                                                             2013 WI 72

                  SUPREME COURT         OF   WISCONSIN
CASE NO.:              2011AP1566
COMPLETE TITLE:        United Concrete & Construction, Inc.,
                                 Plaintiff-Appellant,
                            v.
                       Red-D-Mix Concrete, Inc.,
                                 Defendant-Respondent-Petitioner,
                       Nationwide Mutual Insurance Company and Allied
                       Insurance
                       Company,
                                 Defendants-Respondents.


                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                         Reported at 343 Wis. 2d 679, 819 N.W.2d 563
                                (Ct. App. 2012 – Unpublished)

OPINION FILED:         July 12, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         April 23, 2013

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Outagamie
   JUDGE:              John A. Des Jardins

JUSTICES:
   CONCURRED:          ABRAHAMSON, C.J., BRADLEY, CROOKS, J.J., concur.
                       (Opinion filed.)
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-respondent-petitioner, there were briefs
by Frank Kowalkowski, James Kalny, and Davis & Kuelthau, S.C.,
Green Bay, and oral argument by Frank Kowalkowski.




       For the plaintiff-appellant, there was a brief by Valerie
J. Revnew and Epiphany Law, LLC, Appleton, and oral argument by
Valerie J. Revnew.
                                                                            2013 WI 72
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.    2011AP1566
(L.C. No.   2008CV1595)

STATE OF WISCONSIN                                :            IN SUPREME COURT

United Concrete & Construction, Inc.,

             Plaintiff-Appellant,

      v.

Red-D-Mix Concrete, Inc.,
                                                                         FILED
             Defendant-Respondent-Petitioner,                       JUL 12, 2013

Nationwide Mutual Insurance Company and Allied                         Diane M. Fremgen
                                                                    Clerk of Supreme Court
Insurance Company,

             Defendants-Respondents.




      REVIEW of a decision of the Court of Appeals.                        Affirmed in
part, reversed in part, and cause remanded with instructions.



      ¶1     MICHAEL J. GABLEMAN, J.              There are many vagaries in

the   law.          However,     we    deal       here     with      the     concrete.

Specifically, certain batches of concrete that United Concrete

and   Construction,       Inc.     (United)       purchased         from     Red-D-Mix

Concrete,    Inc.    (Red-D-Mix)      and   now    complains       were     defective.

United used the concrete to pour outdoor installations (known in
                                                                        No.     2011AP1566



the     industry     as    "flatwork")        at    various       properties.       After

problems        arose      with     the     installations,           United     obtained

assignments        from     a     number      of    the     property    owners,1       who

transferred        their    putative       right     to     sue   Red-D-Mix     over   to

United.       United then exercised that right, filing a complaint in

tort and contract, in both its own name and in that of the

assignees, and alleging violations of Wis. Stat. § 100.18 (2011-

12).2       The circuit court3 granted summary judgment for Red-D-Mix,

on the grounds that United's claims through the property owners

and its tort claims were barred by the economic loss doctrine,

its     § 100.18    claim       could   not       proceed    because    the   allegedly

actionable statements constituted puffery and because United was

not a member of the public within the meaning of the statute,

and damages had been insufficiently established to support the

remaining claims.           Disagreeing entirely with the trial judge,

the court of appeals reversed on all grounds.

        ¶2     As shown below, the court of appeals was in the main

correct, but reached the wrong result in one respect and was
overbroad or imprecise in others.                   To wit, the court of appeals

properly reversed the circuit court's ruling regarding puffery,


        1
       Following the court of appeals and the parties, we will
also occasionally call the property owners "homeowners."
        2
       All subsequent citations to the Wisconsin statutes are to
the 2011-12 edition.    None of the provisions relevant to the
instant case have changed in any pertinent respect since the
underlying conduct giving rise to the dispute occurred.
        3
            The Honorable John A. Des Jardins presiding.

                                              2
                                                                               No.    2011AP1566



though       it   incorrectly         determined       that       puffery       is    always     a

question of fact for the jury.                     On the next issue, the court of

appeals       erred     in    its     determination          that      the     claims       United

asserted       through       the    assignments       were       valid,      when,    with     two

exceptions,4 the economic loss doctrine barred the homeowners

from suing Red-D-Mix and thus barred United from suing in their

name.         Finally,       the    court    of     appeals       rightly       reversed       the

circuit court for finding all the asserted damages speculative,

though       in   doing       so     it    prematurely          interpreted          the     legal

significance of the assignments.                      Its language construing the

assignments        is        overruled.             See      Griebler          v.         Doughboy

Recreational, Inc., 160 Wis. 2d 547, 556, 466 N.W.2d 897 (1991)

(overruling specific language from the court of appeals decision

under review).

        ¶3     When the case is returned to it, the circuit court is

directed to dismiss the claims asserted through the assignments,

and     to     allow    the        remaining       claims       to     proceed       to     trial.

Accordingly, we affirm in part, reverse in part, and remand with

instructions.

                                    I.      FACTUAL BACKGROUND

        ¶4     Because       this    case    is    here     on       summary    judgment,       we

recite the facts in the light most favorable to United, the

party        opposing     summary         judgment,       and     accept       as     true     its




        4
            See infra note 19.

                                               3
                                                                           No.    2011AP1566



allegations.5           Kraemer Bros., Inc. v. U.S. Fire Ins. Co., 89

Wis. 2d 555, 567, 278 N.W.2d 857 (1979).

      ¶5     From       2002   to   2004,      Red-D-Mix     supplied       United       with

concrete,6 which United then poured at various job sites.                           During

that time, United complained to Red-D-Mix that its product was

generating excessive "bleed water,"7 thereby damaging several of

United's projects, including a number of basements.                               When the

problem was not resolved to United's satisfaction, it severed

its business relationship with Red-D-Mix.

      ¶6     In    2007,       unhappy    with     price    increases       at    its    new

supplier, M&M Concrete, United contacted Red-D-Mix to inquire

into the possibility of restoring the relationship.                          John Clark,

a   salesman      for    Red-D-Mix       who   had    not   been    with    the    company

during     the    earlier       difficulties         with   bleed    water,       came    to

United's offices at its request.                     There, he met with Timothy

Hippert, the president of United, and Kevin Kluess, United's

foreman.     Hippert and Kluess sought assurances from Clark that

the problems with the concrete had been resolved and that Red-D-


      5
       For this reason, we will not insert an ungainly
"allegedly" before every allegation. We do not thereby imply
the truth of any factual assertion.
      6
       The briefs and court of appeals opinion refer only to
concrete, not cement, so we do the same.
      7
       As explained in the summary judgment materials, "bleed
water" is essentially excess water that seeps out of concrete
after it has been poured and rests on the surface.  There was
testimony taken at depositions that such water can make the
upper layers of the concrete weaker and more likely to
prematurely degenerate.

                                               4
                                                                               No.    2011AP1566



Mix could now guarantee a high-quality, durable product.                                     When

Clark delivered those assurances, the two companies entered into

a new contract.

       ¶7        The good will was short lived.                         Customers soon began

alerting         United        to     defects         in        their     outdoor      concrete

installations,           such as pitting,             discoloration,         crumbling,       and

spalling.8        In response, United asked property owners to sign an

assignment         of    rights.           The    assignment            indicated     that    the

signatory "desires to transfer any and all rights they [sic] may

have       arising      from   the    supply      of       defective       concrete    for    the

purpose of prosecution and/or otherwise resolving the claims as

seen fit by" United.                 It informed the reader that "the legal

effect of signing this Assignment fully and forever extinguishes

any and all claims which he/she has or might have had against

any company for the supply of defective concrete for use in

flatwork performed by a third-party as of the date of execution

except as expressly reserved."                        The assignment then concluded,

"Assignor         conveys,      assigns,         transfers         and      sets     over    unto
Assignee, all rights to any causes of action and/or claims of

any nature, whether known or unknown, in any way relating to the
outstanding          claims         that    exist          in     his/her     favor . . . ."

Ultimately, 22 property owners acquiesced to United's request.
Of these, 20 did so without any conditions.                               Of the other two,

one,       the   Michaels,      insisted         on    a    reservation       of     rights    in


       8
      To spall is to "[b]reak off . . . in fragments; splinter,
chip." Shorter Oxford English Dictionary 2935 (6th ed. 2007).

