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COURT OF APPEALS DECISION DATED AND FILED June 27, 2006 Cornelia G. Clark Clerk of Court of Appeals |
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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 Wis. Stat. 808.10 and Rule 809.62. |
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APPEAL from a judgment of the circuit court for Dunn County: william c. stewart, Judge. Affirmed.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
1 PER CURIAM. George Gue and Helena Watts (collectively Gue) appeal a money judgment in favor of Marty Reinier and Groepper Excavating. Gue argues the circuit court erred by concluding Gue was liable to Reinier and Groepper for costs arising from the construction of a deck. Gue also contends the circuit court erroneously denied Gue damages for unfinished and defective work, as well as the claimed wrongful destruction of trees on his property. We reject Gues arguments and affirm the judgment.
Background
2 In May 2000, Gue contracted with Reinier, an Amwood Homes dealer, for the construction of a new home. Although there is no written document signed by both parties setting forth the terms of the agreement, there are documents reflecting the specifications for the base home and an estimate totaling $226,783 for the construction of that home. The circuit court characterized the parties understanding as a time and material agreement, with some pre-determined caps on selected components. During the homes construction, Gue periodically requested changes and raised any issues he had with the construction. In correspondence to Reinier near the end of November 2000, Gue itemized numerous construction issues he wanted addressed and notified Reinier that a penalty would begin to accrue on December 1, 2000, if the dwelling was not ready for occupancy by that date. Gue moved into the house at the beginning of January 2001.
3 Throughout construction, Reinier submitted five invoices for completed work and Gue remitted payment. In the summer of 2001, Gue met with Reinier and Groepper regarding excavation work and construction of a deck. After the deck was completed, Reinier submitted a sixth invoice in the amount of $10,042.35 for materials and construction, in addition to $952.13 for Groeppers excavation work. According to Reinier, Gue informed him that he wanted to pay Groepper directly.
4 Ultimately, in September 2002, Groepper commenced a small claims action against Reinier seeking payment for the excavation work. In turn, Reinier impleaded Gue, denying responsibility for the payment owed to Groepper and seeking $10,042.35 from Gue for the decks construction. After a court trial, the court awarded Reinier and Groepper the respective amounts they sought for materials, construction and excavation, offsetting Reiniers award by amounts Gue paid for rent and storage arising from the delayed occupation of the home. This appeal follows.
Discussion
5 Gue argues the circuit court erred by
concluding that he was liable to Reinier and Groepper for the costs arising
from construction of the deck.
Specifically, Gue contends that he did not contract directly with
Groepper for the excavation and he cannot, therefore, be liable to Groepper for
the excavation cost. Next, Gue claims
that his initial agreement with Reinier was a fixed price contract that
included the cost of deck construction.
Finally, Gue argues the circuit court erroneously denied him damages for
unfinished and defective work, as well as the claimed wrongful destruction of
trees on his property. Essentially, Gue
challenges the sufficiency of the evidence to support
the courts judgment.
6 When
considering the sufficiency of the evidence, we apply a highly deferential standard of review. The trial
courts factual findings will not be reversed
unless they are clearly erroneous. See
Wis. Stat. 805.17(2)
(2003-04). We review the record in the
light most favorable to the trial courts findings to determine whether the findings are clearly
erroneous. Rohde-Giovanni v.
Baumgart, 2003 WI App 136, 18, 266 Wis. 2d 339, 667 N.W.2d 718. When we undertake to determine whether a
finding is clearly erroneous, rejection is not warranted merely because there
is evidence in the record to support a contrary finding. The contrary evidence, rather, must
constitute the great weight and clear preponderance of the evidence. Id. (citation omitted). The credibility of witnesses and the weight
to be attached to that evidence are matters uniquely within the province of the
trial court when
it acts as the finder of fact. See
Global Steel Prods. Corp. v. Ecklund Carriers, Inc., 2002 WI App
91, 10, 253 Wis. 2d 588, 644 N.W.2d 269.
7 Here,
Groepper testified that he did some excavation work on Gues property during
the initial construction of the house.
Groepper further testified that in May 2001, he met with both Gue and
Reinier regarding excavation work necessary for construction of a deck. According to Groepper, he took directions at
that time directly from Gue regarding the work to be done and sent the invoice
to Reinier out of habit, as that is what he had done during the houses
construction. The circuit court
ultimately found that Groeppers excavation work during the summer of 2001 was
not included in the original estimate for construction of the house, and that
Gue was directly responsible to Groepper for the payment sought. The evidence supports the courts
conclusions.
8 With
respect to the decks construction, Gue challenges the courts conclusion that
the house was built under a time and material contract, claiming instead that
the original estimate constituted a fixed-price contract. Our supreme court has recognized that
[w]hen one hires a contractor to do work and does not make a specific contract
for a definite sum, it is generally understood to be for time and material as
that contractor does business. LaVelle
v. DeLuca, 48 Wis. 2d 464, 469, 180 N.W.2d 710 (1970). Here, the subject document, by its terms,
declares this form is for estimating purposes only. Consistent with a time and material contract, Gue testified at
trial that there were numerous upgrades and modifications that were either
requested or agreed to during construction.
Gue nevertheless intimates that because the original estimate included a
$9,600 quote for construction of a deck, he has already paid for the deck. A review of the five invoices submitted
during the houses construction, however, supports the circuit courts finding
that Gue was neither billed for nor did he pay for the deck materials or
construction. The deck was completed in
late summer 2001 and the sixth invoice, requesting payment for the decks
construction, was sent to Gue in December 2001. The evidence supports the courts conclusion that Gue is
responsible to Reinier for the cost of constructing the deck.
9 Turning to Gues counterclaim, Gue argues he was entitled to recoup amounts paid over the contract price for subcontractors hired directly by him to either remedy defects or complete unfinished items. As to unfinished items, this argument assumes, however, that the parties entered into a fixed-price contract. As noted above, the evidence supports the circuit courts conclusion that the parties entered into a time and materials contract. Gues claims of overpayment therefore fail. To the extent Gue claims he is entitled to damages for the quality of Reiniers work, Gue signed a document on January 25, 2001, accepting the home as completed with three specific exceptions that were either completed or corrected during the first few months of 2001. Moreover, James Townsend, a field supervisor for Amwood Homes, testified that during conversations with Gue in 2001, Gue did not criticize Reiniers work and indicated he was very satisfied with the home. The evidence supports the circuit courts conclusion that Gue was not entitled to damages for his claims of defective or unfinished work.
10 Although the circuit court offset Reiniers award by amounts Gue paid for one months rent and storage arising from the delayed occupation of the home, Gue argues he should have received an offset for the amount of two months rent and storage. Gue occupied the home in early January 2001, one month later than Gue directed the home to be completed. An offset of one months rent and storage is therefore supported by the record.
11 Finally, Gue contends the circuit court erred by denying him damages for the claimed wrongful destruction of five trees on his property. In his counterclaim, Gue alleged for the first time that a subcontractor cut down the wrong trees. Although it is undisputed that trees were removed from the building site, there was no evidence regarding the size or location of the subject trees, nor when or by whom they were removed. Gue alleged each tree was worth $200; however, the weight to be attached to a non-expert owners testimony is for the trier of fact. DHuyvetter v. A.O. Smith Harvestore, 164 Wis. 2d 306, 323, 475 N.W.2d 587 (Ct. App. 1991). Ultimately, the circuit court concluded the record was insufficient to support Gues claim for damages arising from the removal of trees. Because the record supports the circuit courts conclusions, we affirm the judgment.
By the Court.Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5 (2003-04).