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COURT OF APPEALS DECISION DATED AND FILED July 11, 2012 Diane M. Fremgen 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. |
Cir. Ct. No. 2008CV248 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT III |
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Longberg Brandel & Associates, Inc., Plaintiff-Appellant, v. John C. Longberg, Defendant-Respondent. |
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APPEAL from a judgment of the circuit court for Outagamie County: michael w. gage, Judge. Affirmed.
Before Neubauer, P.J., Reilly and Gundrum, JJ.
¶1 PER CURIAM. Longberg, Brandel & Associates, Inc. (Associates) appeals from a circuit court judgment dismissing its breach of contract and tortious interference claims against John Longberg (John). We affirm.
¶2 Before we begin our review, we observe the following. Associates’ appellate arguments overlook a fundamental tenet of appellate review. Where the issues are driven by circuit court findings of fact, we are bound to affirm those findings if they are not clearly erroneous. Wis. Stat. § 805.17(2) (2009-10).[1] When the circuit court has made a credibility determination, “it is the ultimate arbiter of the credibility of the witnesses and the weight to be given to each witness’s testimony.” State v. Peppertree Resort Villas, Inc., 2002 WI App 207, ¶19, 257 Wis. 2d 421, 651 N.W.2d 345. On appeal, Associates must confront the circuit court’s findings of fact, not retry the case.
¶3 We take
the facts from the circuit court’s well-considered opinion. In 2002, John sold his heating, ventilation
and air conditioning company, Longberg Associates, Inc. (Longberg), to
Longberg, Brandel & Associates, Inc.
In addition to selling assets and equipment, John also sold the value of
his business goodwill to Associates.
John became an employee of Associates and entered into a covenant not to
compete with Associates. In 2003,
Associates encountered financial problems.
Chris Brandel, Associates’ president, suggested that John meet with
Associates’ banker to confirm the steps the bank required in order to provide
financing. John met with the Business
Bank’s president, Jim Wilson. The next
day, the loan officer, Richard Grall, put Associates’ request for financing on
hold in order to further evaluate the situation.
¶4 John
and Associates were unable to resolve their differences about how Associates
intended to address its financial problems.
John terminated his employment with Associates and formed John C.
Longberg Consulting, LLC to provide HVAC design and engineering services to
former customers of his prior employers, Associates and Longberg. Associates was not able to obtain additional
financing and eventually ceased operations.
¶5 Associates
sued John for breach of contract because he failed to meet his billable hour
requirement as set forth in the Asset Purchase Agreement. Associates also sued John for tortious
interference with Associates’ relationship with its bank and alleged that John caused
the bank to deny Associates additional financing. After making findings of fact, the court
dismissed Associates’ claims.
¶6 Associates’
breach of contract claim was based on the following provision of the Asset
Purchase Agreement: “John’s requirement
to bill out 1500 billable hours per calendar year shall be in effect for a five
(5) year calendar term, commencing with the year 2003.” Associates calculated that John only billed
out 1349 billable hours in 2003. While
Associates did not dispute that John generated 1500 billable hours, Associates
argued that John’s real responsibility under the Asset Purchase Agreement was
to generate 1500 “billed out” billable hours.
Using Associates’ methodology and having discovered an additional 166.5
hours for which Associates had generated invoices, John calculated that he
billed out 1515.5 hours for 2003. John
argued that he satisfied his obligation under the Agreement, and he was not
involved in how his hours were charged or billed out to clients.
¶7 The
circuit court found that Associates did not establish its breach of contract claim
relating to John’s billable hours. First
and foremost, the court found John’s accounting of his 1515.5 billable hours to
be “more particular, better documented, and more reliable” than Associates’
accounting of his hours. This was a
finding the court was entitled to make based upon its assessment of the
evidence before it. The court noted that
the Agreement did not distinguish the type of work that would satisfy John’s 1500
billable hour requirement, i.e., work billable to a client versus administrative
or other nonclient work for Associates. The
court found no evidence that John refused to perform available billable work or
that Associates directed John to devote himself solely to billable hours rather
than other endeavors for Associates.