                                                 5
                                                                              No.    2011AP1566



return.           The other, the Beyers, sued United in small claims

court       and    agreed   to    the     assignment        as    part   of   a     stipulated

dismissal, in exchange for United promising to either repair the

damaged concrete or pay for its replacement.

                                    II.    PROCEDURAL HISTORY

       ¶8         Its assignments in hand, United brought suit in its

own    name       and    through     the    assignments           against     Red-D-Mix     in

Outagamie County Circuit Court, demanding damages, in its third

and final amended complaint, for breach of contract, breach of

express           warranty,       breach        of     implied           warranty,       false

representations             under       Wis.        Stat.        § 100.18,        negligence,

indemnification, and contribution.9                    Red-D-Mix moved for summary

judgment, arguing that damages were speculative because United

had not yet performed any repairs.                          The motion further argued

that the negligence claims were barred under the economic loss

doctrine, as no harm befell any individuals or property other

than        the    concrete      itself,       aside    from      two     minor     incidents

involving grass growing in a driveway and abnormal wear and tear
on a floor.             With respect to the assigned claims as a whole,

Red-D-Mix contended that they should all be dismissed because,
under our decision in Linden v. Cascade Stone Co., Inc., 2005 WI

113, 283 Wis. 2d 606, 699 N.W.2d 189, the owners could sue only

United, not Red-D-Mix, and they therefore had nothing to assign.

Lastly, Red-D-Mix submitted, in its motion for summary judgment,

        9
       Red-D-Mix filed a counterclaim, alleging that United was
itself negligent in various actions it took with respect to the
concrete. The counterclaim is not before us.

                                                6
                                                        No.    2011AP1566



that United's Wis. Stat. § 100.18 claim was based on puffery and

that United was not a "member of the public" protected by the

statute, and thus its claim failed as a matter of law on both

grounds.10

     ¶9      The circuit court more or less embraced in full Red-D-

Mix's view of the case, holding that the claims made through the

assignments and all of the tort claims were prohibited by the

economic loss doctrine,11 that the representations forming the

basis for the Wis. Stat. § 100.18 claim were puffery and were

being improperly brought by a non-member of the public, and that

United had not alleged sufficient damages to proceed to trial.

     ¶10     Reversing, the court of appeals took exception to the

circuit court on each point.      United Concrete & Constr., Inc. v.

Red-D-Mix Concrete, Inc., No. 2011AP1566, unpublished slip op.

(Wis. Ct. App. June 13, 2012).         The court first concluded that

damages    were   not   overly   speculative   for   summary   judgment

purposes because United "could present sufficient evidence to

enable a reasonable jury to award damages in an amount supported


     10
       Red-D-Mix also argued to the circuit court that the
assignments were unsupported by consideration and that no
warranties were given.     It does not raise the former, and
mentions the latter only in a passing footnote without citation
or elaboration.   We will therefore address neither.   See State
v. Gracia, 2013 WI 15, ¶28 n.13, 345 Wis. 2d 488, 826 N.W.2d 87
("[W]e do not usually address undeveloped arguments.") (citation
omitted).    Extensive litigation regarding various insurance
issues also took place at the circuit court. Those issues have
not been presented for our review.
     11
       United did not appeal the dismissal of its tort claims so
we do not discuss them further.

                                   7
                                                                       No.    2011AP1566



by the evidence."         Id., ¶10.        It then determined that Linden did

not foreclose the suit, reasoning that "[w]hile the homeowners

may   have     had   no    rights      against    Red-D-Mix      to     assign,       the

Assignments neither strip from United its right to sue Red-D-Mix

nor protect United from [the] homeowners' potential breach-of-

contract claims."         Id., ¶11.        Turning to the Wis. Stat. § 100.18

claim,   the    court     of     appeals    considered   the     issue       unfit    for

summary judgment disposal, as questions remained as to "what

role, if any, Clark's being a 'new' salesperson should play in

his   credibility,        what    he   said,     and   whether    it     constituted

'puffing' . . . ."             Id.,    ¶14.       Finally,       the     panel       also
instructed the circuit court that the issue of whether United

was a member of the public in the sense contemplated by § 100.18

"presents a question of fact."                  Id., ¶16 (citation omitted).

Elaborating, the court explained that "[a] jury reasonably could

find that a particular relationship existed between United and

Red-D-Mix because of their past dealings; it just as reasonably

could find that United was a member of 'the public' when Red-D-

Mix, through Clark, solicited United's business anew."                         Id.     As

such, the matter was properly submitted to the trier of fact,

not the court on summary judgment.               Id.

      ¶11    We granted Red-D-Mix's petition for review.                       Finding

no error in the court of appeals' decision to afford United a

trial, but finding several errors in its analysis, we affirm in

part, reverse in part, and remand with instructions.

                                 III. STANDARD OF REVIEW


                                            8
                                                                                  No.     2011AP1566



       ¶12        As noted, we review a summary judgment order.                            In such

instances, we approach the issues independently of the lower

courts, while applying the same standards they did.                                       Admanco,

Inc.     v.       700     Stanton         Drive,       LLC,     2010       WI    76,     ¶14,       326

Wis. 2d 586,            786    N.W.2d 759.          Those       standards        require       us    to

answer     whether            any   genuine       issues      of    material       fact    are       in

dispute rendering a trial necessary.                          Id., ¶28.         In so doing, we

examine the summary judgment record while considering the facts

in   the      light      most       favorable      to    the       party      opposing     summary

judgment——here,                United——and         assuming          the        truth     of        its

allegations.            Kraemer Bros., Inc., 89 Wis. 2d at 567.                           If there
is   but      a    single       reasonable        inference         to   be     drawn     from      the

undisputed         facts,       and    if    that      inference         favors     the    movant,

summary judgment is proper.                   Grams v. Boss, 97 Wis. 2d 332, 338,

294 N.W.2d 473 (1980), abrogated on other grounds by Olstad v.

Microsoft Corp., 2005 WI 121, 284 Wis. 2d 224, 700 N.W.2d 139.

                                            IV.     DISCUSSION

       ¶13        Red-D-Mix challenges the court of appeals decision on

four main grounds: 1) that United was not a member of the public

vis-à-vis Red-D-Mix and consequently cannot bring suit pursuant

to Wis. Stat. § 100.18; 2) that the misrepresentations were mere

puffery and therefore not prohibited by that statute; 3) that

some claims are barred by the economic loss doctrine; and 4)

that all claims are foreclosed by the speculativeness of the

requested         damages.           We    hold     that      the    first       issue    was       not

properly preserved by Red-D-Mix in its petition for review and

accordingly decline to address it.                            As to the second issue, we
                                                   9
                                                                    No.   2011AP1566



conclude that the truth or falsity of the statements in question

was ascertainable, and thus the § 100.18 claim should have been

submitted to a trier of fact.            With respect to the third issue,

we agree with Red-D-Mix that United cannot file suit in the

homeowners' names because they have no cause of action under the

economic loss doctrine.            On the final issue, we hold that the

speculativeness of damages should not have prompted the grant of

summary judgment, but we overrule language from the court of

appeals' opinion prematurely construing the legal significance

of the assignments.

            A. UNITED'S WIS. STAT. § 100.18 CLAIM SURVIVES SUMMARY

                                         JUDGMENT

      ¶14     Red-D-Mix asserts that summary judgment was correctly

granted on the Wis. Stat. § 100.18 claim because United was not

a   member    of   the   public,    as   required      by   the    provision,   and

because      the   misrepresentations         here   were   mere    puffery   as   a

matter of law.       We do not reach the first argument, as Red-D-Mix

failed to raise it in its petition for review, and we reject the
second one, as the statements do not represent puffery.

      1. Red-D-Mix Failed to Preserve Its Argument That United Is
                             Not a Member of the Public

      ¶15     Wisconsin Stat. § 100.18 creates civil liability for
certain kinds of fraudulent representations.                       In essence, as

relevant here, it exposes a corporation to lawsuits for damages
if it uses untrue statements to sell its wares to the public.

To make out a claim under the statute, therefore, a plaintiff

must show, inter alia, "that the defendant made a representation
                                         10
                                                                             No.    2011AP1566



to the public with the intent to induce an obligation . . . ."

