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COURT OF APPEALS
DECISION
DATED AND FILED
March 30, 2011
A.
John Voelker
Acting 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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Best Price Plumbing, Inc.,
Plaintiff-Respondent,
v.
Erie Insurance
Exchange,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Waukesha County: Michael
O. Bohren, Judge. Order
reversed and cause remanded with directions.
Before Brown, C.J., Neubauer, P.J., and Anderson, J.
¶1 PER CURIAM. The jury found that Erie
Insurance Exchange did not breach its contract with Best Price Plumbing, Inc.
for Best Price’s work on a property loss insured by Erie.
Postverdict, the circuit court changed the jury’s answer to this
question and granted judgment to Best Price for its invoice amount. We conclude that the circuit court
erred. Therefore, we reverse the circuit
court’s order and remand with directions to enter judgment on the jury’s
verdict.
¶2 Erie’s
insured, Willtrim Group LLC, suffered a loss due to frozen pipes. Best Price provided plumbing services at
Willtrim’s property. Erie
paid Best Price’s invoice via a two-party check payable to Willtrim and Best
Price; Erie
sent the check to Willtrim. The check
bore endorsements by Willtrim and Best Price, but Best Price never received any
of the funds. Best Price sued Erie for the amount due on its invoice claiming that it
had a contract with Erie
for the work. The jury found that Erie entered into a contract for plumbing services with
Best Price,
but Erie did not
breach the contract. On postverdict
motions, the circuit court determined that Erie breached the contract, changed the
jury’s answer, and granted Best Price judgment in the amount due on its
invoice. Erie appeals.
¶3 When “considering a motion to change the jury’s answers to
the questions on the verdict, a trial court must view the evidence in the light
most favorable to the verdict and affirm the verdict if it is supported by any
credible evidence.” Richards v.
Mendivil, 200 Wis. 2d
665, 671, 548 N.W.2d 85 (Ct. App. 1996).
In reviewing the evidence, the trial court is guided by
the proposition that “[t]he credibility of witnesses and the weight given to
their testimony are matters left to the jury’s judgment, and where more than
one inference can be drawn from the evidence,” the trial court must accept the
inference drawn by the jury.
Id. (citation omitted).
¶4 We may overturn the circuit court’s decision to change the
jury’s answer if the record reveals that the court was “clearly wrong.” Id.
at 671-72. “When a circuit court
overturns a verdict supported by ‘any credible evidence,’ then the circuit
court is ‘clearly wrong’ in doing so.” Id.
(citation omitted). We look for credible
evidence to sustain the jury’s verdict; we do not search for evidence to
sustain a verdict that the jury could have reached, but did not. Meurer v. ITT Gen. Controls, 90
Wis. 2d 438,
450-51, 280 N.W.2d 156 (1979).
¶5 In
changing the jury’s answer to the breach of contract question, the circuit
court employed the following analysis.
The court concluded that there were two contracts: one between Best Price and Erie
and one between Erie
and its insured, Willtrim. Erie issued a two-party
check as a result of its contract with its insured, not its contract with Best
Price. Because evidence about the two-party
payment protocol was offered in relation to its contract with Erie’s insured, there was no evidence about the
terms of payment under the Best Price-Erie contract. The court then relied upon cases holding that
because the Best Price-Erie contract was silent as to the place of payment,
payment was to be made at the payee’s principal place of business. Because Erie
did not pay Best Price at its principal place of business, there was no
credible evidence from which the jury could find that Erie did not breach the contract. The court changed the jury’s answer.
¶6 On
review, we look for credible evidence that supports the jury’s verdict. Id.
The question is whether there is
credible evidence that Erie
did not breach its contract when it issued a check payable to Willtrim and Best
Price and delivered the check to Willtrim.
¶7 The Erie
check contained a handwritten endorsement for Best Price. Trevor Trimble, a Willtrim employee,
testified that the check was endorsed by a Best Price employee at the work
site. Deborah Michlig, Best Price’s
general manager, testified that Best Price endorses checks by a stamp, not a
signature. Paul Price, Best Price’s
president, testified that the check was not endorsed by Best Price, and he
never discussed payment terms with Erie’s
adjuster, Wayne Sovinski. Darryl
Michlig, Best Price’s service manager, testified that he did not discuss direct
payment with Sovinski.
¶8 Sovinski testified that Erie paid Best Price via a two-party check, two-party
checks are Erie’s
usual course of business, and two-party checks are the usual course of business
in the insurance industry. In order to
pay a contractor directly, Erie
must be directed to do so by its insured.
Sovinski testified that he did not receive such a direction.
¶9 The jury was charged with resolving the conflict in the
testimony about how Best Price was to be paid and how Best Price’s endorsement
came to be on the check. See Richards, 200 Wis. 2d at 671. Sovinski testified about the two-party payment
convention in the insurance industry; Best Price conceded that it did not make
a direct pay request. Trimble testified
that the check was endorsed by a Best Price employee; Best Price’s employees
testified that the check was not endorsed by Best Price. The jury had to resolve the conflicts in the
testimony to determine that Erie
did not breach its contract with Best Price to pay for plumbing services.
¶10 Because
there was credible evidence to support the jury’s verdict that Erie did not breach its contract with Best
Price, the circuit court was clearly wrong when it changed the jury’s answer. We therefore reverse the circuit court’s
order changing the jury’s verdict and remand with instructions to enter a judgment
on the jury’s verdict.
By
the Court.—Order reversed and cause remanded with directions.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.