### COURT OF APPEALS DECISION DATED AND FILED November 20, 2019

Sheila T. Reiff Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W I S . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2018AP1758 Cir. Ct. No. 2017CV83 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

A NUSHREE M EHROTRA AND H IMANSHU S HARMA ,
P LAINTIFFS - A PPELLANTS ,

V .
W ILLIAM M. C AMPBELL , S ANDRA A. C AMPBELL AND R ICHARD W. S CHALK ,
D EFENDANTS ,
R OBERT K RECAK ,
D EFENDANT - R ESPONDENT .

APPEAL from an order of the circuit court for Waukesha County:
JENNIFER DOROW , Judge. Reversed and cause remanded

.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.No. 2018AP 1758

2 Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in W IS . S TAT . R ULE 809.23(3).
¶ 1 PER CURIAM. Anushree M ehrotra and Himanshu Sharma ( collectively, the Sharmas) appeal from an order granting summary judgment to Robert Krecak. They contend that the circuit court erroneously exercised its
discretion in concluding that their witness, James Jendusa , was not qual ified to give an expert opinion, which was necessary to advance their claims against
Krecak . For the reasons that follow , we reverse and remand for further proceedings.

¶ 2 The Sharmas are first time home owners residing in the City of Brookfield. They purchased their home in May 2016.

¶ 3 Prior to their purchase, the Sharmas hired Krecak to perform a home inspection. Krecak noted some cracks in the basement walls but dismissed them

as cosmetic and a nor mal consequence of concrete shrinkage

. ¶ 4 After the purchase, the Sharmas observed many more cracks, most
of which were not reflected in Krecak’s report. They hired Jendusa to examine
their home

. ¶ 5 Jendusa is a structu ral engineer who has inspected over 500
basements for structural and water leakage issues. Upon examining the Sharmas ’ home, h e opined that it had a sinking foundation . He faulted Krecak for not bringing the issue to the Sharmas’ attention.

¶ 6 The Sharmas filed suit against Krecak, alleging breach of contract
and negligence. They also sued the sellers of the home and another structural engineer; however, those claims are not part of this appeal.No. 2018AP 1758

3 ¶ 7 Krecak eve ntually moved for summary judgment . He argued that the Sharmas’ sole expert witness, Jendusa , was not qualified to give an expert opinion as to the standard of care for a home inspector, which was necessary to advance the Sharmas’ claims against Krecak.

¶ 8 Following a hearing on the matter, the circuit court granted Krecak’s
motion. The court agreed that Jendusa lacked the qualifications to testify as an expert in the home inspection industry. It noted that Jendusa had never taken a
ho me inspection test or performed a home inspection himself. It further noted that
Jendusa had admitted in his deposition that he was un familiar with W IS

. S TAT

. § 440.975 (2017

- 18), 1 which sets forth the standards of practice for home inspectors in Wisconsin. Although Jendusa submitted a follow

- up affidavit incorporating § 440.975 in to his analysis, the court rejected it as a sham. Accordingly, it excluded Jendusa’s testimony and dismissed the Sharmas ’ claims against Krecak

. The Sharmas now appea l

. ¶ 9 We review de novo the grant of summary judgment, employing the same methodology as the circuit court. Green Spring Farms v. Kersten , 136
Wis. 2d 304, 314

- 15 , 401 N.W.2d 816 (1987). Summary judgment is proper when there are no ge nuine issues of material fact and the moving party is entitled to judgment as a matter of law. W IS

. S TAT

. § 802.08(2).

¶ 10 The summary judgment decision in this case turned entirely on the circuit court’s conclusion that Jendusa lacked the qualifications to testify as an expert in the home inspection industry. We review a circuit court’s decision to

1 All references to the Wisconsin Statutes are to the 2017

- 18 version.No. 2018AP 1758

4 exclude testimony under an erroneous exercise of discretion standard. State v.
Giese , 2014 WI App 92, ¶16, 356 Wis. 2d 796, 854 N.W.2d 687.

¶ 11 On appeal, the Sharmas contend that the circuit court erroneously
exercised its discretion in concluding that Jendusa was not qualified to testify as an expert in the home inspection industry. They accuse the court of exceeding its gatekeeping function. We agree.

¶ 12 It is true that Jendusa has never taken a home inspection test or performed a home inspection himself. However, one does not have to be licensed in a profession in order to testify about its standard of care. See Kerkman v. Hintz , 142 Wis. 2d 404, 423, 418 N.W.2d 795 (1988). Rather, one simply has to be qualified as an expert in the area in which the testimony will be given. Id. ; s ee also Green v. Rosenow , 63 Wis. 2d 463, 471, 217 N.W.2d 388 (1974) (“ It is the particular qualifications of the witness in relation to the particular issue which should control rather than the label of a profession or trade

. ” (quoting Roberts v.
State , 41 Wis. 2d 537, 551, 164 N.W.2d 525 (1969)) )

. ¶ 13 Here, the record establishes that Jendusa was qualified as an expert in the home inspection industry. A s noted in his affidavit, Jendusa is the author of standards adopted by the State of Wisconsin in its code for foundation repair. He is a member of the Wisconsin Association of Home Inspectors. He has given
instruction and lectures to home inspectors on how to inspect and report on
basement walls. He has also been asked to sit on an arbitration panel to review claims of negligence aga inst home inspectors and then to render an opinion as to whether they were negligent or not. Thus, his background as a structural engineer overlapped considerably with the work of home inspectors.No. 2018AP 1758

5 ¶ 14 Although Jendusa expressed unfamiliarity with the statutory standards of practice for home inspectors at the time of his deposition, the fact that he later reviewed and incorporated them into his analysis does not render his
follow

- up affidavit a sham. Any initial unpreparedness on his part simply goes to the weight of his expert opinion , not its admissibility in the first instance.

By the Court.

— Order reversed and cause remanded

. This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5.