State v. Abbott Labs., 2012 WI 62, ¶37, 341 Wis. 2d 510, 816

N.W.2d 145         (emphasis     added)     (citation         omitted);     see     also    K&S

Tool & Die Corp. v. Perfection Mach. Sales, Inc., 2007 WI 70,

¶20,        301     Wis. 2d 109,          732     N.W.2d 792         (collecting          cases

construing the "member of the public" language in § 100.18).

       ¶16        By supreme court rule, "[i]f a petition [for review]

is granted, the parties cannot raise or argue issues not set

forth in the petition unless ordered otherwise by the" court.

Wis. Stat. § (Rule) 809.62(6).                   In its petition for review, Red-

D-Mix framed its issues as, first, whether it is a "question of

law or a question of fact whether a statement made by a seller

of a product is sufficient to support a misrepresentation claim

or is instead inactionable puffery" and, second, whether it is

permissible                    for              "a             contractor                  [to]

circumvent . . . Linden . . . and initiate a cause of action it
admits belongs to its customers . . . ."                             It said nothing in

either      that section or its             discussion         section      about    being    a

member of the public.                Indeed, the only mention of that issue in

the    petition          for   review     appears      in     its    recitation      of     the

procedural         history.          In   granting     the     petition,      we    did     not

instruct the parties to brief or argue any additional issues.

Quite to the contrary, we specifically informed Red-D-Mix that

it    was    not    to    "raise or       argue      issues    not    set   forth     in    the

petition for review," and cited to § 809.26(6).

       ¶17        Red-D-Mix now asks us to forgive the omission because

the "member of the public" issue "is an essential element of
                                                11
                                                                                No.        2011AP1566



[its] [Wis. Stat.] § 100.18 claim," which can be reduced to the

proposition "that when the facts are undisputed, the Court, as a

matter    of    law,      should    decide         if    a    § 100.18      claim          must    be

dismissed."         As a result, Red-D-Mix says, "the issue of whether

the statement was made to the public is before this Court along

with every other element of misrepresentation that United saw

fit to address."            We are unpersuaded.                   The two questions are

manifestly discrete.              The statements could be puffery and not

made to a member of the public; they could be made to a member

of the public but not puffery; they could be neither or both.

The   puffery       issue    is    raised     in    the      petition       for       review      and

discussed      at    length.            The   member         of    the   public        issue      is

completely absent.           To adopt Red-D-Mix's interpretation of Wis.

Stat.    § (Rule)      809.62(6)         would      be       to    render    the       provision

meaningless.         A party could then guarantee our review of any

issue by simply mentioning the statute associated with a certain

claim and nakedly asserting that the lower court erred in its

ruling on that statute, even when there were numerous unrelated
issues stemming from              the    same    statute.           Such    a     construction

requires this court to do all the labor reasonably expected of
counsel, and we do not accept it.                       Cf. Johnson v. Blackburn, 227

Wis. 2d 249,        ¶29     n.11,       595   N.W.2d 676           (1999)    (declining            to

address an issue not raised in the petition for review, even

though the unraised issue related to the same statute as the

raised issue).

        ¶18    Red-D-Mix     chose       to   exclude        the    question          of    whether

United was a member of the public from the petition for review,
                                              12
                                                                       No.    2011AP1566



and we honor that choice.            The court of appeals' disposition of

the matter stands.

                  2. The Contested Statements Were Not Puffery

      ¶19    The circuit court thought the comments the Red-D-Mix

salesman, Clark, made at his meeting with United were puffery as

a matter of law and as a result could not support a Wis. Stat.

§ 100.18 claim.         Conversely, the court of appeals thought it

could not be determined whether they were puffery on summary

judgment at all.           We take a third route: the remarks were not

puffery, but that conclusion could and should have been reached

by the trial judge during the summary judgment proceedings.

                  a) Clarifying the Misrepresentations at Issue

      ¶20    Before getting into the merits of the dispute, it is

important    to     clarify    exactly     which    statements      are      at    issue.

Beginning at the circuit court, Red-D-Mix has consistently taken

the   position      that    the    misrepresentation          consisted        only    of

Clark's statements to the effect that Red-D-Mix's concrete was

"good and durable."           Notably, Red-D-Mix takes the position that

the court should not factor into its puffery analysis the fact

that Clark, in addition to the more general endorsement of the

product,     specifically         reassured      United      that    its       previous

concerns     with    the      concrete     had     been     addressed        and   those

particular    problems——i.e.,        the    issues        flowing   from      excessive

bleed water——were no longer occurring.                     In support, Red-D-Mix

notes that United offered no averments in its third and final

amended complaint regarding an exchange at the meeting over the

previous     problems       United   had      encountered       with      Red-D-Mix's
                                         13
                                                                                No.     2011AP1566



product.       Like the circuit court and the court of appeals, we

take a broader view than does Red-D-Mix.

       ¶21    As    a    notice       pleading       state,     Wisconsin       law        requires

only that a complaint "set forth the basic facts giving rise to

the claims."            Apple Hill Farms Dev., LLP v. Price, 2012 WI App

69,    ¶17,   342       Wis. 2d 162,        816      N.W.2d 914       (citing         Wis.    Stat.

§ 802.02(1)(a)).               The     purpose       of    a    complaint       in     a     notice

pleading      jurisdiction           is   to    provide        "sufficient      detail"        such

"that the defendant, and the court, can obtain a fair idea of

what the plaintiff is complaining, and can see that there is

some basis for recovery."                  Midway Motor Lodge of Brookfield v.
Hartford Ins. Grp., 226 Wis. 2d 23, 35, 593 N.W.2d 852 (Ct. App.

1999) (internal quotation marks and citation omitted).

       ¶22    United satisfied that standard here.                         While it is true

that    United      did    not       characterize         Clark      in   its   complaint       as

speaking specifically to the bleed water problems it had in the

past, it did alert Red-D-Mix to its accusation that Clark had

misrepresented the quality of his company's concrete at the 2007

meeting.       By the time summary judgment pleadings were filed,

Red-D-Mix      was      well     aware     of     United's        reliance      upon       Clark's

purported declaration that the bleed water problems had been

rectified.           Indeed,      in      Red-D-Mix's          own    motion     for       summary

judgment, it attached excerpts from a deposition with Hippert,

the president of United, at which he made abundantly clear that

he recalled seeking at the meeting "some guarantee from them

that they had solved that problem" with the bleed water and that

in     response      Clark      "assured        us    that       they     had    cured       their
                                                14
                                                                               No.     2011AP1566



problems . . . ."           Unsurprisingly, in light of that transcript,

the    attorneys        debated       the    significance          of   the    assurance      at

length during the summary judgment hearing, and both the circuit

court and court of appeals took it into account.                               Red-D-Mix had

more   than    adequate          notice      of    the     statements     to    prepare       its

defense      and    respond      to    United's         case,   both    of     which    it    did

thoroughly.             There    is    no     defect       in   the     pleadings       and    we

incorporate the statements into the allegations in our puffery

analysis.

                           b) The Statements Were Not Puffery

       ¶23    Having      resolved          that       threshold    issue,      we   will     now

demonstrate why Clark's statements were not puffery, and why the

circuit court should have held as much at summary judgment.

       ¶24    We begin with some brief background.                            The concept of

puffery is as old as our legal system.                          See Stefan J. Padfield,

Is Puffery Material to Investors? Maybe We Should Ask Them, 10

U. Pa. J. Bus. & Emp. L. 339, 350-53 (2008) (tracing the roots

of puffery to the ancient doctrine of caveat emptor, or "buyer

beware").          An    early    American         case    succinctly         summarized      its

underlying rationale: "[t]he law recognizes the fact that men

will naturally overstate the value and qualities of the articles

which they have to sell.                All men know this, and a buyer has no

right to rely upon such statements."                        Kimball v. Bangs, 11 N.E.

113, 114 (Mass. 1887).                 Some years later, Judge Learned Hand

elaborated, categorizing "some kinds of talk" as that "which no

sensible man takes seriously, and if he does he suffers from his

credulity.         If we were all scrupulously honest, it would not be
                                                  15
                                                                        No.     2011AP1566



so;    but,    as    it   is,   neither       party   usually     believes      what    the

seller says about his own opinions, and each knows it."                              Vulcan

Metals Co. v. Simmons Mfg. Co., 248 F. 853, 856 (2d Cir. 1918).

