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COURT OF APPEALS
DECISION
DATED AND FILED
August 13, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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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 No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT II
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Kenny M. Volbrecht,
Plaintiff-Respondent,
v.
Akil C. Jackson,
Defendant-Appellant.
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APPEAL
from a judgment of the circuit court for KENOSHA County: BARBARA
A. KLUKA, Judge. Affirmed in part, reversed in part and
remanded with directions.
¶1 BROWN, C.J. This is an appeal of a small claims
judgment for a builder of a spec home, Kenny M. Volbrecht, against the
subcontractor who originally contracted to provide the drywall, Akil C. Jackson. The small claims court heard the evidence,
examined the exhibits and found that Jackson
had performed in an unworkmanlike manner, causing Volbrecht to have to hire a
third party to repair and finish the job to his damage in the amount of $3875.
¶2 As we understand Jackson’s
appellate brief, he does not really dispute that there were defects in his
work. Rather, he claims that he should
have been given the opportunity to repair the defects and finish the job because
Volbrecht so agreed. He asserts that
Volbrecht breached this promise. Jackson further contends that, beyond repairing his work,
the rest of the third party’s job consisted of the same work that would have
had to have been performed anyway—whether Jackson
had completed the project or someone else finished it. Jackson
cannot understand how he should be expected to pay for such work especially when
he was never paid for that work.
Basic Facts Found by the Small Claims Court
¶3 We will first recite the facts as found by the small claims
court and backed by the record. The
record shows that there was an agreement for Volbrecht to purchase the drywall
and Jackson
would be paid $2500 to hang the drywall and another $2500 to finish the drywall
by taping, mudding and sanding. The
record also shows that Volbrecht testified how he believed Jackson was not hanging the drywall correctly.
The small claims court placed great
weight on the expert opinion of a person the court believed to be a neutral,
unbiased expert, David Masi. Masi does
inspections for construction draws and was performing this task on behalf of
Volbreht’s lender, the Community Bank. The
court recounted Masi as having opined that he would not have accepted the dry
wall put up by Jackson
because there should be fewer seams, no tears and no extra holes. The work was not done to industry standards. The court related how Masi said that there
were many tears, many holes and more seams throughout the house. The court also placed great weight on the
opinion of Masi that the problems could not be fixed and would have to be done
over.
¶4 The small claims court also placed substantial weight on a
series of photographs of the drywall after it had been taped, which verified Masi’s
testimony about shoddy workmanship. The
court, with Masi’s testimony as a guide, saw for itself the holes in the dry
wall, the tears and the poorly installed corners. And the small claims court also accepted
Volbrecht’s testimony, again based on photo exhibits, that the trace ceiling
had to be a complete tear off. Finally,
the small claims court reviewed the work
of the third party drywaller and found that this party had to redo parts of the
job and then finish it.
Whether There Was an Agreement to Allow Jackson to Repair and Finish His Work
¶5 We
will first address Jackson’s
complaint that Volbrecht made an agreement to allow him to come in and repair
the work so that he could finish the job.
During trial, Jackson,
appearing pro se, cross-examined Masi. Jackson asked Masi
whether it was true that Masi told him that he should talk to Volbrecht and
come to an understanding what he “was going to do and to complete the
job.” Masi agreed that this true. Then, the following testimony took place:
JACKSON: And
when I—when I went to Mr. Volbrecht and we came to an understanding and a price
and everything was worked out and I contacted you all, did I contact you all to
say we came to an agreement and I will be going back to finish taping the
drywall?
MASI: Yeah, to
the best of my recollection I remember something about you being back on the
job. You could finish up.
JACKSON: Do you
have any recollection of Mr. Volbrecht telling me that I can not come back on
the job and that he was going to hire someone else and which that he was
terminating his—contract?
MASI: Yeah, I do
believe there was some discussion of that, Akil.
¶6 On redirect, Volbrecht established that Masi was not present
during the discussions between Jackson and him.
Then Volbrecht testified. When asked whether he terminated Jackson from performing
the mudding and taping after the hanging, Volbrecht said:
Yes. After we—we
had tried to resolve it in two different ways, and neither of those ways were
satisfactory to either of us; and so, I had no choice but to terminate.
On cross-examination by Jackson, Volbrecht emphatically denied that there was any
agreement allowing Jackson
to come back and repair and finish the job.
Volbrecht did say that, pursuant to requests by the title company to
“try to work it out” there were discussions about being able to finish but they
broke down when, originally, Jackson had agreed to refund $1400 for the sheets
of drywall that would be needed to repair the situation, but then Jackson
refused to pay it. Volbrecht also talked
about how Jackson’s
subcontractor, who actually did the labor, was not going to come back because
of all the problems with the drywall.
