Lisa Marie Sklenar v. Bennett & Roelofs Estate Sales

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 1, 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. 2019AP1717 Cir. Ct. No. 2019SC1038

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

LISA MARIE SKLENAR,

PLAINTIFF-APPELLANT,

V.

BENNETT & ROELOFS ESTATE SALES,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County:
SHELLEY J. GAYLORD, Judge. Affirmed.
No. 2019AP1717

¶1 GRAHAM, J.1 Lisa Marie Sklenar appeals the circuit court’s
decision, made at the end of a small claims trial, that Sklenar is not entitled to the
relief she requested in her complaint. I affirm.

¶2 By way of background, Sklenar retained Bennett & Roelofs Estate
Sales (B&R) to sell a number of items, including a Tiffany heart charm, a Hermes
bracelet, a pair of Louis Vuitton sunglasses, and a 2013 Hyundai. B&R’s owner,
Chris Bennett, testified that the parties orally agreed that B&R would receive a
25% commission for selling these items, but no written contract memorializing
this agreement was presented at trial.2

¶3 Bennett sold the fashion items through eBay to the highest bidder,
and he deducted various fees and the commission from the purchase price for each
item. Bennett also found a used car dealership that would be willing to purchase
the Hyundai. Sklenar negotiated directly with the dealer about the terms of the
sale, and the dealer delivered a $4000 check to Sklenar. According to Bennett, he
collected $500 (that is, half of the 25% commission) directly from the dealer, and
he sought to collect the other half from Sklenar. There is conflicting testimony in
the record about whether Bennett actually collected a $500 commission for the
Hyundai from Sklenar.3

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(a) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
B&R’s appendix includes a letter that Sklenar wrote which appears to acknowledge an
agreement about a commission, but I do not consider this writing because the circuit court
determined that it was inadmissible and B&R makes no argument that this ruling was erroneous.
3
Bennett initially testified that he “deducted [his] commission from the car[] from the
sale of the women’s fashions,” but then testified that he did not deduct “another $500” from the
amount owed on the fashion items. Sklenar testified that Bennett “tried” to deduct the $500
(continued)

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No. 2019AP1717

¶4 After hearing the parties’ testimony, the circuit court rejected
Sklenar’s argument that she was entitled to the amount that she originally paid for
the fashion items, and it determined that Sklenar failed to prove that the items
were worth more than the price they sold for on eBay. The court also appeared to
make a finding of fact that Bennett never collected any commission for the car
from Sklenar. The court told Sklenar: “[Y]ou’re not owed anything on the
commission [for the car]. Someone else paid it. You didn’t pay it.”

¶5 On appeal, Sklenar contends that B&R is not entitled to commission
for any of the items that were sold. She does not dispute the existence of an oral
agreement that B&R would sell her items and take a commission from the
proceeds. She instead argues that based on WIS. STAT. § 402.201, any such
agreement is unenforceable. She also renews her argument that Bennett sold the
fashion items for much less than they were worth, and she argues that she is
entitled to a restitution hearing to establish their value.

¶6 Sklenar’s reliance on WIS. STAT. § 402.201 misses the mark because
she does not develop any argument showing that this statute applies to her oral
agreement with B&R. Section 402.201(1) is the provision of Wisconsin’s
Uniform Commercial Code that requires certain contracts to be in writing. It
specifically pertains to “contracts for the sale of goods,” id., meaning contracts
between buyers and sellers of goods. See WIS. STAT. § 402.102 (discussing the
scope of WIS. STAT. ch. 402 and noting that it applies only to “transactions in
goods”); see also Stack v. Roth Bros. Co., 162 Wis. 281, 156 N.W. 148 (1916)

commission from the amount that B&R owed her for the fashion items, but that Bennett did not
“actually do that.”

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No. 2019AP1717

(discussing a predecessor statute to § 402.201 and explaining that it applies only to
contracts between seller and buyer). Section 402.201 does not apply to other
contracts, such as contracts for services. Schaller v. Marine Nat. Bank of
Neenah, 131 Wis. 2d 389, 400 n.4, 388 N.W.2d 645 (Ct. App. 1986) (noting that
Article 2 of the Uniform Commercial Code does not apply to contracts for
services).

¶7 Here, B&R did not contract to purchase goods from Sklenar. It
instead contracted to list the goods she owned for sale to third parties, and to
facilitate shipping and payment once B&R found a buyer. On its face, this appears
to be a type of contract that would fall outside the scope of WIS. STAT. § 402.201,
and Sklenar does not cite any law or develop any argument to the contrary. See
State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (the
court need not address undeveloped legal arguments on appeal).

¶8 Turning to Sklenar’s argument regarding the value of the fashion
items, the sole evidence she offered at trial was the amount that she originally paid
for these items in 2010 and 2017. The circuit court determined that this evidence
was insufficient to establish their value at the time they were sold in 2018, and
Sklenar does not argue that this determination is erroneous. She instead asserts
that she should have been given the opportunity for a “restitution hearing” so that
she could prove the value of the fashion items. Putting aside that it is not clear
whether restitution would be an appropriate remedy for the claims advanced in the

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No. 2019AP1717

complaint,4 Sklenar’s opportunity to present evidence of her damages was during
the small claims hearing.

¶9 Finally, turning to the Hyundai, the circuit court found that Sklenar
did not pay any commission for the car. Sklenar does not argue that this finding is
clearly erroneous until her reply brief, and appellate courts typically decline to
address arguments that are raised for the first time in a reply brief. State v. Reese,
2014 WI App 27, 353 Wis. 2d 266, 274 n.2, 844 N.W.2d 396. But even if I were
to consider this argument, disregard the court’s finding of fact, and determine that
B&R did collect a $500 commission from Sklenar for the Hyundai, Sklenar does
not show why that fact would matter. Sklenar has advanced just one argument to
support her assertion that B&R is not entitled to a commission for the Hyundai—
that the oral agreement was unenforceable under WIS. STAT. § 402.201—and I
have already rejected this argument for reasons explained above.

¶10 For all of these reasons, I affirm the order of the circuit court.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

4
In her reply brief, Sklenar cites statutes and internet summaries that discuss remedies
available for theft and conversion, but Sklenar’s complaint appears to be based on contract law,
and she cites no authority for the proposition that the circuit court must order a restitution hearing
in a small claims contract dispute.

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