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COURT OF APPEALS DECISION DATED AND RELEASED February 13, 1997 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-2334-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
L. QUILLIN &
ASSOCIATES, INC.,
Plaintiff-Respondent,
v.
SNOW FLAKE SKI AND
GOLF CLUB,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Vernon County:
MICHAEL T. KIRCHMAN, Judge. Affirmed.
Before Eich, C.J.,
Vergeront and Deininger, JJ.
PER
CURIAM. Snow Flake Ski and Golf Club appeals from a money
judgment in favor of L. Quillin & Associates, Inc., an advertising
agency. Snow Flake paid Quillin $4,200
for advertising services. Quillin
demanded an additional $2,400, resulting in this lawsuit. Because we conclude that the trial court
properly granted judgment on Quillin's claim, we affirm.[1]
In 1994, Quillin
provided advertising services for Snow Flake's annual ski jump
competition. Quillin billed $3,900 in
printing costs for brochures, posters, etc., and $1,600 for agency labor
costs. In 1995, Snow Flake again hired
Quillin to provide a set of printed advertising materials for the event. This time Quillin billed $4,900 for printing
costs and $2,000 for agency labor costs.
Snow Flake refused to pay more than $4,200, however, contending that it
had only agreed to pay printing costs plus tax in that amount, and had never
agreed to pay a separate charge for labor.
Evidence at the bench
trial showed that in 1994 Snow Flake's representative knew that Quillin billed
labor costs separately from printing costs, which were determined by bids
received from printing concerns. Quillin's
agent on the account, Karen Sibenaller, assumed in 1995 that Snow Flake
remained aware that printing costs and labor costs were separate billing
items. She provided Snow Flake with a
$3,996 written estimate of printing costs, but never discussed labor costs with
its representatives, Greg Lunde and Jeff Houghtaling.
The dispute arose
because Lunde and Houghtaling were not involved in the 1994 contract and,
contrary to Sibenaller's assumption, did not know that labor costs were
extra. They believed that the estimate
Sibenaller provided for printing costs was going to be the entire bill, and
their agreement to engage Quillin was based on that belief. Snow Flake subsequently computed the
contract price at $3,996, plus sales tax, and tendered that amount. Quillin accepted Snow Flake's check but
reserved its claim for an additional $2,400.
The trial court found
all witnesses for both sides credible, and concluded that the dispute arose
from a mutual misunderstanding.
Sibenaller assumed that Lunde and Houghtaling knew about and implicitly
agreed to pay Quillin's labor costs over and above printing, while they,
without knowing details of the 1994 agreement, believed that the printing costs
were the total charge. Sibenaller also
intended the $3,996 figure as a nonbinding estimate, again assuming that Lunde
and Houghtaling knew that the final charge was out of Quillin's hands, based as
it was on whatever printing bids were submitted. On the other hand, Lunde and Houghtaling thought Quillin did its
own printing and that the $3,996 estimate was therefore a firm offer. Because of the parties' mutual
misunderstandings, the court determined that there was in fact no
contract. Quillin received its $2,400
award based on a quantum meruit theory.
The sole issue on appeal
is whether the trial court clearly erred by finding that the parties did not
have a contract with a total charge of $3,996, plus tax, for all of Quillin's
services. If there is no meeting of the
minds on essential terms, there is no contract to enforce. Novelly Oil Co. v. Mathy Const. Co.,
147 Wis.2d 613, 617, 433 N.W.2d 628, 630 (Ct. App. 1988). We review the trial court's finding on this
issue under the clearly erroneous standard.
Id. at 617-18, 453 N.W.2d at 630.
The trial court's
finding is substantially supported by the facts and is not clearly
erroneous. Snow Flake contends that
Sibenaller, as Quillin's agent, gave it a firm contract offer of $3,996, after
learning from Lunde and Houghtaling that the price must be reduced from the
1994 charges. Sibenaller testified,
however, that she did not take their comments regarding costs as a contract
demand, and intended the printing cost estimate not as a firm offer of total
cost, but only as a best estimate of what the printers might charge. If believed, that testimony establishes that
there was no meeting of the minds on the price terms of the contract. The trial court's decision to believe it is
not subject to review. Noll v.
Dimiceli's, Inc., 115 Wis.2d 641, 643-44, 340 N.W.2d 575, 577 (Ct. App.
1983).
In its reply brief, Snow
Flake sets forth an argument based on provisions of the Uniform Commercial
Code. We do not consider arguments
first raised in a reply brief. In
re Estate of Bilsie, 100 Wis.2d 342, 346 n.2, 302 N.W.2d 508, 512
(1981).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.