COURT OF APPEALS DECISION DATED AND RELEASED December
7, 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. 95-0451
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
PROFESSIONAL
PEST CONTROL,
Plaintiff-Respondent,
v.
TONY
SHOMBERG,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: SARAH B. O'BRIEN, Judge. Affirmed.
SUNDBY,
J. This is an appeal[1]
from a small claims judgment. The
defendant-appellant, Tony Shomberg, owned a number of residential rental
properties to which plaintiff-respondent, Professional Pest Control (PPC),
provided monthly pest control services.
PPC terminated its services in January 1992 because Shomberg failed to
make timely payments. However,
beginning in September 1992, PPC resumed providing services to Shomberg. PPC sent monthly statements itemizing the
services performed until the services were terminated for nonpayment in August
1993. At that time, there was a balance
due of $3,308.39.
Shomberg
testified that he asked Richard J. Freye, PPC's president, to do some special
work for him and that Freye agreed to do so if Shomberg would make payments on
the overdue obligations. Shomberg
testified that he did not open or look at the monthly statements he received
from PPC although he did make some payments corresponding to the amounts stated
in the monthly statements.
Freye
testified that Shomberg called him in September 1992 and asked him to clear up
some pest problems in his apartment buildings.
Freye testified that he told Shomberg he would resume servicing his
apartment buildings and perform special services on two conditions: First, Shomberg would be placed on a monthly
service plan, and second, Shomberg would make monthly payments on the
outstanding obligation. He testified
that Shomberg agreed to make a monthly payment of $250. Plaintiff's office manager testified that
this was her understanding of the agreement as related to her by Freye.
Shomberg
testified that he told Freye he would make some payments on the past-due
accounts if PPC would spray specific apartments as "one-shot
jobs." Shomberg claimed that PPC
resumed monthly services without his knowledge and billed him for those
services. He testified that he made it
clear to Freye that he did not want to continue the contract for monthly
services. He argues that the trial
court's decision is unfair because he should not have to pay for services that
he did not request or agree to.
The
trial court found Freye to be the more credible witness. When the trial court acts as the fact
finder, it is the ultimate arbiter of the credibility of the witnesses. Plesko v. Figgie, Int'l, 190
Wis.2d 765, 776, 528 N.W.2d 446, 450 (Ct. App. 1994). The trial court, not this court, decides what inferences may be
drawn from the testimony of the witnesses.
Id. at 777, 528 N.W.2d at 450.
The
trial court also stated that, "[a] couple of things other than the
testimony of the parties leads me to think that Mr. Freye's account is more
credible." The court found from
Shomberg's testimony that on occasion he did look at the monthly bills. The court found incredible Shomberg's testimony
that over an extended period of time he never opened a bill from PPC. The court said: "That ... defies human nature, I think." Shomberg offered nothing but his testimony
to corroborate his version of the agreement.
If, as he testified, he didn't open the bills he was receiving monthly
from PPC, he is estopped from arguing that he has no liability for those bills.
By
the Court.--Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.