Perfection, LLC v. Edward Cole

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.
October 23, 2019
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. 2017AP2421 Cir. Ct. No. 2014CV449

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

PERFECTION, LLC D/B/A CARL KRUEGER CONSTRUCTION, INC.,

PLAINTIFF-RESPONDENT,

LIBERTY MUTUAL GROUP INC.,

DEBTOR-RESPONDENT,

V.

EDWARD COLE, A/K/A CARL COLE D/B/A NORTH SHORE STATION,

DEFENDANT-APPELLANT,

NNS, LLC D/B/A NORTH SHORE STATION,

DEFENDANT,

CECOLE PROPERTIES, LLC,

DEBTOR.
No. 2017AP2421

APPEAL from a judgment of the circuit court for Waukesha County:
PATRICK C. HAUGHNEY, Judge. Affirmed and cause remanded with
directions.

Before Neubauer, C.J., Reilly, P.J., and Dugan, J.

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).

¶1 PER CURIAM. Edward Cole appeals pro se from a judgment,
which held him liable to Perfection, LLC. He seeks relief from the judgment and
reversal of an earlier ruling that dismissed his cross-complaint against Liberty
Mutual Group Inc. For the reasons that follow, we affirm. In addition, we grant
Perfection’s motion to find this appeal frivolous and remand to the circuit court to
assess reasonable attorney fees against Cole.

¶2 This case arises out of a fire loss that occurred at Cole’s laundromat
business on January 12, 2013. Cole’s business had insurance coverage with
Liberty Mutual. In furtherance of his insurance claim, Cole submitted expenses
relating to his retention of a restoration contractor (Perfection), which was then
doing business as Carl Krueger Construction.1

¶3 After exchanging multiple emails, Cole and Liberty Mutual reached
an agreement as to the final amount of the insurance claim. Liberty Mutual agreed
to pay Cole a total of $298,232.99. In return, Cole signed a policy release in

1
Carl Krueger Construction later assigned its contractual rights to Perfection.

2
No. 2017AP2421

which he agreed to release all claims against Liberty Mutual, including any extra
contractual claims.

¶4 On February 28, 2014, Perfection filed suit against Cole for breach
of contract, alleging that he had withheld payment for some of its work. Cole filed
counterclaims against Perfection, asserting breach of contract and breach of
warranty. He also filed a cross-complaint against Liberty Mutual, alleging that it
had acted in bad faith. In order to pursue this latter claim, Cole sought to rescind
the policy release executed eight months earlier, claiming that he had signed it
under duress.

¶5 Liberty Mutual moved for summary judgment, seeking dismissal of
Cole’s cross-complaint. Following a hearing on the matter, the circuit court
granted the motion. The court refused to allow Cole to rescind the policy release
because he did not, as a matter of law, show the elements necessary to establish
duress.

¶6 The circuit court scheduled trial for the remaining parties for
November 29, 2016. Cole asked to postpone this date after his attorney
successfully moved to withdraw from the case due to a breakdown in the attorney-
client relationship. The court granted the request and set a new trial date for
April 18, 2017.

¶7 As the new trial date approached, Cole’s new attorney also moved to
withdraw, citing disagreement with Cole over strategy. Cole asked the court to
reject the motion; however, he also began acting pro se, submitting numerous
filings. Ultimately, the court denied counsel’s motion, noting that it had “gone
through this before” and wanted to keep the case on track. Accordingly, it refused
to consider Cole’s pro se filings.

3
No. 2017AP2421

¶8 The matter proceeded to trial where a jury found Cole liable to
Perfection for breach of contract and punitive damages.2 The jury rejected Cole’s
counterclaims against Perfection.

¶9 Cole subsequently moved for judgment notwithstanding the verdict
(JNOV). The circuit court denied the motion and entered judgment. As part of
the judgment, the court awarded Perfection costs and attorney fees. This appeal
follows.

¶10 On appeal, Cole seeks relief from the circuit court’s judgment on
several grounds. He also seeks reversal of its earlier ruling that dismissed his
cross-complaint against Liberty Mutual. We address his arguments in turn.

¶11 Cole first contends that the underlying action violated his rights
under federal law. According to Cole, he could not pay Perfection the full amount
of its work because Internal Revenue Service (IRS) rules required him to withhold
monies unless and until he received Perfection’s tax identification number. In
support of this argument, Cole cites conversations that he allegedly had with
unidentified IRS agents.

¶12 The primary problem with Cole’s first complaint is that it comes too
late. Cole did not remove the case to federal court on a theory of preemption. Nor
did he raise the withholding issue as an affirmative defense in his answer or in a

2
The jury awarded punitive damages to Perfection after concluding that Cole had
falsified portions of an exhibit (a change order) after the lawsuit began.

4
No. 2017AP2421

motion for summary judgment.3 Consequently, Perfection’s action was fully
litigated in state court with the jury unaware of the issue. Under these
circumstances, and considering the undeveloped nature of Cole’s argument, we
decline to grant him relief. See Maclin v. State, 92 Wis. 2d 323, 328-29, 284
N.W.2d 661 (1979) (claims will be deemed waived unless timely raised in the
circuit court); State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App.
1992) (rejecting undeveloped arguments).