        ¶25    Consistent       with    other       jurisdictions,      Wisconsin       has

adopted these same essential principles into its common law.                               In

our state, a salesperson engages in puffery when he gives voice

to "the exaggerations reasonably to be expected of a seller as

to the degree of quality of his product, the truth or falsity of

which    cannot      be   precisely      determined."           State   v.     Am.    TV   &
Appliance       of    Madison,        Inc.,     146    Wis. 2d 292,        301-02,      430

N.W.2d 709          (1988)(internal           quotation       marks     and     citation

omitted).       Exaggerations of this sort do not subject the speaker

to liability under Wis. Stat. § 100.18 because they convey only

the seller's opinion and are "not capable of being substantiated

or refuted . . . ."             Tietsworth v. Harley-Davidson, Inc., 2004

WI 32, ¶44, 270 Wis. 2d 146, 677 N.W.2d 233 (internal quotation

marks and citation omitted).

        ¶26    Clark's promise to United that Red-D-Mix had remedied

the bleed water issues cannot reasonably be regarded as puffery

under the aforementioned definitions.                       Excessive bleed water is

a technical problem, with a technical definition and a technical

solution.       To gather information on this technical issue, both

parties retained experts who undertook extensive investigations

into     the    precise     composition        of     the    concrete   used     in     the

relevant       properties,      and    then    submitted       elaborate      reports      on

that composition.           There is nothing in the record to suggest

that a trier of fact, properly instructed and assisted by expert
                                              16
                                                                          No.       2011AP1566



testimony, would be unable to ascertain whether Red-D-Mix used

an acceptable combination of ingredients in its concrete or did

not.    Cf. Fireman's Fund Ins. Co. v. United States, 92 Fed. Cl.

598,    627,    657    (2010)       (discussing         excessive      bleed        water    in

concrete amongst other technical problems occurring as a result

of the particular composition of concrete).                           In fact, we would

be hard pressed to invent a hypothetical statement less similar

to the vague and amorphous hype typically classified as puffery

than    a    specific        reference        to    a    specific       problem        in     a

relationship         between        two      specific     parties        in     a      highly

specialized industry.              See, e.g., Tietsworth, 270 Wis. 2d 146,
¶43    (classifying         as    puffery      claims     that    a    product        was    "a

masterpiece" and of "premium quality"); Am. TV, 146 Wis. 2d at

299 (judging the endorsement of a product as "the finest" to be

puffery);       Consol.      Papers,         Inc.   v.    Dorr-Oliver,          Inc.,       153

Wis. 2d 589, 594, 451 N.W.2d 456 (Ct. App. 1989) (explaining why

an advertisement promising that a product had a "long equipment

life" was puffery).

       ¶27   To attack           this   straightforward       application           of well-

established law, Red-D-Mix emphasizes two facts: 1) that the

salesman       did    not    work       at   the    company      during       the    earlier

problems; and 2) that the earlier problems related to basements




                                              17
                                                                          No.     2011AP1566



and   not    outdoor      projects.         Neither     has       any   bearing    on    the

puffery inquiry.12

      ¶28    To explain, the reason that a valid defense of puffery

defeats     a    Wis.     Stat.      § 100.18       suit     is    that    the     defense

undermines       part     of   the    statute's        first       element:      that   the

defendant       related    a misrepresentation             of   fact.      Am.    TV,   146

Wis. 2d at 302.           This is so because a salesperson who simply

declares that his product is the "best" or the like, is not

representing       a    fact   at    all,     let    alone      misrepresenting         one.

Rather, he is merely delivering a nebulous, abstract, highly

generalized pitch for his wares.                    By contrast, when Clark told
United that the problem with the bleed water had been fixed, he

was very much making a specific, factual statement.                           That he may

not   have       been     familiar     with      the    problems        prior      to    the

conversation, or had any idea whether they had been addressed or

not, does not transform the factual statement into puffery, for




      12
       Red-D-Mix also insists that the statements cannot support
a Wis. Stat. § 100.18 action because they looked only to the
future, not the past.      Not so.    Clark told United that a
specific problem that had occurred historically was no longer an
issue.   Whether Red-D-Mix fixed a defect is a factual question
about the past, not the future.    To hold otherwise would be to
permit suppliers to make whatever outlandish claims they could
dream up to move their products without fear of lawsuit, because
every such claim could be categorized as one relating to the
future sale of the product and not its present condition.

                                            18
                                                                        No.    2011AP1566



it does not render this highly specific comment any more general

than it would have been otherwise.13

       ¶29    Our     conclusion     is    bolstered       by     the       absurd     and

pernicious consequences that would follow if we gave our stamp

of approval to Red-D-Mix's theory.                     To reiterate Judge Hand's

explication, salespeople should not be punished for trying to

improve their sales with claims "which no sensible man takes

seriously,      and    if   he    does    he    suffers    from       his   credulity."

Vulcan Metals Co., 248 F. at 856.                  It is surely not so naïve,

though,      for a    potential customer          to    expect    a    salesperson      to

speak the truth when he represents, on behalf of his company,

that a specific problem that had cropped up in the past between

the same two parties, relating to the same product, had been

solved.      Cf. Radford v. J.J.B. Enters., Ltd., 163 Wis. 2d 534,

544-45, 472 N.W.2d 790 (Ct. App. 1991) (holding that a boat-

owner did not engage in puffery when he assured the individual

purchasing the boat from him that its hull was sound and all dry

rot had been removed).            A world in which companies are relieved

of liability when their representatives make statements of the

sort    Clark   made     is   a    world   in    which     companies        have     every


       13
       United has also contended that Red-D-Mix conveyed false
information in violation of Wis. Stat. § 100.18 when Clark told
Hippert and Kluess that it was using a new plant and the same
supplier as M&M Concrete, the company United turned to after it
ended its earlier relationship with Red-D-Mix.      Our analysis
focuses on the specific promise that the bleed water problem had
been remedied, as that promise lies at the heart of the case.
These other closely related statements are not puffery for the
same reasons.

                                           19
                                                                                No.       2011AP1566



incentive to keep their salespeople in the dark about the flaws

in   their    products,         and     salespeople         have    every       incentive        to

confidently        deliver      as    many     unfounded       promises         as       they   can,

while the "sensible man" suffers the consequences.                                   That is not

the world common law courts envisioned in developing the concept

of puffery.

        ¶30   We     need     not     dwell    long    on     dispatching            Red-D-Mix's

other     line     of      attack:      that     the    earlier          problems         involved

basements        while       the     defects        giving     rise       to        the    present

litigation       involved          outdoor     projects.          For     one       thing,      this

distinction, whatever its truth, does not go towards puffery.

Even if Clark did mean only that the concrete was no longer

excessively bleeding in such a way as to damage basements, the

truth    or    falsity        of     that     statement      is     just       as    capable      of

ascertainment         as      the     truth    or     falsity       of     a    more       general

assurance that the concrete was not bleeding overmuch, indoors

or outdoors.         And, in any event, the summary judgment materials

made clear beyond doubt that United believed Clark was indeed

making that more general assurance, and that the assurance was

proven untrue by the deterioration of the concrete Red-D-Mix

supplied.        In the excerpted transcript of Hippert's deposition

that Red-D-Mix attached to its motion for summary judgment, he

characterized the earlier problem as the inability to "get a

concrete      that      we    could    pour     and    finish       without         it    bleeding

substantially"          and     then     elaborated          that    "in       general,         it's

bleeding,      but      our    primary        focus    was     on     basements."               Such

testimony makes plain that United believed the earlier bleeding
                                                20
                                                                    No.     2011AP1566



problem was the same as the one afflicting the later deliveries

of concrete, and that those later problems contradicted Clark's

promise.    Incontrovertibly, then, Red-D-Mix had the opportunity

to rebut the claim before the circuit court, and this argument

is   meritless.        The   statements       were   not   puffery,       and    United

therefore had a colorable claim under Wis. Stat. § 100.18.14

       c) Puffery Is Not Always a Question of Fact, Nor One of Law

      ¶31   One   final      question    on   the    subject   remains,         namely,

whether puffery is a matter for the judge at summary judgment or

the trier of fact at trial.               The answer is dictated by our

foregoing analysis: it depends.

      ¶32   Below, the court of appeals made the blanket assertion

that "[w]hether a statement is puffery is a question of fact."

