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A motion to dismiss must be denied unless, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party. Wis. Stat. § 805.14(1).
Plaintiff and defendants negotiated an executive compensation agreement for plaintiff. The parties were represented by counsel and had exchanged numerous drafts in which changes were highlighted and explained. During the last round of negotiations, defendant corporate president altered a provision in the agreement, but failed to point it out to plaintiff. Plaintiff later brought the present action, alleging misrepresentation and seeking contract reformation. On defendants' motion at the close of plaintiff's case, the trial court dismissed the latter's claims, based on its conclusion that defendants had no duty to disclose the alteration, and that plaintiff's negligence in failing to detect the alteration barred his claims as a matter of law. Plaintiff appealed.
Did the trial court correctly dismiss the plaintiff’s claims against the defendants?
On appeal, the court reversed and found that plaintiff presented credible evidence at trial showing that his claims turned on disputed facts; that the parties' conduct during the course of the negotiation may have given rise to a duty on defendants' part to disclose alterations to the agreement; and that, in light of the parties' conduct, plaintiff's failure to discover the last-minute alteration might not have barred his recovery.