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COURT OF APPEALS DECISION DATED AND RELEASED November 14, 1995 |
NOTICE |
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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. 94-3414
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
BOCKHORST, EHRLICH
& KAMINSKI,
Plaintiff-Respondent,
v.
DAVID B. KALAN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JACQUELINE D. SCHELLINGER, Judge.
Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER CURIAM. David B. Kalan appeals from a judgment
entered in favor of Bockhorst, Ehrlich & Kaminski (law firm) awarding
breach of contract damages, interest and attorney fees pursuant to
§ 814.025, Stats.
Kalan claims the trial
court erred in the following respects:
(1) the trial court entered judgment before he completed his defense;
and (2) the evidence is insufficient to support the trial court's findings of
fact and conclusions of law. Because
Kalan waived his right to present further defense evidence and because the
evidence is sufficient to support the findings and conclusions made by the
trial court, we affirm.
I. BACKGROUND
Kalan hired Peter
Bockhorst of the law firm of Bockhorst, Ehrlich & Kaminski to represent him
in his attempt to seek relief from a City of St. Francis municipal court
judgment for $37,375 and accumulated fines of $375,000. Both sums were incurred as the result of
building code violations on two separate pieces of property Kalan owned. Kalan orally agreed to pay the law firm $75
per hour for representation. As a
result of the law firm's efforts, a stipulation and order was entered relieving
Kalan of all liability from the judgment and fines. In turn, Kalan transferred title to certain property to the City
of St. Francis. For its services, the
law firm billed Kalan $4,242.69. When
Kalan did not pay the bill, the law firm sued.
The claim was tried to
the court. Bockhorst testified for the
plaintiff. Kalan testified on his own
behalf and, midway through the trial, decided to proceed without counsel. Kalan offered no other witnesses on his own
behalf. The trial court entered
judgment against Kalan and, additionally, granted the law firm frivolous claim
costs of $2,450. Kalan moved to vacate
the judgment. After a hearing, the trial
court denied the motion and Kalan now appeals.
II. DISCUSSION
Kalan first claims he
was deprived of his opportunity to provide a defense. Kalan bases his claim upon the following trial court transcript
excerpt:
MR. EHRLICH: I have no further
questions Your Honor. I move for
judgment, and I also move for costs as a frivolous defense.
THE
COURT: So ordered. This is a
frivolous waste.
This
cited excerpt, however, portrays only part of the state of the record and
thereby conveys an inaccurate impression of what truly happened during the
course of the trial. The law firm presented
its case by calling Peter Bockhorst as its sole witness. Kalan and his counsel, Royal Cass,
cross-examined Bockhorst.[1] After the law firm's counsel stated it had
no re-direct questions to ask of Bockhorst, the following exchange took place:
MR. EHRLICH: Plaintiff rests.
THE COURT: Any witnesses for
the defense?
MR. KALAN: Yes, I'd like to
call myself.
THE
COURT: All right.
Kalan,
with the assistance of the trial court, then gave testimony which fills fifteen
pages of trial transcript. He was then
cross-examined by the law firm's counsel.
At the conclusion of the cross-examination, although Kalan did not say
he rested, he did not indicate any intent to call additional witnesses. Further, he did not object to the trial
court's granting of the law firm's motion for judgment. Kalan's motion papers to vacate the judgment
do not allege that he intended to call additional witnesses. They do not allege that he intended to
submit further evidence. Thus, we
reject Kalan's claim because he waived his right to object and did not present
any evidence to demonstrate what additional defenses he was prepared to
make. See Wirth v. Ehly,
93 Wis.2d 433, 443-44, 287 N.W.2d 140, 145-46 (1980).
Kalan next asserts that
the evidence is insufficient to sustain the trial court's findings of fact and
conclusions of law. We are not
convinced.
We shall uphold the
findings of fact of a trial court unless they are clearly erroneous. See § 805.17(2), Stats.
The trial court made the following findings of fact and conclusions of
law:
1. That
the plaintiff was a business organization organized as a partnership, and at
all times material hereto the plaintiff, Peter O. Bockhorst, was an
attorney licensed to practice law in the courts of the State of Wisconsin.
2. That
on or about September 10, 1990, the defendant engaged the services of the
plaintiff to represent the defendant relative to an alleged ordinance violation
prosecuted by the City of St. Francis against the defendant as case number
89-4475. That as a result thereof, a
contractual relationship existed between the plaintiff and the defendant.
3. That
said ordinance violation was transferred to the Milwaukee County Circuit Court
as case number 1‑900469, City of St. Francis vs. David Kalan.
4. That
in addition thereto, the plaintiff was engaged by the defendant for
representation in a separate matter entitled City of St. Francis vs. David R.
Kalan, case number 91-CV-007608.
5. That
at all times material hereto, the defendant agreed to compensate the plaintiff
in the amount of $75 per hour, with statements payable within 30 days of
receipt.
6. That
the plaintiff, for its part, has done all things necessary and has complied
with the terms and conditions of the contract and that the defendant received
consideration and the benefit of said contract.
7. That
the defendants [sic] assertion that he did not receive the benefit of his
bargain with the plaintiff is wholly without merit and frivolous; the
defendants [sic] testimony is not credible or reasonable in that the evidence
conclusively shows that the defendant knew that the plaintiff's representation
would lead to a settlement of the issues between the defendant and the City of
St. Francis, and, further, that the defendant at no time rejected the settlement
and insist[ed] on a jury trial.
8. That
there remains an outstanding balance in the amount of $4,242.69 due and owing
from the defendant to the plaintiff for the work as identified to [sic] the
contract.
9. That
although due demand has been made upon the defendant by the plaintiff for
payment, the defendant refused and continues to refuse to pay same.
CONCLUSIONS OF LAW
That
the defendant, David Kalan, is in breach of the contract existing between David
Kalan and the plaintiff herein, and that as a result the plaintiff has been
damaged in the amount of $4,242.69.
That the defendant, David Kalan, and his
attorney, Royal Eugene Cass, continued a defense against the plaintiff that was
wholly frivolous and without merit, as set forth at Ch. 814.025(1), Wis.
Stats., and further, that David Kalan, and his attorney, Royal Eugene Cass,
knew or should have known, that the defense offered in this action was without
any reasonable basis in law, and could not be supported by a good faith
argument for an extension, modification or reversal of existing law, as set
forth at Ch. 814.025(3), Wis. Stats.
From our review of the
record, it was undisputed that Kalan agreed to pay the law firm $75 per hour
for legal fees in an effort to mitigate paying the judgment and fines for the
building code violations. It is also
undisputed that the law firm was successful in reaching a settlement that
released Kalan of all financial responsibilities for the judgment and fines,
thereby receiving exactly that for which he had bargained. Our review of the record reveals that these trial
court findings are not clearly erroneous and that they supply an adequate basis
for the trial court's conclusions of law.
We affirm the judgment, including the trial court's award of frivolous
costs.[2]
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.