United Concrete, No. 2011AP1566, ¶13 (citation omitted).                        Unlike

the panel, we do not understand the law to accord puffery any

unique status in summary judgment proceedings.                      Rather, like

most other issues, it is best decided by a court on summary

judgment when there are no genuine issues of material fact in

dispute and when, viewing the record in the light most favorable

to the party opposing summary judgment, the single reasonable

inference    to   be    drawn     from    the    facts     favors     the       movant.


      14
       Red-D-Mix   argues  in   the  alternative   that if the
statements were not puffery, they were inactionable on the
grounds they constituted opinion. For the same reasons that we
reject its puffery argument, we reject its opinion argument.
Radford v. J.J.B. Enters., Ltd., 163 Wis. 2d 534, 544-45, 472
N.W.2d 790 (Ct. App. 1991) (disposing of opinion and puffery
issues simultaneously and with identical reasoning).

                                         21
                                                                                No.     2011AP1566



Admanco, Inc., 326 Wis. 2d 586, ¶28; Grams, 97 Wis. 2d at 338.

Where this cannot be said, as will often be the case, it should

go to the jury.

        ¶33     The    benefits     of     our    approach       are    readily        apparent.

Most         obviously,      it    conforms            to    clear,      well-established,

universal        summary     judgment      procedure,         with      which    our     circuit

court        judges    are   intimately      familiar         and     long    accustomed       to

applying.         Cf. Wis. Stat. § 801.01(2) (providing that summary

judgment is allowed "in circuit courts of this state in all

civil actions and special pleadings . . . except where different

procedure is prescribed by statute or rule.").

        ¶34     In the same vein, it simply does not make sense to

assume that puffery is, always and everywhere, a matter for the

jury.        When there is no reasonable interpretation of the record

that would evidence puffery, it wastes the taxpayers' and the

parties'        time      and     money,     not        to   mention         scant      judicial

resources, to assemble a jury and submit to it the question.

Cf. Yahnke v. Carson, 2000 WI 74, ¶20, 236 Wis. 2d 257, 613

N.W.2d 102        (noting       that     "the         purposes     of    summary        judgment

procedure in this state" are to "avoid[] unnecessary trials and

conserv[e] the resources of the courts and litigants alike").

        ¶35     The dispute at           hand     proves     our     point.           Unless   the

meeting between Clark and United took place on "opposite day,"15
        15
       "'Opposite   Day'   is  a  fictitious   holiday, usually
celebrated by school-aged children, in which statements on that
day are intentionally false, but taken to mean the opposite by
listeners aware that the holiday is being celebrated." Attorney
Grievance Comm'n of Md. v. Siskind, 930 A.2d 328, 343 n.9 (Md.
2007) (citations omitted).
                                                 22
                                                                                    No.    2011AP1566



there    is    no     defensible        view        of    the    record        to       support     the

conclusion       that    Clark's        statements          constituted         puffery.            For

purposes       of    summary       judgment,         Red-D-Mix          assumed         that     Clark

promised the previous issues with bleed water had been resolved.

In ruling on the motion, then, the circuit court had no need to

wonder whether the statements had actually been made, nor to

consider       the    credibility        of    Red-D-Mix's            salesman           versus     the

credibility of United's employees or any other matter within the

sole province of the trier of fact.                                See, e.g., Fischer v.

Cleveland       Punch       &   Shear    Works       Co.,        91   Wis. 2d 85,             92,   280

N.W.2d 280 (1979) ("The credibility of witnesses and the weight

given     to     their      testimony         are        matters      left     to       the     jury's

judgment . . . .") (citation omitted).                             The judge had only to

ask     whether       the       truth   or     falsity           of   the      statements           was

ascertainable.           For the reasons we surveyed above, it was well

within his competence to find, as a legal matter, that it was.

       ¶36     To support its contrary view, the court of appeals

relied upon a lone footnote from one of its previous opinions.

See Lambert v. Hein, 218 Wis. 2d 712, 724 n.4, 582 N.W.2d 84

(Ct. App. 1998).                Its reliance was misplaced.                         In the cited

footnote,       the     court      of    appeals          held     that      the     trial       judge

correctly      let     the      jury    consider          whether     the      phrase         "quality

construction," as used in the real estate industry, was puffery.

Id.     It further held that "whether 'puffery' may be construed as

a     warranty       depends      on    the    objective           context         in     which     the

statement      is     made"      and    that    in        the    case     at   bar        "competing

affidavits" precluded the granting of summary judgment.                                             Id.
                                                23
                                                                             No.     2011AP1566



Neither holding is in conflict with our own today.                                 The latter

conclusion——that           puffery      may    also     be    a   warranty     in     certain

contexts——does not speak to whether a statement is puffing in

the     first      place.         The      former      conclusion——that            whether    a

particular phrase in a particular industry constituted puffery

was rightly determined by the jury——is in perfect harmony with

our    own    position      that     the      question       of   puffery    is     sometimes

appropriate for disposition at summary judgment, and sometimes

not.     Lambert does not impose an absolute bar on circuit courts
dealing with puffery on motions for summary judgment, and the

court    of     appeals below should             not     have     expanded     its    narrow,

fact-specific holding as it did.

       ¶37    The approach we take here is consistent with the well-

reasoned precedent of other jurisdictions.                           A number of courts

have    refrained from drawing a                 bright       line   around        puffery   in

terms of whether it presents a question of fact or of law,

recognizing, as we do, that while it is usually a question of

fact it can at times be a question of law, and that courts

should apply the usual summary judgment standard to figure out

which label fits more closely in a given case.                                     See Donald

Braman et al., Some Realism About Punishment Naturalism, 77 U.

Chi. L. Rev. 1531, 1571 n.146 (2010) ("Many of the issues in

puffery . . . are often resolved as matters of law rather than

fact.") (emphasis added); Snyder v. Farnam Cos., 792 F. Supp. 2d

712, 723 (D.N.J. 2011) (observing that puffery "is normally a

question      of    fact    for    the      jury")     (emphasis       added)       (internal

quotation        marks      and    citation         omitted);        Redmac,         Inc.    v.
                                               24
                                                                            No.    2011AP1566



Computerland of Peoria, 489 N.E.2d 380, 382 (Ill. Ct. App. 1986)

("Whether the issue [of puffery] is one of law or fact may be

debatable; however, it is generally considered a question of

fact . . . .")             (emphasis        added)     (citations         omitted).         A

substantial majority of decisions resolving the puffery question

do not purport to apply a blanket rule; they simply determine,

with reference to the specific facts and allegations and the

general rules of summary judgment, whether the question can be

resolved as a matter of law by the court or instead requires the

consideration         of    the   jury.        See, e.g.,         Park    Rise    Homeowners
Ass'n v. Resource Const. Co., 155 P.3d 427, 435 (Colo. Ct. App.

2006) ("Turning to the phrase 'quality construction,' we reject

the . . . argument that, as a matter of law, the phrase cannot

be treated as puffery . . . .") (emphasis added); In re Level 3

Commc'ns, Inc. Sec. Litig., 667 F.3d 1331, 1340 (10th Cir. 2012)

("Many    of    the    statements         in   plaintiff's         complaint      are, as a

matter of law, nothing more than puffery.") (emphasis added).

        ¶38    Though such decisions do not explicitly endorse our

conclusion       that puffery          is    ordinarily       a    matter   of    fact,   but

sometimes one of law, they follow the same rule we set forth

here.         For rather than treating puffery as either always or

never a        question of        fact,     they     simply       apply   the    time-tested

summary       judgment       standards         to    the   specific         motions   under




                                               25
                                                                 No.    2011AP1566



review.16    In sum, the circuit court should have held as a matter

of law that the remark was not puffery for purposes of summary

judgment, and on remand it is instructed to do so.17

          B. UNITED'S REMAINING CLAIMS SURVIVE SUMMARY JUDGMENT IN

                                            PART

     ¶39    Having disposed of United's Wis. Stat. § 100.18 claim,

we are left with the balance of its complaint.                Recall that in

addition to § 100.18, United relied upon theories of breach of

contract,     breach    of   express        warranty,   breach     of    implied

warranty, indemnification, and contribution.              These claims were

brought both in its own name and through its assignments from

the homeowners.        The circuit court found all of them failed at

summary     judgment    on   account    of     either   the   economic       loss

doctrine, the speculativeness of the requested damages, or both.