Associates was responsible for billing out John’s hours, and there were
a “significant if indeterminable number of billable hours in excess of 1349
[that] were actually worked and not billed” by Associates.
¶8 On
appeal, Associates argues that as a matter of contract construction, John
breached the Asset Purchase Agreement because he did not bill out 1500 hours in
2003. Associates cannot succeed
on appeal by arguing a contract provision while ignoring the circuit court’s
findings of fact in relation to that provision.
Associates does not confront the
circuit court’s finding that John’s accounting, which the court deemed more
reliable than Associates’ accounting, showed that John billed out 1515.5 hours
using the same methodology Associates used to calculate John’s obligation under
the Asset Purchase Agreement. We
will neither sift the record to locate
facts to support Associates’ appellate arguments, see Keplin v. Hardware Mut. Cas.
Co., 24 Wis. 2d 319, 324,
129 N.W.2d 321 (1964), nor craft an argument for Associates, see Vesely
v. Security First Nat’l Bank, 128 Wis. 2d 246, 255 n.5, 381 N.W.2d 593
(Ct. App. 1985) (we do not address inadequately briefed issues).
¶9 We
turn to Associates’ tortious interference with contract claim. Associates claimed that John’s conversation
with Wilson caused the bank to deny Associates additional financing. The elements of tortious interference
are: (1) Associates had a current
or prospective contractual relationship with a third party, the bank; (2) John
interfered with that contractual relationship; (3) John’s interference was
intentional; (4) a causal connection existed between John’s interference and
Associates’ damages; and (5) John was not justified or privileged to interfere
in Associates’ relationship with the bank.
See Wolnak v. Cardiovascular & Thoracic Surgeons of Cent. Wis., 2005 WI App 217, ¶14, 287 Wis. 2d 560, 706
N.W.2d 667. The circuit court found that
Associates did not satisfy the elements of the claim.
¶10 Based
on the evidence before the circuit court, the court found that there was
insufficient evidence that the bank had committed to additional financing at
the time John met with Wilson.
Therefore, Associates did not establish that there was a reasonably
certain business opportunity or contract with which John could have
interfered. There was no evidence that
John intended to interfere with or torpedo Associates’ financing opportunity
with the bank. There was no evidence
that John knew at the time he met with Wilson that a financing request was
pending at the bank. While Wilson passed
along to the loan officer John’s concerns about Associates, the court found no
persuasive evidence that Wilson shared anything critical of Associates that
would have affected the bank’s evaluation of Associates’ credit worthiness.
¶11 The
court found no causal connection between John’s meeting with Wilson and the
bank’s refusal to extend additional credit.
The loan officer was undertaking appropriate meetings with
representatives of Associates to evaluate the request for additional financing and
objectively assess whether additional financing should be extended. The court found that in denying additional financing,
the bank acted upon sound banking principles rather than anything John said to
Wilson. In denying additional financing,
the bank had good, independent reasons rooted in Associates’ financial
condition and prospects: diminishing
revenues, additional interim financing had already been required, and staff had
been laid off. The bank had previously placed
Associates’ risk rating in the highest category so that any extension of credit
would have been preceded by a careful, heightened review. The court found that the bank did not extend
further credit to Associates because the business was failing, not because of
anything John said to the bank’s president.
¶12 On
appeal, Associates argues that it satisfied the elements of tortious
interference. While Associates argues as
to each element, only one element needs to be unsatisfied for the claim to
fail. Associates asserts a causal link
between John’s statements to Wilson and the bank’s refusal to extend
credit. The circuit court found to the
contrary based on its evaluation of the evidence and the witnesses’
credibility. Associates does not show
that this finding is clearly erroneous.
¶13 Because
Associates did not prove its claims, the circuit court did not err in
dismissing them.
By
the Court.—Judgment affirmed.
This opinion will not be
published. See Wis. Stat. Rule
809.23(1)(b)5.