The Sharmas filed suit against Krecak, alleging breach of contract
and negligence. They also sued the sellers of the home and another structural
engineer; however, those claims are not part of this appeal.
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¶7 Krecak eventually moved for summary judgment. He argued that
the Sharmas’ sole expert witness, Jendusa, was not qualified to give an expert
opinion as to the standard of care for a home inspector, which was necessary to
advance the Sharmas’ claims against Krecak.
¶8 Following a hearing on the matter, the circuit court granted Krecak’s
motion. The court agreed that Jendusa lacked the qualifications to testify as an
expert in the home inspection industry. It noted that Jendusa had never taken a
home inspection test or performed a home inspection himself. It further noted that
Jendusa had admitted in his deposition that he was unfamiliar with WIS. STAT.
§ 440.975 (2017-18),1 which sets forth the standards of practice for home
inspectors in Wisconsin. Although Jendusa submitted a follow-up affidavit
incorporating § 440.975 into his analysis, the court rejected it as a sham.
Accordingly, it excluded Jendusa’s testimony and dismissed the Sharmas’ claims
against Krecak. The Sharmas now appeal.
¶9 We review de novo the grant of summary judgment, employing the
same methodology as the circuit court. Green Spring Farms v. Kersten, 136
Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987). Summary judgment is proper when
there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. WIS. STAT. § 802.08(2).
¶10 The summary judgment decision in this case turned entirely on the
circuit court’s conclusion that Jendusa lacked the qualifications to testify as an
expert in the home inspection industry. We review a circuit court’s decision to
1
All references to the Wisconsin Statutes are to the 2017-18 version.
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No. 2018AP1758
exclude testimony under an erroneous exercise of discretion standard. State v.
Giese, 2014 WI App 92, ¶16, 356 Wis. 2d 796, 854 N.W.2d 687.
¶11 On appeal, the Sharmas contend that the circuit court erroneously
exercised its discretion in concluding that Jendusa was not qualified to testify as
an expert in the home inspection industry. They accuse the court of exceeding its
gatekeeping function. We agree.
¶12 It is true that Jendusa has never taken a home inspection test or
performed a home inspection himself. However, one does not have to be licensed
in a profession in order to testify about its standard of care. See Kerkman v.
Hintz, 142 Wis. 2d 404, 423, 418 N.W.2d 795 (1988). Rather, one simply has to
be qualified as an expert in the area in which the testimony will be given. Id.; see
also Green v. Rosenow, 63 Wis. 2d 463, 471, 217 N.W.2d 388 (1974) (“It is the
particular qualifications of the witness in relation to the particular issue which
should control rather than the label of a profession or trade.” (quoting Roberts v.
State, 41 Wis. 2d 537, 551, 164 N.W.2d 525 (1969))).
¶13 Here, the record establishes that Jendusa was qualified as an expert
in the home inspection industry. As noted in his affidavit, Jendusa is the author of
standards adopted by the State of Wisconsin in its code for foundation repair. He
is a member of the Wisconsin Association of Home Inspectors. He has given
instruction and lectures to home inspectors on how to inspect and report on
basement walls. He has also been asked to sit on an arbitration panel to review
claims of negligence against home inspectors and then to render an opinion as to
whether they were negligent or not. Thus, his background as a structural engineer
overlapped considerably with the work of home inspectors.
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No. 2018AP1758
¶14 Although Jendusa expressed unfamiliarity with the statutory
standards of practice for home inspectors at the time of his deposition, the fact that
he later reviewed and incorporated them into his analysis does not render his
follow-up affidavit a sham. Any initial unpreparedness on his part simply goes to
the weight of his expert opinion, not its admissibility in the first instance.
By the Court.—Order reversed and cause remanded.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
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