On appeal, the court of appeals reached the opposite conclusion



     16
        To the extent other jurisdictions do employ language
implying   a  more  categorical distinction,   we  respectfully
disagree with them for the reasons stated.   See, e.g., Newcal
Indus., Inc. v. Ikon Office Solution, 513 F.3d 1038, 1053 (9th
Cir.   2008)  ("[T]he  determination  of  whether  an   alleged
misrepresentation 'is a statement of fact' or is instead 'mere
puffery' is a legal question that may be resolved" without the
jury's involvement) (internal quotation marks and citation
omitted).
     17
       Our determination that the statements were not puffery
for summary judgment purposes does not mean that United
automatically prevails on its Wis. Stat. § 100.18 claim.   That
determination will be made by the jury, and the parties are
still entitled to submit evidence to the jury regarding whether
the statements were actually made, whether they constituted
misrepresentation under the statute, and so on.

                                       26
                                                                             No.     2011AP1566



on   each    point.         Both    courts       were   partly      correct        and    partly

incorrect, compelling us to affirm in part and reverse in part.

       1. United's Claims Through the Assignments are Impermissible

       ¶40       Before     explaining         why   the     claims    United        asserted

through the assignments are impermissible, we pause to rebut the

concurrence's           unfounded       and    unshared      assertion     that      no       such

claims exist.

       ¶41       To be sure, the complaint did not explicitly indicate

that United was suing Red-D-Mix through the assignments in the

homeowners' name.             Nevertheless, that has been the uncontested

view of everyone involved in the case from its inception to the

present day.            In the circuit court, both parties proceeded with

the understanding that United was suing both in its own name and

that of the homeowners.                  The circuit court itself memorialized

that   understanding          in    its       summary   judgment      order,       dismissing

"all   claims       asserted       by     United . . . through         the     assignments

from the property owners . . . ."                       (Emphasis added.)                All the

briefs      at    the     court    of    appeals     refer    to    claims     being       filed

through the assignments, as does the court of appeals' opinion

and the petition for review.                    Neither party denies at this late

date, nor did they ever, that United filed claims through the

assignments in the homeowners' name.

       ¶42       Alone    among     every      attorney      or    judge   who      has       ever

participated in this case, from its commencement to today, Chief

Justice      Abrahamson       and       the    two   justices      joining     her       in    the

concurrence, believe United did not sue in the homeowners' name

in addition to its own.                   Contrary to their suggestion, we are
                                                27
                                                                         No.    2011AP1566



not    here    adopting       "Red-D-Mix's         mistaken      depiction       of    the

complaint,"     concurrence,          ¶68,    we   are    adopting     the      depiction

shared by the attorney who drafted and filed the complaint, the

attorney who responded to it, the circuit court that ruled on

it, and the three judges on the court of appeals panel who heard

the case before us.            Perhaps the most definitive statement on

the matter comes from               the   lawyer    who   has    represented       United

throughout these proceedings, who wrote in her response to Red-

D-Mix's      motion     for    summary       judgment     that     her     client      was

"asserting causes of action in its own name as well as on behalf

of the property owners as alternative theories of recovery."

(Emphasis added.)            This unequivocal sentence was penned by the

same person who signed the complaint itself.                     It is difficult to

comprehend why the concurring justices believe they understand

the nature of the complaint better than its author.

       ¶43    The           concurrence's            unexplained               assertions

notwithstanding, we do not believe the circuit court or parties

will   have    to     guess    as    to    which    claims      were   filed      in   the

homeowners'         name,    given    that    all    of    them    have        repeatedly

referred to those claims throughout the litigation, including

the circuit court in the very order the concurrence paraphrases.

See id., ¶65 (noting that the circuit court summary judgment

order dismissed "claims asserted through the assignments from

the property owners . . . .").               The concurrence thinks we should

be more "precise in telling the circuit court which parts of the

complaint it should strike."                 Id., ¶70.        We do not share its

doubts over the circuit court's abilities, or think any more
                                             28
                                                                           No.     2011AP1566



precision          is    required,    as    it     already    dismissed      the       claims

asserted through the assignments and thus presumably knows what

those claims are.

        ¶44    In       profoundly    misleading        fashion,      the    concurrence

suggests      that       United agrees that the           assignments        are       a    "red

herring" in the same sense that the concurrence uses that term.

Id., ¶66.          United calls the assignments a "red herring" in its

brief here with respect to its argument on damages, and the term

was employed in the same context at oral argument.                                As shown

below, we agree with United on that point.                          Neither United nor

anyone else, aside from the concurrence, has ever contended that

the assignments are a "red herring" in the sense that United did

not    sue    through       them.         Everyone     else   has    taken       the       exact

opposite position at every stage of the litigation.

        ¶45    The concurrence helpfully attaches the complaint.                             We

might       just    as    easily     attach      the   numerous      documents         making

abundantly clear how novel the concurrence's interpretation of

that complaint is.             To name just a few of these documents, there

is United's brief opposing summary judgment, the circuit court
order, the briefs at the court of appeals, the court of appeals'

opinion, and the petition for review.                    Trees should not have to
die    in     order      for    us   to    substantiate       such    an    obvious         and

uncontested point, so we decline to add any appendices of our
own.

       ¶46    Returning from the concurrence's imagined version of

the case to the actual dispute, consider again the court of

appeals opinion.               In reversing the trial judge, the court of
                                              29
                                                         No.    2011AP1566



appeals'   entire   analysis   of   Linden   occupies   two    sentences,

quoted here in full:

     The trial court concluded that the homeowners could
     not sue Red-D-Mix on their own, and so had no rights
     to assign, because a property owner cannot sue a
     subcontractor directly.    See Linden, 283 Wis. 2d 606,
     ¶¶17, 32. While the homeowners may have had no rights
     against Red-D-Mix to assign, the Assignments neither
     strip from United its right to sue Red-D-Mix nor
     protect   United  from   [the]   homeowners'  potential
     breach-of-contract claims.
     United Concrete, No. 2011AP1566, ¶11.          This is a rather
confusing train of thought.         The court of appeals accurately

sums up the trial judge's reasoning, but then proceeds to ignore

his conclusion.     If the circuit court was in fact correct that

the homeowners cannot sue Red-D-Mix, rendering the assignments

nullities, then summary judgment was in fact properly granted on

the claims United brought through the assignments.            Rather than

resolving that issue, the court of appeals decided instead to

address only the claims in United's own name and the potential

claims by the homeowners against United.         In other words, the

"may" in the paragraph quoted above leaves a crucial question

unanswered, and creates needless uncertainty on remand.

    ¶47    Linden answers the question definitively.           There, we
held that the economic loss doctrine18 prevents a homeowner from


     18
       The economic loss doctrine, as interpreted by Linden v.
Cascade Stone Co., Inc., 2005 WI 113, 283 Wis. 2d 606, 699
N.W.2d 189, was raised and fully briefed at the court of
appeals, and discussed by that court, and it was raised in the
petition for review and fully briefed here.     It is properly
before us.

                                    30
                                                                                  No.    2011AP1566



suing a subcontractor in tort for purely economic loss.                                    Linden,

283 Wis. 2d 606, ¶¶26-31.                    Expounding, we determined that a tort

suit     does           not   lie    "when . . . the           defective      product       is      a

component part of an integrated structure or finished product"

and    the     damage          is   solely     "to      an    integrated      product,          which

results in only economic loss," rather than physical harm or

personal           injury.          Id.,     ¶28     (internal      quotation           marks    and

citation           omitted).         To     hold    otherwise,        we    reasoned,       "would

require a finding of property damage in virtually every case in

which" the only harm that occurs is to the product itself, "and

would prevent contractual rules from serving their legitimate

function           in     governing        commercial        transactions."              Id.,     ¶27
(internal quotation marks and citation omitted).

        ¶48        The claims United asserted against Red-D-Mix through

the    assignments             squarely      fit     within     the       class    of     lawsuits

governed by Linden.                 United had a contract with Red-D-Mix, and

contracts with the homeowners.                       No contract existed between Red-

D-Mix        and    the       homeowners.          With      only   two    exceptions,19         the
        19
       There is evidence in the record suggesting that two
properties did suffer damage outside of the concrete itself, one
involving grass growing in a driveway and problems with
landscaping, the other involving unusual wear and tear to a
carpet. At the summary judgment hearing, counsel for Red-D-Mix
suggested that these two claims could not be dismissed under the
economic loss doctrine.    It was a prudent concession.      See
Linden, 283 Wis. 2d 606, ¶6 ("Economic damages" covered by the
doctrine "do not include losses due to . . . damage to other
property.") (citation omitted).      Because these homeowners'
claims are not barred by the economic loss doctrine, and because
damages as a general matter are not fatally speculative, see
infra ¶55, they should be included in the case that goes to
trial.

