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Holzbauer v. Safeway Steel Products10/25/2005
Before Wedemeyer, P.J., Fine and Kessler, JJ.
The Board of School Directors of the Public Schools of the City of Milwaukee ("MPS") appeals from non-final orders of the trial court (1) granting summary judgment to Safeway Steel Products, Inc., on its counterclaim against MPS and denying summary judgment to MPS on the same issue; and (2) denying MPS's motion for leave to amend its answer to assert a statute of frauds defense. We conclude that the trial court misapplied the burden of proof in analyzing Safeway's motion for summary judgment, and that MPS is entitled to summary judgment as a matter of law. Therefore we reverse and remand with directions to enter judgment in MPS's favor on Safeway's counterclaim. Because judgment will be granted in MPS's favor, we need not address whether the trial court erroneously exercised its discretion when it denied MPS's motion to amend its answer to the counterclaim to include a statute of frauds defense.
BACKGROUND
This case involves injuries that James A. Holzbauer, an employee of MPS, suffered when he fell through some scaffolding as Holzbauer and other employees were painting the ceiling of an elementary school gymnasium. Holzbauer was injured when he fell from a height of seventeen feet, through a gap between the scaffold platform and a guardrail. Safeway supervised the erection of the scaffolding, which it owned and rented to MPS.
Additional background on the painting crew and how the scaffolding came to be erected is essential to an understanding of the resolution of this case. Holzbauer is employed by MPS as a member of a paint crew. The crew reports to a crew leader. The leader reports to a foreman. The foreman reports to a paint shop manager. The manager reports to the Director of Facilities and Maintenance Services, who reports to the superintendent of schools, who reports to MPS.
Tim Schein, the crew leader, with permission from his foreman, contacted Safeway to get a bid for scaffolding rental so the gymnasium ceiling could be painted. Safeway later faxed a price proposal, and a drawing of the proposed scaffolding, to Schein. This faxed document was never signed by anyone at MPS or Safeway. The record discloses no discussion between anyone from MPS and anyone from Safeway of the terms or conditions contained in two columns of fine print on the back of the proposal document.
Schein later called Safeway and left a telephone message that the "quotation" had been accepted and disclosed a purchase order number generated within the MPS system. According to the Director of Facilities and Maintenance Services, Richard Moore, it is ordinarily necessary for a management person to authorize a purchase order. Moore also testified that the terms and conditions of contracts entered into with vendors were limited only to the terms contained in the purchase order, unless "somebody in an administrative position would have reviewed and authorized a different type of contract." In this particular instance, the purchase order document was never delivered to Safeway or signed by anyone from Safeway, and there is no evidence that anyone in an administrative position reviewed and authorized any other type of contract. Nonetheless, the scaffolding was delivered to MPS.
David Kastel, a Safeway employee, supervised assembly of the scaffolding. After the scaffolding was assembled, and before he left the school, Kastel presented a printed form and asked that someone employed by MPS sign it. On the front of the pages, all of the equipment delivered was identified, the MPS purchase order number had been inserted, and the upper right hand corner of the document was labeled "Rental Agreement." T
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