COURT OF APPEALS DECISION DATED AND RELEASED JUNE
13, 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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-3120
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT III
SUPERIOR
WATER LIGHT
&
POWER CO.,
Plaintiff-Respondent,
v.
KEVIN
PETERSON,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Douglas County: MICHAEL T. LUCCI, Judge. Affirmed.
CANE,
P.J. Kevin Peterson appeals a judgment
awarding $1,637 to Superior Water Light & Power Company (Superior) for
delinquent utility bills and dismissing Peterson's counterclaim. Peterson raises four issues. He argues that: (1) The trial court erred by finding that a contract existed
between himself and Superior for fire protection service;
(2) alternatively, that the contract is unconscionable; (3) the trial
court failed to properly aid him in constructing a proper record and that
Superior improperly withheld certain documents from him; and (4) the trial
court erred by finding that he did not inform Superior that he had capped the
fire protection line until the spring of 1992.
None of these issues merits reversal.
The judgment of the trial court is affirmed.
Peterson
owned the old post office building at 1401 Tower Avenue in Superior. He purchased the building in August of
1984. Shortly thereafter, Peterson
contracted Superior to supply regular utilities to the building. In August 1984, Superior began charging
Peterson for an extra "fire protection service." This service involved supplying water to a
two-inch pipe that ran to various locations within Peterson's building. This service was billed separately. In the event of a fire, hoses could be
connected to the sites and a ready supply of water would be immediately
available.
When
Peterson first informed Superior that he did not want the service, Superior
suggested that before discontinuing the service, he should speak to his
insurance agent and the fire department to make sure there were no negative
ramifications. Superior also told
Peterson that he needed only to cap the line and notify it of the capping for
the service to be terminated. However,
Peterson did not take any immediate action and did not cap the line as required
to terminate the service. From time to
time, Peterson expressed his desire to terminate the service. Each time Superior informed him that he only
had to cap the line and inform it of the capping and that the service would
then be terminated.
Peterson
testified that in early 1989 the pipes in his building froze and that he capped
the line. He claims that he informed
Superior of the capping at that time.
On the other hand, Superior contends that it was not notified until May
of 1992. In any event, Peterson
continued to receive and pay the bills for the fire protection service from
1989 through his last bill in April of 1992.
Peterson
sold the building in December of 1993.
At the time of the sale, he was $1,637 behind on his regular utility
payments, and Superior filed suit to recover these delinquent payments. In response, Peterson filed a counterclaim
asking for reimbursement of all the payments he made for the unwanted fire
protection service. Peterson admits
that he owes Superior $1,637 in regular utility payments. The issues raised here regard Peterson's
counterclaim concerning the payments he previously made for the fire protection
service.
Peterson
first argues that the trial court erred by finding that a contract existed
between himself and Superior for the fire protection service. Essentially, Peterson argues that there is insufficient evidence to support
this finding and that the record supports the opposite conclusion.
In
order for a contract to exist there must be an offer, an acceptance and
consideration. Goossen v. Estate
of Standaert, 189 Wis.2d 237, 247, 525 N.W.2d 314, 318 (Ct. App.
1994). The offer and acceptance need
not occur expressly and may be implied.
Theuerkauf v. Sutton, 102 Wis.2d 176, 184, 306 N.W.2d 651,
657 (1981). "The essence of an
implied contract is that it arises from an agreement circumstantially
proved.” Id. The existence of an agreement is determined
by the use of an objective standard.
"[A]n implied [in fact] contract must be one which arises under
circumstances which, according to ordinary course of dealing and common
understanding of men, show a mutual intention to contract." Id. at 185, 306 N.W.2d at 658
(emphasis in original).
Whether
an implied contract exists is a question for the finder of fact. Patti v. Western Machine Co., 72
Wis.2d 348, 353, 241 N.W.2d 158, 161 (1976).
[W]hen the trial judge acts as the finder of fact, and
when there is conflicting testimony, the trial judge is the ultimate arbiter of
the credibility of the witnesses. When
more than one reasonable inference can be drawn from the credible evidence, the
reviewing court must accept the inference drawn by the trier of fact.
Noll v. Dimiceli's, Inc., 115 Wis.2d 641, 644, 340 N.W.2d 575, 577 (Ct. App.
1983) (citations omitted). Further,
findings of fact will not be set aside unless they are clearly erroneous. Section 805.17(2), Stats.
It
is undisputed that Superior supplied a fire protection service to Peterson for
eight years. The record establishes
that Peterson paid for this service on a monthly basis and that this service
was billed separately. When he objected
to the service, he was informed how to terminate the service, but did not do so
until many years later. This evidence
is more than sufficient to support the trial court's finding that Peterson
contracted with Superior for the fire protection service.
Next,
Peterson argues that the contract is unconscionable. He argues that Superior held a vastly stronger bargaining
position and left him with no other options.
He contends that, under these circumstances, the contract is void. Additionally, Peterson asserts that the
trial court erred by failing to help him make an adequate record of the lower
court proceedings and that Superior withheld certain records from him. He reasons that the trial court should have
helped him to better present his case.
He believes this has prevented him from adequately pursuing his case.
A
reviewing court will not address an issue when "the appellant has failed
to give the trial court fair notice that it is raising a particular issue and
seeks a particular ruling." State
v. Gilles, 173 Wis.2d 101, 115, 496 N.W.2d 133, 139 (Ct. App.
1992). The reasoning behind this rule
has been clearly explained by the supreme court.
[I]t is the role of an appellate court to correct errors
made by the trial court, not to rule on matters never considered by the trial
court. [Requiring] objections at trial
allows the trial judge an opportunity to correct or to avoid errors, thereby
resulting in efficient judicial administration and eliminating the need for an
appeal.
Vollmer v. Luety, 156 Wis.2d 1, 10-11, 456 N.W.2d 797, 801-02 (1990).
A
review of the record reveals that Peterson never argued to the trial court that
the contract was unconscionable. Nor
does he ever suggest that the record that was being created was somehow
inadequate. These issues are raised
here for the first time. Because they
were not properly preserved at trial, it would be improper to rule on them
now. See Wirth v. Ehly,
93 Wis.2d 433, 443-44, 287 N.W.2d 140, 145-46 (1980).
Finally,
Peterson argues that the trial court erred by finding that he did not inform
Superior that he had capped the fire protection line until the spring of
1992. Peterson argues that the court
found he capped the line in 1989 and therefore the payments made for the fire
protection line after this date should be credited toward the judgment against
him.
Again,
the date upon which the service was terminated is an issue for the
factfinder. In these matters, this
court must defer to the findings of the trial court unless they are clearly
erroneous. Section 805.17(2), Stats.
Here the record contains sufficient evidence to support the trial
court's findings. The trial court found
that although Peterson capped the line in 1989, he failed to inform Superior of
the capping until May 1992. Peterson
concedes in his testimony that he did not immediately inform Superior when he
capped the line. Further, Superior's
commercial analyst testified that he was unaware the line had been capped prior
to May 1992. Based on the evidence in
the record, we cannot say that the trial court's conclusions were clearly
erroneous.
By
the Court.—Judgment affirmed.
This
opinion will not be published. Rule 809.23(1)(b)4, Stats.