JX Enterprises, Inc. v. DAD Acres, LLC

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 24, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP1904 Cir. Ct. No. 2018CV856

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

JX ENTERPRISES, INC.,

PLAINTIFF-RESPONDENT,

V.

DAD ACRES, LLC AND DANIEL R. ANGOTTI, JR.,

DEFENDANTS-APPELLANTS.

APPEAL from a judgment of the circuit court for Brown County:
MARC A. HAMMER, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP1904

¶1 PER CURIAM. DAD Acres, LLC and Daniel R. Angotti, Jr.,
(“Angotti”)1 appeal a summary judgment granted in favor of JX Enterprises, Inc.
(“JX”). Angotti argues that the circuit court erred in granting JX summary
judgment for the unpaid cost of repairs it made to Angotti’s truck because there
were material questions of fact as to whether those costs were covered under
warranty. JX argues this court lacks jurisdiction over this appeal because the
decision and order from which Angotti appeals is not a final order or judgment for
purposes of appeal. We determine that we have jurisdiction over the appeal and
that the circuit court correctly granted summary judgment. We therefore affirm.

BACKGROUND

¶2 Daniel is the owner and sole member of DAD Acres. Through DAD
Acres, Daniel owns and operates a 2004 Peterbilt Model 3842 semi-tractor (“the
truck”). Prior to 2017, Angotti had a refurbished Cummins ISX engine installed in
the truck.

¶3 In November 2016, Angotti’s truck engine began leaking coolant.
Angotti took the truck to JX, a Peterbilt semi-tractor dealership and service center
located in De Pere. JX is also an authorized Cummins Corporation service
location.

1
We refer to the appellants together as Angotti. When it is necessary to reference them
individually, we refer to Angotti as Daniel.
2
There is some inconsistency in the record as to whether the 2004 Peterbilt is a
model 384 or a model 379. The appellants’ brief states that it is a model 384, whereas the
respondent’s brief says it is a model 379. The record reflects both a model 384 and 379. Despite
this discrepancy, we determine that both parties are referring to the same Peterbilt as reflected by
the consistent vehicle identification number.

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No. 2019AP1904

¶4 JX’s Cummins-certified technicians discovered that the coolant was
leaking due to an engine block crack. JX told Angotti that it had the option of
installing a remanufactured Cummins ReCon engine or replacing the existing
engine block. Angotti first asked JX to patch the cracked engine block with
epoxy; however, the epoxy did not hold. Angotti then asked JX to replace the
engine block.

¶5 On or about December 8, 2016, the engine block replacement was
completed. Prior to picking up the truck, Angotti signed an invoice which
included a Cummins warranty covering the repair or replacement of the parts
newly installed by JX for one year or 100,000 miles, whichever occurs first. As
relevant here, the engine crankshaft was not one of the items replaced or
warrantied.

¶6 In November 2017, Angotti returned the truck to JX, complaining of
a clunking noise and oil leak from the front of the engine. JX technicians
inspected the truck and determined it had a broken crankshaft. JX explained to
Angotti that because the crankshaft was not one of the parts it replaced in 2016, it
was not included in the warranty that was issued at that time. Angotti then
requested that JX install a remanufactured Cummins ReCon engine.

¶7 On December 6, 2017, Daniel completed a JX Enterprises Credit
Application and Personal Guarantee on behalf of Angotti. The application was
accepted, and JX installed a remanufactured Cummins ReCon engine in the truck.
The engine came with a separate warranty, which specifically covers failures of
the engine cylinder block, crankshaft, camshafts and connecting rods for three
years or 300,000 miles or 10,000 hours of operation, whichever occurs first.

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No. 2019AP1904

¶8 After the repair, Angotti paid $8,000 and JX released the truck.
However, Angotti then refused to pay the remaining balance due of $28,020.37,
claiming that all work performed by JX in December 2017 should have been
covered by the 2016 warranty.

¶9 JX filed this lawsuit against Angotti seeking the unpaid amount of
$28,020.37 plus interest accrued, costs, and attorney fees. Angotti counterclaimed
for the $8,000 it paid toward the replacement and installation of the
remanufactured Cummins ReCon engine.

¶10 JX moved for summary judgment on the amount claimed due, and
on August 13, 2019, the circuit court entered a written decision granting summary
judgment in favor of JX and against Angotti. The court thereafter signed an order
for judgment on September 30, 2019, which included in the judgment amount an
award to JX of its attorney fees and costs. The September 30 order contained
language stating that it was a final order for purposes of appeal. Angotti then filed
a notice of appeal on September 30, appealing from the court’s August 13, 2019
decision.

