COURT OF APPEALS DECISION DATED AND FILED May 25, 2011 A. John Voelker Acting 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
Before Brown, C.J., Anderson and Reilly, JJ.
¶1 PER CURIAM. Walter & Son Waste Haulers,
LLC, appeals from a judgment for damages and an award of attorney’s fees and
costs. Walter argues that the circuit
court erred when it did not amend the jury’s verdict, that the evidence at
trial was insufficient to support the jury’s verdict, that the circuit court
erred when it gave one special verdict question, and that the trial court erred
when it awarded attorney’s fees and costs.
We conclude that the circuit court did not err, and we affirm the
judgment and the award of costs and fees.
Further, we conclude that the respondent, Phenco, Inc., is entitled to
attorney’s fees and costs for the portion of this appeal that concerned the
¶2 This is a breach of contract dispute. The respondent, Phenco, is a construction
contractor. Phenco contracted with
Walter to dredge three separate projects: two for the Town of
¶3 The evidence at trial established that Walter began dredging
the
¶4 Walter’s work on the Middleton project was stopped when the project was shut down by the Department of Natural Resources. Walter did not cause the problem that led to the shutdown. Rather, the problem that led to the delay was attributed to Middleton’s City Engineer. Walter claimed that Phenco had agreed to pay them for the “down time,” but Phenco did not pay Walter for their time.
¶5 Walter sued Phenco alleging, among other things, that Phenco
owed them money for the work on the
¶6 Walter brought a post-judgment motion challenging the special
verdict answers on the
¶7 Walter argues to this court that the circuit erred when it
refused to change the answers to three special verdict questions concerning the
¶8 Walter’s argument about these three special verdict questions
appears to be that the jury’s answers suggest that the jury meant to find that
Phenco had breached the contract, and therefore, the jury damage award amounts
must be changed. Walter states that the damages
the jury awarded to Phenco included a set-off amount for money Phenco owed
Walter for work Walter performed on the
¶9 We will sustain the circuit court’s refusal to change a
special verdict if there is any credible evidence that under any reasonable
view supports the jury’s verdict. Hanson
v.
American Family Mut. Ins. Co., 2006 WI 97, ¶18, 294
¶10 Walter next argues that the great weight and clear
preponderance of the evidence goes against the jury’s determination that Walter
breached the
¶11 The
credibility of witnesses and the weight to be accorded to their testimony are
among the matters appropriately left to the jury's judgment, and where more than one inference is possible, the inference
drawn by the jury must be accepted. Roach
v. Keane, 73
¶12 Walter next argues that the circuit court erred when it included a special verdict question that asked whether the principle purpose of the Middleton project agreement between Walter and Phenco was “frustrated by the supervening negligent acts or omissions of the [City’s] project engineer.” The jury answered “yes” to this question.
¶13 Walter argues that this special verdict question, when
considered with a related jury instruction, suggested that if the City engineer
was negligent, then Phenco was excused from its obligation to pay Walter for
their work on the
¶14 Walter next argues that the circuit court erred when it awarded
costs and attorney’s fees to Phenco. The
agreement between Walter and Phenco for the
¶15 Walter first argues that the court misinterpreted the word “enforce.” Walter draws a distinction between enforce and defend, and argues that Phenco is not entitled to fees and costs for the time it spent “defending” against Walter’s claims. We conclude that this is a distinction without a difference. Phenco both successfully defended against Walter’s claim and pursued its counterclaim, and litigated the matter to enforce its rights under the contract. We are not convinced that the circuit court misinterpreted the word enforce.
¶16 Walter’s second argument is based on the allocation of fees. Phenco was entitled to recover fees and costs
under the
¶17 The record shows that at the hearing on fees, Phenco’s attorney
explained at length the method and reasoning he used for allocating time spent
on the
¶18 Walter’s last argument relating to fees is that the award is
not fair because it is out of proportion to the damage award Phenco received. Walter argues that under Shadely v.
Lloyds of London, 2009 WI App 165, ¶22, 322 Wis. 2d 189, 776
N.W.2d 838, Phenco should have received
a lesser or no fee award. In that case,
we concluded that the circuit court erred under the language of the fee shifting
provision of a contract when it awarded the successful party the entirety of
her fees.
¶19 We reject Walter’s argument on this issue for two reasons. First, the fee shifting provision in the contract at issue here does not contain a term that is ambiguous in the context of this case. Second, the award of fees was not out of proportion to Phenco’s success at trial. Phenco successfully defended against a damage claim and recovered its damages on its counterclaim. It is entitled to the fees it was awarded.
¶20 Walter also argues that the trial court erroneously exercised its discretion when it imposed costs. Walter asserts that the court erred by not considering Walter’s objections to the costs. We are not convinced that the circuit court erred when it imposed statutory costs.
¶21 We also conclude that Phenco is entitled under the fee shifting portion of the Mound Road agreement to recover the attorney’s fees and costs for defending this appeal. Consequently, we affirm the judgment of the circuit court and remand the matter back to that court for a determination of the appropriate amount of attorney’s fees and costs for this appeal.
By the Court.—Judgment affirmed and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] The net result of change would be the same amount of damages to Phenco.
[2] Walter
argues for the first time in its reply brief that the special verdict question
contains an inaccurate statement of law.
Because he did not make the argument in his brief-in-chief, we will not
consider it. See Swartwout v. Belsie,
100