                                                   31
                                                                   No.    2011AP1566



damages were to the installed concrete itself, and there were no

physical injuries or personal harm.           In short, the three parties

stood in the same position as those discussed in Linden.20

     ¶49     Although    the    plaintiffs    in    Linden      abandoned     their

contract claims before their case reached our court, id., ¶31,

we   nevertheless       spoke    unequivocally      on    the     subject.       In

situations like these, we said, "homeowners retain contractual

remedies against the general contractors, who in turn have their

own remedies against the subcontractors."                Id., ¶30.       That is to
say, contractual claims should be brought between parties in

privity of contract.           The homeowners and Red-D-Mix were not in

privity, and United cannot create a cause of action for its

customers where none lies.21

     ¶50     United attempts to distinguish Linden on two principle

grounds.22     Neither     is   convincing.        First,    it   stresses     that
     20
       United argued to the circuit court that Linden applies
only to subcontractors and not suppliers, and that Red-D-Mix can
only be characterized as the latter.     It does not press that
argument here so we do not take it up in detail. Suffice it to
say, as we do above, that the parties stand in the same position
vis-à-vis one another as did the parties in Linden in all
relevant respects.
     21
       Both     parties grant that if any property                   owners sue
United, it      can then bring Red-D-Mix in as a                     third-party
defendant.
     22
       In addition to these two points, United maintains that
Red-D-Mix conceded the assignments' validity in a prior motion
during the litigation over insurance coverage in the case.    It
provides no citations and scant argument in support.     We read
the motion simply as arguing, in a largely unrelated proceeding,
that the homeowners transferred whatever rights they might have
had to sue Red-D-Mix to United, not that they necessarily
enjoyed such rights.

                                      32
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"privity of contract exists between the opposing parties" here,

while it did not in Linden.             This is true, but immaterial.            The

privity of contract between United and Red-D-Mix has nothing to

do with the relationship between the homeowners and Red-D-Mix,

or   the      ability   of   the   former      to    sue   Red-D-Mix.      If    the

homeowners cannot file an action against Red-D-Mix, then United

cannot do so in their name.

        ¶51   Lastly, United urges us to accept the claims on the

basis      that   Linden     imposed    no     bar    on   third-party    contract
beneficiary actions.          We grant that Linden left unsettled the

permissibility of such suits.                 Id., ¶31.      That question will

remain open, as United did not claim, in its complaint, that it

was exercising any rights to sue on behalf of the homeowners as

third-party beneficiaries.

     ¶52      To summarize, Linden precludes United from suing Red-

D-Mix in the name of the homeowners.                 The circuit court properly

dismissed those claims on summary judgment, and the court of

appeals improperly reinstated them.                  It is reversed insofar as

it did so, and those claims will not go to trial.

               2. United's Claims in Its Own Name are Permissible

     ¶53      The circuit court rejected United's claims brought in

its own name on the grounds that damages were too speculative.

In   the      court     of   appeals'        judgment,     however,     they    were

sufficiently concrete to justify a trial.                    We agree with the




                                         33
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court of appeals, though we overrule its premature determination

regarding the effect of the assignments.23

     ¶54    In   order   to   survive   summary     judgment,      a   complaint

sounding in contract must allege damages.              See, e.g., Black v.

St. Bernadette Congregation of Appleton, 121 Wis. 2d 560, 566,

360 N.W.2d 550 (Ct. App. 1984).            Such allegations must reflect

"[t]he     fundamental   idea    in   allowing     damages   for       breach    of

contract," that is, "to put the plaintiff in as good a position

financially as he would have been in but for the breach" by

giving    the    aggrieved    party   "what   he   contracts     for     or     its

equivalent."        Cent.     Brown   Cnty.   Water    Auth.     v.     Consoer,

     23
        United objects to Red-D-Mix's briefing of this issue on
the grounds that it was not presented in the petition for
review.    Although the word "damages" does not appear in the
petition's statement of issues, the question of whether damages
are speculative is closely intertwined with the question of
whether the action is barred by Linden, which was raised.     An
examination of our own discussion shows as much, as does
inspection of the court of appeals opinion, the briefs, or the
arguments to the trial court.    In a word, Red-D-Mix has always
taken the position that the claims asserted through the
assignments are invalid because the property owners cannot sue
Red-D-Mix under Linden, and that is one of the reasons why
United's own damages (which are in part claimed on behalf of the
owners) are speculative.    It has taken that position at every
stage of litigation and in every court, and it took it in its
petition for review. In this sense, the two issues are not only
linked, each is part and parcel of the other.

     Moreover, even though the petition did not specifically
mention damages in its framing of the issue, it did discuss it
at some length in the argument section of the petition, putting
both United and the court on notice that it was inherent in the
issue raised.    To refuse to address it would be to adopt a
crimped reading of our procedural rules, and would impair the
comprehensiveness of our     decision and create    unnecessary
ambiguity on remand.

                                      34
                                                                           No.      2011AP1566



Townsend, Envirodyne, No. 09-C-0131, 2013 WL 501419, unpublished

slip op. at *10 (E.D. Wis. Feb. 11, 2013) (quoting Schubert v.

Midwest Broad. Co., 1 Wis. 2d 497, 502, 85 N.W.2d 449 (1957) and

DeSombre v. Bickel, 18 Wis. 2d 390, 398, 118 N.W.2d 868 (1963)).

A party satisfies its burden at summary judgment with respect to

damages if it advances evidence that it did not "receive[] the

benefit of its bargain." Id.                One way of making this showing is

to submit evidence that raises a material question of fact as to

whether a product or service provided "was of lesser quality"

than guaranteed under the agreement, and whether its defects led

the    plaintiff        to    incur    "costs      needed   to    repair      the    alleged

defects."         Id.   As a more general matter, to be recoverable in a
contract      claim,         damages   have      to    "flow[]     from    the      breach."

Denhart      v.    Waukesha      Brewing        Co.,   21   Wis. 2d 583,         595,     124

N.W.2d 664         (1963)      (citation        omitted),        and   they      "must     be

reasonably foreseeable at the time the contract was made as a

probable result of the breach."                     Peterson v. Cornerstone Prop.

Dev., LLC, 2006 WI App 132, ¶50, 294 Wis. 2d 800, 720 N.W.2d 716

(internal quotation marks and citation omitted).

       ¶55    The record contains evidence suggesting that flatwork

required replacement because of the deterioration in Red-D-Mix's

concrete.         United has already replaced one driveway, belonging

to    the    Beyers,     pursuant      to   a      settlement     with    the    aggrieved




                                              35
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party.24          Another couple, the Michaels, demanded a reservation of

rights to sue United in return for executing the assignment,

entitling them to hale United into court at any time.                               Replacing

the work done for either the Beyers or the Michaels would not

have been necessary if United had procured durable concrete from

Red-D-Mix.            The     latter's       failure      to   supply        such    concrete

breached its contract with United, and the cost of replacement

is directly attributable to that failure, i.e., it "flow[s] from

the   breach."              Denhart,    21    Wis. 2d at       595.      Furthermore,        a

competent          supplier     of     concrete     knows      that     if     it    sells   a

substandard          product,        the     end-users     will       likely       see   their

properties marred.             Red-D-Mix was aware of that inevitability as

well,        or    should    have    been,     so   the   damages      were     "reasonably

foreseeable at the time the contract was made as a probable




        24
       In its initial brief, Red-D-Mix submits that the Beyers
should be excluded from the equation because evidence of its
case in small claims court was only given to the circuit court
presiding over this matter after summary judgment was entered
below.    However, it concedes that "reference to" the small
claims litigation was made prior to that date in circuit court,
and that the stipulation and order calling for the replacement
preceded the summary judgment hearing.       Red-D-Mix does not
challenge the veracity of United's representations to the
circuit court regarding the Beyers' case, nor the nature of the
order.   The trial judge was made adequately aware of the case
and United's reliance upon it for us to consider it here.

                                               36
                                                                        No.     2011AP1566



result        of    the    breach."         Peterson,     294    Wis. 2d 800,        ¶50.25

Damages are not speculative.