¶7 Thus, Jackson and Volbrecht differed on whether there was an
agreement to allow Jackson
to continue on the job. The small claims
court did not directly resolve this factual conflict, it is true. However, the small claims court did find that Volbrecht no longer
allowed Jackson
to complete his contract and hired someone else to complete it. An appellate court may assume that a missing
finding on an issue was determined in a manner that supports the final
decision. State v. Pallone, 2000 WI
77, ¶ 44 n. 13, 236 Wis.
2d 162, 613 N.W.2d 568.
¶8 We apply Pallone and assume that when the
small claims court found that Volbrecht terminated the contract and had to hire
someone else to fix the defects, it was by implication rejecting Jackson’s testimony
of some sort of accord and satisfaction.
We get this from reading the bench decision of the small claims court
where it is obvious that the small claims court believed Volbrecht, not Jackson.
The small claims court was in the best
position to find who was more credible. Our responsibility as an appellate
court is solely to determine whether the findings of fact of the trial court
are “clearly erroneous.” Wis. Stat. § 805.17(2). By this we mean that the findings of fact
will not be upset on appeal unless they are against the great weight and clear
preponderance of the evidence. In
the Interests of J.A.L., 162 Wis.
2d 940, 966, 471 N.W.2d 493 (1991). Here,
while the testimony of Jackson and Volbrecht contradicted each other, it was up
to the small claims court, as finder of fact, to decide who was telling the
truth. Since the small claims court
found that Volbrecht terminated Jackson for his
shoddy work, we assume that, by implication, the small claims court also
rejected Jackson’s
account that there had been an agreement to allow him to continue this
work.
Damages
¶9 The other issue raised by Jackson is whether he should be responsible
for the cost of finishing the project after repair. Jackson
asserts that $3140 of the allowed damages did not come from any wrongdoing on
his part. This amount, he claims, is the
price of the taping that was done after he was fired. That taping and finishing, he argues, would
have had to be done regardless of who did it and Volbrecht would have had to
pay whoever did the taping.
¶10 We have to agree with Jackson
in part. Somebody would have to do the
taping, even if the hanging had to be redone.
The taping and finishing was supposed to be done by Jackson for $2500. Jackson
was never paid that money and he was not allowed to do that part of the
job. The job was done, but by a third
party. Had Jackson
done everything in a workmanlike manner, Volbrecht would have had to pay $2500
to Jackson. The third party charged Volbrecht $3140 for
work performed. If that $3140 was all
for taping and finishing and not for hanging, then we could say that Volbrecht
had to pay the third party $640 more than he would have had to pay Jackson. If these were the facts, that should be the
amount of damages due on the taping and finishing due to Volbrecht for Jackson’s breach.
¶11 But part of that $3140 may have been for hanging as well as
taping and finishing. The record is
unclear as to exactly what the $3140 was for. Also, Jackson was paid $2000
for the hanging, which—the court found—was done in an unworkmanlike
manner. Should Jackson be responsible for repaying the
entire $2000 paid to him for workmanship that turned out to be shoddy? We do not know. We only know from the evidence that the third
party did not have to start from scratch.
So, how much of the $2000 paid to Jackson
should Jackson
be allowed to keep? That is not our call
to make.
¶12 A perhaps easier way to resolve the damages issue is to look at
it this way: Jackson agreed to do the whole job—hanging,
taping and finishing, for $5000 (the original contract price minus the money
that Volbrecht had to pay for the drywall.)
That is what Volbrecht was entitled to have at the end of the day—the
contract completed for the original price.
In reality, Volbrecht paid Jackson
$2000 for his subpar hanging job and he paid the total of $3875 to get the
taping done plus fix the problems with the hanging. After spending $5875 therefore, Volbrecht had
his house hung and taped. Since he
originally had a contract to get the whole thing done for $5000, he needs to
get $875 back from Jackson. He will then have been made whole. That, plus the court costs, should be the
total judgment. So, in the end, Jackson
ends up getting paid about a thousand dollars for his not-so-hot hanging job,
which is reasonable, since it apparently did not cost as much to fix the
hanging problems as it would have from scratch.
¶13 Whether the above analysis should be how damages are determined
or whether some other analysis is better, is not for us to determine. That is a job for the small claims court on
remand. We reverse and remand with
directions that the court try the damages issue anew and issue new findings on
damages. We repeat that, since Jackson admitted
liability on appeal, only the damages issue shall be tried on remand.
¶14 One loose item remains: Jackson also disputes the
$360 bill from the third party for taping, coating and repairing the sheetrock
on the second floor. He says that this
was extra taping, the second part of the job and not for hanging—which was the
part of the job that the court found to be defective work. He asserts that he is not responsible for
this $360 bill. But the testimony is
that this was part of the repair of the shoddy work and so this amount is
properly attributed to Jackson.
¶15 Therefore, we affirm in part, reverse in part and remand with
directions not inconsistent with this opinion.
By the Court.—Judgment affirmed in part, reversed in part and
remanded with directions.
This opinion will not be
published in the official reports.