DISCUSSION

I. Jurisdiction

¶11 We first address JX’s claim that we lack jurisdiction over this appeal
because Angotti appeals from a nonfinal order. Whether we have jurisdiction to
consider an appeal is a question of law that we review de novo. See Nickel v.
United States, 2012 WI 22, ¶20, 339 Wis. 2d 48, 810 N.W.2d 450.

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No. 2019AP1904

¶12 WISCONSIN STAT. § 808.03(1) (2017-18)3 sets forth the standard for
determining whether a judgment or order is final for purposes of appeal: “A final
judgment or final order is a judgment, order or disposition that disposes of the
entire matter in litigation as to one or more of the parties ….” Additionally, our
supreme court has required that each final judgment or order entered after
September 1, 2007, include a statement that it is a final judgment or order for
purposes of appeal. Wambolt v. West Bend Mut. Ins. Co., 2007 WI 35, ¶¶39, 49,
299 Wis. 2d 723, 728 N.W.2d 670. Nevertheless, “[a]bsent such a statement,
appellate courts should liberally construe ambiguities to preserve the right of
appeal.” Id., ¶4; see also Kenosha Pro. Firefighters Local 414 v. City of
Kenosha, 2009 WI 52, ¶31 317 Wis. 2d 628, 766 N.W.2d 522 (“When a document
does not explicitly state that it is dismissing or adjudging the entire matter as to
one or more of the parties, the appropriate course of action for an appellate court
‘is to liberally construe documents in favor of timely appeals.’”).

¶13 JX argues that Angotti cannot appeal from the August 13, 2019
decision and order because it did not contain a statement that it was a final
judgment or order for purposes of appeal as required by Wambolt. JX argues that
the August 13 decision could not have been a final order because the circuit court
had not yet addressed the issue of costs and the amount of an attorney fees award.
These issues were not determined until September 30, 2019 when the court
entered a judgment containing the statement required by Wambolt.

3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2019AP1904

¶14 In response, Angotti argues that the lack of a finality statement is not
dispositive. In Wambolt, the court stated that “neither the label of a document nor
the subsequent actions taken by the circuit court is dispositive of the document’s
finality under [WIS. STAT.] § 808.03(1).” Wambolt, 299 Wis. 2d 723, ¶30. In
addition, Angotti argues that it is a “longstanding holding that the pendency of a
claim for costs and fees does not affect the appealability of a judgment that
otherwise disposes of the matters in litigation.” McConley v. T.C. Visions, Inc.,
2016 WI App 74, ¶9, 371 Wis. 2d 658, 885 N.W.2d 816 (quoting Admiral Ins.
Co. v. Paper Converting Mach. Co., 2012 WI 30, ¶33 & n.14, 339 Wis. 2d 291,
811 N.W.2d 351).

¶15 We conclude that we have jurisdiction to consider the issues on
appeal regardless of whether Angotti technically noticed its appeal from the
nonfinal August 13, 2019 summary judgment decision. But, we do so for a reason
ignored by the parties. Namely, Angotti’s notice of appeal was filed on
September 30, 2019, the same date that the circuit court ordered that a judgment
be entered addressing all remaining issues not resolved by the August 13 decision,
and containing the finality language required by Wambolt. Although the notice of
appeal referenced a desire to appeal from the August 13 order, the case was
completed and final as to all parties on the date that Angotti’s notice of appeal was
filed and, thus, the case was complete for purposes of any appeal. On appeal of a
final order, WIS. STAT. RULE 809.10(4) allows an appellant to obtain review of all
nonfinal orders adverse to the appellant and favorable to the respondent made in
the action or proceeding that were not previously appealed and ruled on.
Accordingly, the notice of appeal’s reference to the August 13 order does not
prevent us from exercising jurisdiction, as this is an appeal commenced after entry
of a final judgment or order.

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No. 2019AP1904

II. Summary Judgment

¶16 Angotti argues that material questions of fact precluded the circuit
court’s grant of summary judgment. The grant or denial of a motion for summary
judgment is a matter of law that this court reviews de novo. Johnson v.
Mt. Morris Mut. Ins. Co., 2012 WI App 3, ¶8, 338 Wis. 2d 327, 809 N.W.2d 53
(2011). A party is entitled to summary judgment “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” WIS. STAT. § 802.08(2). We
independently review the interpretation of a warranty, and we do so in the same
manner that we would interpret any other contract. Dieter v. Chrysler Corp., 2000
WI 45, ¶15, 234 Wis. 2d 670, 610 N.W.2d 832.