        ¶56       One final point.           The above-quoted passage from the

court        of    appeals     opinion      regarding     the    assignments        creates

confusion          on    the   question     of     damages,     in   addition       to   the

ambiguity it inserts into the economic loss doctrine.                         To repeat

the most essential sentence, the court of appeals announced that

"[w]hile the homeowners may have had no rights against Red-D-Mix

to assign, the Assignments neither strip from United its right

to sue Red-D-Mix nor protect United from homeowners' potential

breach-of-contract claims."                  United     Concrete,     No.   2011AP1566,
¶11.     In the preceding section we had occasion to comment on the

problematic ambiguity of the term "may" in the first sentence.

Now,     we       must    overrule    the    premature     statement     made       in   the

second.

       ¶57         As shown above, there was sufficient evidence in the

record regarding damages for United to survive summary judgment.

The    court        of    appeals    did    not    need   to    construe      the    legal

significance of the assignments in order to reach its result,

let alone to do so with no explanation, no consideration of the


        25
       Obviously, nothing in this opinion should be taken to
limit United, in its showing of damages, to expenses undertaken
with respect to the Beyers' and Michaels' properties. We focus
on those properties only because they are sufficient for United
to surmount the hurdle of summary judgment. United is entitled,
like all plaintiffs, to prove up to the jury's satisfaction any
damages that stem from the breach and which were reasonably
foreseeable by Red-D-Mix at the time it contracted to supply the
relevant concrete to United.

                                              37
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assignments' terms, and no citation to authority.                              We overrule

its     comments      on    the     status        of   the     assignments.              If     the

assignments become relevant in any further proceedings before

the circuit court, they can be interpreted afresh at that time.

                                        V.        CONCLUSION

        ¶58       As shown above, the court of appeals was in the main

correct, but reached the wrong result in one respect and was

overbroad or imprecise in others.                      To wit, the court of appeals

properly reversed the circuit court's ruling regarding puffery,

though       it    incorrectly      determined          that     puffery     is     always        a

question of fact for the jury.                    On the next issue, the court of

appeals       erred    in    its    determination             that   the    claims        United

asserted       through      the    assignments         were    valid,      when,    with        two

exceptions,26 the economic loss doctrine barred the homeowners

from suing Red-D-Mix and thus barred United from suing in their

name.         Finally,      the    court     of    appeals       rightly     reversed           the

circuit court for finding all the asserted damages speculative,

though        in    doing    so    it   prematurely            interpreted         the        legal
significance of the assignments.                       Its language construing the

assignments is overruled.
      ¶59      When the case is returned to it, the circuit court is

directed to dismiss the claims asserted through the assignments,
and to allow the remaining claims to proceed to trial.                                          We

affirm in part, reverse in part, and remand with instructions.



        26
             See supra note 19.

                                              38
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     By   the   Court.—The   decision   of   the   court   of     appeals   is

affirmed in part and reversed in part, and the cause is remanded

to the circuit court with instructions.




                                   39
                                                                     No.    2011AP1566.ssa




       ¶60    SHIRLEY S. ABRAHAMSON, C.J.                  (concurring).          I agree

with the court of appeals' unpublished per curiam opinion in

this case.        Like the court of appeals, I would reverse the order

for summary judgment and remand the matter to the circuit court

for trial without any specific instructions.

       ¶61    I have trouble with the majority opinion's instruction

to the circuit court "to dismiss the claims asserted through the

assignments, and to allow the remaining claims to proceed to

trial."       Majority op., ¶¶3, 59.               To take a page out of the

majority opinion's play on the word "concrete," I suggest that

the    majority        opinion's        instruction          "to   dismiss        [United

Concrete's]       claims     asserted       though     the    assignments"        is     not

concrete enough.

       ¶62    Just what claims does the majority have in mind that

have   to    be   dismissed?         Why    make     the   circuit      court     and    the

parties guess which claims the majority wants dismissed?                                Just

tell us!

       ¶63    As I read the complaint, which I have attached hereto

as    Exhibit     A,   United      Concrete      has   not    asserted      any    claims

through the assignments.             United Concrete's complaint has seven

numbered claims.         All the claims United Concrete asserts in the

complaint       are    for   injuries       United     Concrete      alleges      it    has

suffered as a result of Red-D-Mix's conduct.

       ¶64    The circuit       court      order   dismissed       United     Concrete's

entire      complaint.       The    substantive        portion     of   the     dismissal

order reads as follows:

                                             1
                                                No.    2011AP1566.ssa

     NOW, THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that
     Red-D-Mix Concrete, Inc.'s motion for summary judgment
     is granted. The Court rules that all claims asserted
     by United Concrete & Construction, Inc. through the
     assignments from the property owners and all tort
     based claims are precluded by the holding in Linden v.
     Cascade, 2005 WI 113, 283 Wis. 2d 606, 699 N.W.2d 189
     and the Economic Loss Doctrine.

     IT IS FURTHER ORDERED AND ADJUDGED that, with respect
     to the Plaintiff's Wis. Stat. § 100.18 claim, the
     statements made by Red-D-Mix Concrete, Inc.'s salesman
     constitute "puffery" and are not actionable under the
     statute.

     IT IS FURTHER ORDERED AND ADJUDGED that, with respect
     to United Concrete & Construction, Inc.'s remaining
     claims, the Plaintiff has not sufficiently established
     damages, to support its claims (emphasis added).
     ¶65   This circuit court order organizes United Concrete's

complaint into four categories of claims: (1) claims asserted

through the assignments from the property owners; (2) tort based

claims; (3) Wis. Stat. § 100.18 claim; and (4) remaining claims.

The circuit court order does not make clear which of the seven

claims in United Concrete's complaint it viewed as being based

on the assignments.

     ¶66   The reality of this case is that the whole issue of

the assignments is, as United Concrete has maintained, a "red

herring,"1 diverting attention from the real issues:    Did Red-D-


     1
       Others have viewed the discussion of the assignments in
this case as a "red herring."       At oral argument, Justice
Roggensack commented about the assignments to Red-D-Mix's
counsel during rebuttal as follows:

    Whatever is going on here [with the assignments], to
    me it feels like a "red herring," what's going on with
    the homeowners.     They're not here.    We've got a
    dispute between Red-D-Mix and United and that's what I
    think we're gonna focus on here.

                               2
                                                                    No.    2011AP1566.ssa


Mix   violate     Wis.    Stat.       § 100.18,     did    Red-D-Mix       breach     the

contract,    and     is        United      Concrete's        claim        for    damages

speculative?

      ¶67   The   majority       opinion        confirms   the    reality       of   this

case, explaining         at    ¶41:     "The     complaint    did    not     explicitly

indicate that United was suing Red-D-Mix through the assignments

in the homeowners' name."

      ¶68   While    recognizing          the    reality     of     this    case,     the

majority     opinion          sometimes     accepts        Red-D-Mix's          mistaken

depiction   of    the     complaint.2           Indeed,    the    majority      opinion

repeatedly vacillates between reality and spin.

      ¶69   The     majority          opinion's     adoption        of     Red-D-Mix's

mistaken depiction of the complaint rather than the reality of

the complaint culminates in the majority opinion's instruction

to the circuit court "to dismiss the claims asserted through the

assignments, and to allow the remaining claims to proceed to

trial."

      ¶70   I vote for concrete reality.                   The majority opinion

should be precise in telling the circuit court which parts of

the complaint it should strike.



     An audio recording of the oral argument can be found on the
Supreme Court's website at http://www.wicourts.gov/opinions/
soralarguments.htm, at 1:13:58 – 1:14:15.
      2
       See, for example, ¶¶39, 41, 43, 48 of the majority
opinion, treating the complaint as if United Concrete's claims
for "breach of contract, breach of express warranty, breach of
implied   warranty,  indemnification, and  contribution"  were
"brought both in [United Concrete's] own name and through its
assignments from the homeowners."

                                           3
                                                        No.     2011AP1566.ssa


     ¶71   I   am   authorized   to   state   that   Justices     ANN   WALSH

BRADLEY and N. PATRICK CROOKS join this opinion.




                                      4
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EXHIBIT A




    1
    No.   2011AP1566.ssa




2
    No.   2011AP1566.ssa




3
    No.   2011AP1566.ssa




4
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5
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6