¶13 Cole next asserts that the circuit court erred in refusing to consider
his pro se filings. He notes that he had a constitutional right to self-representation
and faults the court for failing to engage him in a colloquy under State v. Klessig,
211 Wis. 2d 194, 564 N.W.2d 716 (1997), which is designed to ensure a valid
waiver of the right to counsel.

¶14 It is true that Cole had a constitutional right to self-representation in
this case. See WIS. CONST. art. I, § 21(2). However, it is also true that he
specifically asked the circuit court to reject his attorney’s motion to withdraw.
Once the court did that, it was under no obligation to consider Cole’s pro se
filings. See Moore v. State, 83 Wis. 2d 285, 297-302, 265 N.W.2d 540 (1978) (no
right to hybrid representation at trial level). Likewise, the court was not required
to engage Cole in a colloquy under Klessig because this was not a case where he
had the right to counsel. See Village of Big Bend v. Anderson, 103 Wis. 2d

3
Cole did raise the withholding issue in one of his pro se filings. However, those filings
came well after the circuit court’s deadline for submitting dispositive motions and shortly before
the new trial date. The circuit court properly viewed the filings as a “sham” intended to “obstruct
the judicial process.”

5
No. 2017AP2421

403, 405, 308 N.W.2d 887 (Ct. App. 1981) (no constitutional right to counsel
in a civil case).

¶15 Cole next maintains that the circuit court erred in denying his motion
for JNOV. He renews his assertion that he was required to withhold monies from
Perfection per IRS rules. He also offers another undeveloped argument about
Perfection’s alleged failure to mitigate damages.4 Finally, he suggests that the
court’s award of costs and attorney fees was improper.

¶16 We review the circuit court’s denial of a motion for JNOV de novo.
Hicks v. Nunnery, 2002 WI App 87, ¶15, 253 Wis. 2d 721, 643 N.W.2d 809. “A
motion for judgment notwithstanding the verdict accepts the findings of the
verdict as true but contends that the moving party should have judgment for
reasons evident in the record other than those decided by the jury.” Id. “The
motion does not challenge the sufficiency of the evidence to support the verdict,
but rather whether the facts found are sufficient to permit recovery as a matter of
law.” Id.

¶17 We are not persuaded that the circuit court erred in denying Cole’s
motion for JNOV. Cole has not adequately developed any reasons for why he
should have judgment in this case. As for costs and fees, both were properly
awarded. Perfection was entitled to costs pursuant to WIS. STAT. § 814.01(1)
(2017-18)5 because it won a judgment in its favor. Meanwhile, it was entitled to

4
The jury was instructed on the duty to mitigate damages. Thus, Cole was free to argue
the issue at trial.
5
All references to the Wisconsin Statute are to the 2017-18 version.

6
No. 2017AP2421

attorney fees because of the language of the contract.6 Cole made no settlement
offers under WIS. STAT. § 807.01, which would affect these awards.

¶18 Lastly, Cole submits that the circuit court erred when it dismissed
his cross-complaint against Liberty Mutual. He accuses the court of failing to
consider facts in support of his bad-faith claim.

¶19 We review a circuit court’s decision on a motion for summary
judgment de novo, applying the same standard as the circuit court. Green Spring
Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary
judgment is appropriate if there are no genuine issues of material fact and one
party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2).

¶20 We are satisfied that the circuit court properly granted Liberty
Mutual’s motion for summary judgment. Regardless of the merits of Cole’s bad-
faith claim, the policy release barred him from bringing it. Cole has not advanced
any reason for why he is not bound by that document;7 thus, we decline to discuss
the subject further. See Pettit, 171 Wis. 2d at 646-47.

¶21 As a final matter, Perfection argues that this appeal is frivolous. We
agree. Upon careful review, we are convinced that Cole knew or should have

6
Paragraph 3 of the contract provides, “OWNER AGREES TO PAY ALL COSTS OF
COLLECTION, INCLUDING REASONABLE ATTORNEY FEES.” The circuit court reached
its award of reasonable attorney fees ($100,000) after considering the applicable statutory factors
of WIS. STAT. § 814.045(1). No basis exists to disturb its exercise of discretion.
7
Cole makes no mention of duress in the argument section of his brief. We therefore
deem that issue abandoned. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491,
588 N.W.2d 285 (Ct. App. 1998) (issue raised before the circuit court but not raised on appeal is
deemed abandoned).

7
No. 2017AP2421

known that the entire appeal was without any reasonable basis in law and could
not be supported by a good-faith argument for extension, modification, or reversal
of existing law. See WIS. STAT. RULE 809.25(3). We therefore grant Perfection’s
motion and remand to the circuit court to assess reasonable attorney fees against
Cole.8

By the Court.—Judgment affirmed and cause remanded with
directions.

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

8
To the extent we have not addressed any other argument raised by Cole on appeal, the
argument is deemed rejected. See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261
N.W.2d 147 (1978) (“An appellate court is not a performing bear, required to dance to each and
every tune played on an appeal.”).

8