COURT OF APPEALS DECISION DATED AND RELEASED November 15, 1995 |
NOTICE |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2077
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
QUALITY ENERGY
PRODUCTS, INC.,
a Wisconsin
corporation,
Plaintiff-Appellant-
Cross Respondent,
v.
IRA SAFER, d/b/a
COUNTERTOP
WHOLESALERS,
Defendant-Respondent-
Cross Appellant.
APPEAL and CROSS-APPEAL
from a judgment of the circuit court for Washington County: JAMES B. SCHWALBACH, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Snyder, JJ.
PER CURIAM. Quality
Energy Products, Inc. appeals and Ira Safer, d/b/a Countertop Wholesalers,
cross-appeals from a judgment resolving their claims and counterclaims. Because the trial court correctly concluded
that the proof at trial was insufficient, we affirm.
Safer did remodeling
work as a subcontractor for Quality.
After the Quality-Safer relationship broke down, Quality sued Safer to
recover what it characterized as loans and advances from 1989 to 1992.[1] Safer counterclaimed that commissions were
due him from Quality and that he did not receive his personal property from
Quality's office when the relationship terminated.
Jack Marston, Quality's
president, testified that he and Safer entered into an agreement whereby
Quality would advance funds to pay subcontractors and place advertising for
remodeling projects and Safer would handle the other aspects of each remodeling
job. Costs would be deducted from the
job price and the profits would be paid 45% to Quality and 55% to Safer because
he had out-of-pocket expenses. Marston
testified that he did not have an agreement to reimburse Safer for mileage or
telephone calls.
Marston began doing
business with Safer as "Capitol Contractors" in late 1989 when Safer
received the first advance.[2] Marston offered his ledger as proof that
Safer received advances and loans of $4061.18 in 1989 to cover costs Safer was
incurring on jobs in progress. However,
the ledger did not list any jobs performed by Quality and Safer in 1989, and
Marston could not identify the jobs.[3] Safer never repaid the funds he received in
1989.
Safer testified that he
and Marston first went into business together in 1989 as Capitol
Contractors. Safer testified that
Marston intended to fund the business and they would split the profits
50/50. Safer testified that the 1989
advances and advertising charges were related to the operation of Capitol
Contractors, but he was uncertain to which jobs they applied. Capitol Contractors was in business from
approximately mid-1989 to the end of 1990.
At that point, Capitol Contractors was dissolved, and Safer was employed
as a subcontractor by Quality Energy Products and profits were split
55/45. Safer later testified that the
parties had agreed to a 60/40 split.
Safer testified that at
the time he was paid commissions, he did not challenge the figures because he
did not have any records. Upon seeing
the documents Quality intended to submit at trial, Safer recalculated the
transactions from 1990 to 1992 and concluded that Quality owed him $4701.13 in
commissions, plus his expenses.
Safer stated that he
retrieved his personal property from the hallway outside of Quality's office on
the same weekend that Marston set the items out. However, Safer claimed that items valued at approximately $350
were missing.
Marston then returned to
the witness stand to testify that he never agreed to pay Safer's expenses and
that each time a job's profit was calculated, Safer received a copy of the
calculations. Additionally, Safer made
copies of every job file and kept them in his briefcase. Safer never challenged the accuracy of the
breakdowns. Safer never made any claim
for additional commissions before Quality sued him. Marston claimed that there was nothing of value in the boxes he
put into the hall.
In argument, Safer
contended that he was underpaid commissions by $4701.13. Marston contended that Safer received loans
and advances in 1989 and owed Quality $4061.18.
The trial court found
that Quality did not prove that Safer owed loans and advances from 1989 in the
amount of $4061.18 because there were no jobs listed for 1989 on Quality's
ledger and there was inadequate proof that Quality made the advances. The trial court further found that: (1) Safer was double-billed for advertising
costs on a project and should be credited $385.46; (2) Safer was to receive 55%
of net profits per remodeling job, but the trial court declined to recalculate
Safer's commissions; and (3) Safer did not establish with the requisite degree
of certainty any entitlement to reimbursement for mileage and other expenses or
that he lost personal property when it was removed from Quality's offices. The trial court found that Quality owed
Safer $790.17. Quality appeals, and
Safer cross-appeals.
We conclude that the
trial court's findings of fact are not clearly erroneous. See § 805.17(2), Stats.
Both Marston and Safer testified that they began doing business in late
1989 as Capitol Contractors. The
plaintiff in this case was Quality Energy, and no proof was offered that
Capitol's claim against Safer for funds advanced in 1989 had been assigned to
Quality or that Quality and Safer did any jobs in 1989. Therefore, the trial court's finding that
there was insufficient proof that Safer was indebted to Quality is not clearly
erroneous. Furthermore, Safer did not
offer sufficient proof in support of his counterclaim for commissions. There were conflicts in the testimony. It was the trial court's responsibility to
assess the credibility of the witnesses, Village of Big Bend v. Anderson,
103 Wis.2d 403, 410, 308 N.W.2d 887, 891 (Ct. App. 1981), and resolve those
conflicts.
Safer complains that the
trial court erred in refusing to recalculate the commissions due him. However, there was insufficient testimony as
to the manner in which profits were to be split, particularly because Safer
gave conflicting testimony regarding the allocation of profits.
Safer moves for Rule 809.25(3), Stats., costs on the ground that Quality's appeal is
frivolous. Each party appealed from the
final judgment and that judgment has been affirmed as to each. While neither party prevailed, the court
does not find either the appeal or the cross-appeal to be frivolous under Rule 809.25(3)(c).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.