COURT OF APPEALS DECISION DATED AND RELEASED July 16, 1996 |
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. 95-2562
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
WILLIAM BECKER and
LISA BECKER,
Plaintiffs-Respondents,
v.
JOHN C. TRITSCHLER and
DEBRA J. TRITSCHLER,
Defendants-Appellants,
ABC INSURANCE COMPANY,
Defendant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
WILLIAM D. GARDNER, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. John C. and Debra J. Tritschler appeal from
a judgment entered after a trial to the court where the trial court ruled that
William and Lisa Becker were entitled to judgment in the amount of
$20,538.86. The Tritschlers claim that
the trial court's findings on witness credibility and legal fee payment were clearly
erroneous and that, therefore, the trial court erred in ordering judgment in
favor of the Beckers. Because the trial
court's findings of fact are not clearly erroneous, and because the findings
reasonably support the trial court's conclusions, we affirm.
I. BACKGROUND
John Tritschler borrowed
$10,000 from the Beckers in January 1988.
Tritschler was serving as Becker's attorney at the time the loan was
made. Tritschler and his wife signed a
promissory note pledging to pay back the loan amount at 15% interest, and to
pay the cost of collection if necessary.
Tritschler made a partial payment of $2,000 in July 1988. Tritschler also claims that he made
subsequent payments totalling an additional $3,000. Becker acknowledges receiving the $2,000 payment, but denies
receiving any additional payments on the promissory note.
In March 1991, the
Beckers filed suit against the Tritschlers to recover the balance of the note
together with interest and attorney's fees.
The case was tried to the court in April 1995. At trial, Tritschler claimed that any remaining amount on the
note was “offset” by legal fees that the Beckers owed him. He also filed a counterclaim for money he
claimed the Beckers owed him for these legal services. Tritschler introduced eleven documents
entitled “duplicate billings” to support his claim for outstanding legal fees
the Beckers had not paid. Tritschler
admitted during his testimony at trial, however, that the billings were not
actual duplicate bills, but in fact had been recently reconstructed from
memory.
Tritschler also claimed
that William Becker agreed to cancel the outstanding promissory loan amount in
exchange for partial payment, a set of wills for Lisa, and forgiveness of the
unpaid legal fees. Becker denied that
he had ever reached any such agreement with Tritschler.
At the conclusion of the trial, the court
ruled: “[B]ased on a preponderance of
the credible evidence, the plaintiffs have established an indebtedness by the
defendant on the note in question,” and ordered judgment be entered in favor of
the Beckers. Tritschler appealed that
decision to this court and we remanded with instructions to the trial court to
make findings of fact and conclusions of law.
Consistent with our mandate, the trial court issued a second decision
with its findings of fact and conclusions of law.
The trial court made the
following findings of fact:
(1) the Tritschlers had defaulted on the promissory note on or
about February 3, 1988; (2) the Tritschlers had made a partial payment of $2,000
prior to defaulting on the note; (3) Becker had made oral demands for
payment of the balance of the promissory note throughout 1988 and 1989;
(4) Tritschler made promises to pay the balance of the note during the
balance of the calendar years 1988 and 1989; (5) Tritschler informed
Becker that he did not have any money at some point during 1990;
(6) Becker filed his suit against Tritschler in March 1991; (7) the
Beckers enjoyed a client-attorney relationship with John Tritschler from late
1985 until 1989; (8) this relationship continued into 1990 though Tritschler
was no longer a licensed practicing attorney; and (9) based on the
credibility of the witnesses and the lack of any probative evidence, the
Beckers did not owe Tritschler for any legal services.
Based on these findings,
the trial court concluded that the Tritschlers' counterclaim should be
dismissed and judgment should be granted in favor of the Beckers. The Tritschlers now appeal.
II. DISCUSSION
In reviewing a trial
court's findings of fact and conclusions of law, we will not set aside the
findings of fact unless they are clearly erroneous, and we will give due regard
to the trial court's opportunity to judge the credibility of witnesses. Section 805.17(2), Stats. After
reviewing the record in this case, we conclude that the findings of fact are
not clearly erroneous and that its conclusions are logically based upon these
findings. Accordingly, we must affirm
the judgment.
The issue presented in
this appeal is whether the trial court's findings were clearly erroneous. Its decision rested with a credibility
determination. A few facts were undisputed: that Tritschler had in fact signed the
promissory note for $10,000, and that he had made a partial payment toward the
debt of $2,000. The remaining facts
were hotly contested. Tritschler
testified at trial that Becker owed him legal fees, that he had made an
additional payment of $3,000, and that Becker had agreed to cancel the note in
exchange for the partial payment, forgiveness of outstanding legal fees, and
additional legal services. In contrast,
when Becker testified, he denied having received any additional payments toward
the loan, he denied having reached the agreement that Tritschler set forth and
he averred that any legal fees owed were satisfied and/or that Tritschler had
never actually performed the legal services.
In rendering its
decision, the trial court believed Becker's version of the facts and found
Tritschler's testimony to be incredible.
The Tritschlers argue on appeal that Tritschler's testimony was credible
and that Becker's testimony was not. We
are not persuaded by the Tritschlers' arguments and cannot say that the trial
court's findings are clearly erroneous.
Our decision is based on several factors. First, where the trial court acts as the finder of fact, it is
the ultimate arbiter of both the credibility of the witnesses, Gehr v.
City of Sheboygan, 81 Wis.2d 117, 122, 260 N.W.2d 30, 33 (1977), and
the weight to be given to each witness's testimony. Milbauer v. Transport Employes' Mut. Benefit Soc'y,
56 Wis.2d 860, 865, 203 N.W.2d 135, 138 (1973). The theory behind this principle is simple: the trial court is in a better position to
make such assessments because it has the opportunity to observe the witnesses
first hand as they testify.
Second, the record
documents support for the trial court's findings. At trial, Tritschler made several claims and presented documents
which damaged his credibility. He
presented what were labeled “duplicate billings” for legal work allegedly
performed for Becker when in fact he had recreated these documents immediately
prior to the trial in an effort to corroborate his testimony. In addition, Tritschler did not present any
documentary evidence, such as correspondence or contemporaneous billing files,
to support his claim that Becker owed him money for unpaid legal services
dating back to 1987. Further,
Tritschler did not have any documentary evidence to support his claim that
Becker had agreed to cancel the promissory note. Finally, Tritschler's credibility was blemished by the disclosure
that his license to practice law had been suspended, based in part on
misrepresentations made to a client, and that Tritschler continued to practice
law despite the suspension.
Based on the foregoing,
we conclude that the trial court's credibility determination has ample support
in the record. Accordingly, its
findings of fact are supported by Becker's testimony and Tritschler's lack of
credible testimony. Therefore, we
decline to set aside the trial court's findings because they are not clearly
erroneous. We also conclude that the
trial court's legal conclusion can be properly and reasonably drawn from its
findings of fact. Accordingly, we
affirm the judgment.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.