¶17 Angotti asserts that the circuit court incorrectly stated that the sole
issue before it was whether the crankshaft was covered under any warranty. It
instead argues that there are material questions of fact as to whether the crankshaft
did indeed break and, if so, whether some other part of the engine covered by
warranty caused it to break. In support of this argument, it cites to the affidavit of
Jason Angotti (“Jason”). Jason is a diesel mechanic who works on the fleet of
trucks owned and operated by DAD Acres, and he is Daniel’s son. Jason opined
that it was “highly unlikely the engine would have run if the crankshaft was broke
where [JX] indicates.” He further averred that it was his “understanding the
engine did run and could power the vehicle.” Additionally, Daniel’s affidavit
states that when he brought the truck to JX in 2017, after the rebuilt engine failed,
the engine ran and had enough power to move the vehicle.

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No. 2019AP1904

¶18 In response, JX fails to address the issue raised by Angotti, arguing
instead that Angotti is incorrectly “attempting to retroactively apply the 2017
Cummins warranty to the old crankshaft”. Despite the parties largely talking past
each other, we conclude on our de novo review that Jason’s affidavit is insufficient
to create a genuine issue of material fact so as to defeat JX’s summary judgment.

¶19 The affidavit of JX’s service manager, Bob Kranzusch, filed in
support of JX’s summary judgment motion, was based upon his personal
knowledge and inspection of the truck. He averred that the crankshaft was broken
when the truck arrived at JX in 2017. In his responsive affidavit, Jason questions
whether the engine crankshaft was broken, but he provides no evidence as to any
other cause for the truck’s engine problems. Further, Jason’s statement that if the
crankshaft did indeed break, the break may have been caused by another engine
part that may have been covered by the 2016 warranty appears to be based upon
nothing more than mere speculation. Jason did not examine the engine or
crankshaft after the truck’s breakdown. Jason’s affidavit, without more, is
insufficient to create a genuine issue of material fact.

¶20 Angotti next argues that it was unable to inspect the engine to
specifically diagnose the cause of the 2017 breakdown because JX could not
locate the old engine. Angotti is, in essence, making a “spoliation” argument
without using that terminology. The intentional destruction, alteration, or
concealment of material evidence is known as “spoliation.” American Fam. Mut.
Ins. Co. v. Golke, 2009 WI 81, ¶21, 319 Wis. 2d 397, 768 N.W.2d 729.

¶21 We agree with the circuit court that JX was not involved in the
spoliation of evidence. After the engine replacement, Angotti opted to have the
damaged engine core returned to Cummins which resulted in Angotti saving

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No. 2019AP1904

$8,845 on the ReCon engine. Angotti’s request to inspect the old engine was
made one month after JX returned the truck and only after Angotti decided it
would no longer make payments to JX for the remanufactured Cummins ReCon
engine. Angotti fails to show that JX intentionally destroyed or concealed the
engine in order to prevent Angotti from obtaining evidence about the cause of the
engine problems.

¶22 In summary, the undisputed facts support summary judgment in JX’s
favor. Angotti’s truck had a cracked engine block replaced in 2016 by JX. During
the 2016 repair, the crankshaft was not one of the items replaced and was therefore
not a warranted item under the 2016 warranty. When Angotti complained about a
clunking noise from the front of the engine in 2017, JX diagnosed the problem as a
broken crankshaft. Angotti has failed to produce any evidence to the contrary of
the foregoing facts.

¶23 Furthermore, when JX notified Angotti of the broken crankshaft, it
requested that JX install a remanufactured Cummins ReCon engine. Angotti
completed a JX Enterprises Credit Application and Personal Guarantee knowing
that the remanufactured Cummins ReCon engine was not covered under the 2016
warranty. Angotti paid JX $8,000 instead of disputing whether the repairs were
covered under the warranty. It then opted to save $8,845 by having the engine
returned to Cummins. One month after the return of the truck, Angotti refused to
pay the balance due to JX. Angotti has failed to submit facts sufficient to create a
genuine issue of material fact as to whether it owes JX for the balance due on the
installation of the remanufactured engine. The circuit court properly granted JX’s
summary judgment motion.

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No. 2019AP1904

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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