Patrick Rascher Nichols v. Mitch Reynolds

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.
December 23, 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. 2020AP374 Cir. Ct. No. 2019SC2102

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

PATRICK RASCHER NICHOLS,

PLAINTIFF-APPELLANT,

V.

MITCH REYNOLDS AND ANNA KRAUSE,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for La Crosse County:
RAMONA A. GONZALEZ, Judge. Affirmed.

¶1 BLANCHARD, J.1 Patrick Nichols (the contractor) appeals an
order of the circuit court dismissing this small claims action against Mitch

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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.
No. 2020AP374

Reynolds and Anna Krause (the homeowners). The contractor was pro se in both
the circuit court and now on appeal; the homeowners were pro se in the circuit
court and have not filed a brief on appeal. At the end of a trial, the court dismissed
the action on the ground that the contractor failed to show that the homeowners
had a legal obligation to pay the contractor the $3,261.50 that he claimed they
owed him for labor and materials, over and above the $4,182.50 down payment
that they had already made on a total written contract price of $8,365.00. I affirm
for the following reasons.2

¶2 In June 2018, the contractor and the homeowners signed a contract,
using a form created by the contractor’s painting and restoration business. The
homeowners were to pay $8,365.00—half as a down payment and the “remainder
upon completion”—and the contractor was to power wash, prepare for painting,
and then paint portions of a house and a garage.

¶3 In November 2019, the contractor filed the complaint to initiate this
action, giving the following brief statement of facts:

I am owed money for work that was done beyond
the scope of contract and was agreed upon both verbally as
well as through text message. I was unable to complete the
job due to the fact that [the homeowners] refused to sign
off on the extra work added which puts them in breach of
the contract.

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As this court explained to the parties in a December 11, 2020 order, I could summarily
reverse on procedural grounds, given the failure of the homeowners to file a brief on appeal. But
I conclude that judicial interests, including the interest of justice, are not served by summary
reversal of the order, because I conclude that the contractor does not demonstrate that the order is
defective. In sum, the contractor fails to present coherent, supported arguments on appeal that he
was not given a fair hearing by the circuit court or that the court’s decision was defective.

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¶4 In an amended answer, the homeowners made allegations that
included the following. In April 2019, they gave the contractor the down payment
called for in the June 2018 contract. Shortly after that, the contractor began work.
The contractor and the homeowners engaged in a series of communications in
which the contractor said that he needed to be paid various amount more than
$8,365.00 for the work, prompting the homeowners to raise questions and seek
additional details. In June 2019, after demanding what he identified as a non-
negotiable additional $3,098.00—which would bring the total cost to $11,463.00
—the contractor ceased work before the project described in the June 2018
contract was completed. In a counterclaim, the homeowners sought $1,411.50,
which they submitted was “the additional amount” that they needed to pay
someone else “to finish our house beyond what we would have paid [the
contractor] had [the contractor] followed the terms of his contract for the same
work.”

¶5 At trial, the contractor took sometimes difficult to follow positions,
despite what the record reflects were many patient efforts by the circuit court to
assist him by asking pertinent questions using readily understandable language.
The contractor’s position can be boiled down to the following. After the parties
entered in the June 2018 contract, through a series of text messages and
conversations they agreed that, above and beyond the obligations described in the
June 2018 contract, the homeowners would pay the contractor $40 an hour for
work that ended up totaling 181 hours. This, according to the contractor, obligated
the homeowners to pay him $7,240, in addition to $204 for materials, from which
the down payment of $4,182.50 should be deducted, for a total remaining
indebtedness of $3,261.50. The contractor further contended that the extra work
was required because the homeowners wanted him to use a power drill with a wire

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No. 2020AP374

wheel attachment to strip old paint, which added to the work load, even though the
homeowners unreasonably refused to sign a new contract to cover the “add-ons”
generated by use of the wire wheel.

¶6 However, when the circuit court asked the contractor whether the
parties had an agreement as to how many hours of work he would perform outside
the written contract, the contractor acknowledged that they had no agreement on
this topic. When the court attempted to get a better understanding of what sort of
new agreement between the parties the contractor was attempting to describe, his
response was to assert that the homeowners were in “breach of the contract
because they wouldn’t sign off on these add-ons that we had done.” This assertion
of a breach of contract appeared to confuse the circuit court and that confusion
seems understandable. The contractor on multiple occasions failed to explain how
it was a “breach” for the homeowners to decline to “sign off” on any work beyond
that described in the June 2018 contract or what he claimed should have been the
consequence of a breach. However, after much back and forth with the court, the
contractor eventually added this much: once the homeowners in his view
breached the June 2018 contract by failing to sign off on “add-ons,” he was
entitled to $3,261.50 under the doctrine of unjust enrichment.

¶7 I note that recovery for unjust enrichment would be based on the
inequity of allowing the homeowners to retain benefits without paying for them,
measured by the benefits that the contractor conferred on the homeowners, and on
a possibly related note a claim for quantum meruit would be based on an implied
contract to pay reasonable compensation for services rendered, which would be
measured here by the reasonable value of the contractor’s services. See Ramsey v.
Ellis, 168 Wis. 2d 779, 785, 484 N.W.2d 331 (1992) (describing and
distinguishing unjust enrichment and quantum meruit). But, naturally, the

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contractor could not recover for unjust enrichment, or on a claim for quantum
meruit, absent an accounting of what benefits he provided that were not paid for or
a detailed explanation why the compensation he seeks is reasonable. See id. An
additional problem for the contractor is that a claim of unjust enrichment cannot
survive if the parties have entered into a contract, see Continental Cas. v.
Wisconsin Patients Comp. Fund, 164 Wis. 2d 110, 118, 473 N.W.2d 584 (Ct.
App. 1991), and the circuit court here plainly credited the testimony of the
homeowners to the effect that they intended to enter only one contract with the
contractor, the June 2018 contract, and that they did not understand that they were
modifying that contract through any of their post-contract communications with
the contractor. The court stated to the contractor: “You cannot force [the
homeowners] to change the contract without something in writing.”

¶8 Further, the circuit court identified the following hole in the
contractor’s proof: he failed to show what work he performed consistent with the
June 2018 contract, as opposed to any separate work. The contractor testified that,
before he stopped work on the project, he did much of the preparatory work called
for in the June 2018 contract but none of the painting that it called for. When the
court asked the contractor to estimate how much of the preparatory work he had
completed, he testified that he could not answer that question. The court observed
that this was a fundamental shortcoming in his position: “It’s your responsibility
to prove what [work] you did [that was] more than [what was called for in the June
2018] contract that required this extra payment.”

¶9 At one point, the contractor arguably conceded fault to the court. He
acknowledged that his work for the homeowners “changed from the beginning” in
its nature and scope, and that as a result, looking back, he “should have rewrote
the whole contract” for consideration by the homeowners, but he failed to do so.

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On a possibly related note, the contractor also acknowledged that he sometimes
works without a contract, suggesting a generally lax approach to agreements
governing his contracting work, which the court reasonably characterized as “a
problem.” When the court made the general observation that “as a contractor
you’re required to have a contract,” the contractor replied, “Yeah.”

¶10 Moreover, the contractor acknowledged that, consistent with the
June 2018 written contract, he could have declined any use of the allegedly
complicating wire wheel for paint stripping, and therefore he simply did not need
to generate the alleged extra costs that form the basis of this dispute. On that
topic, Reynolds testified that “[i]n no way did I ever mandate that” the contractor
use the wire wheel, and that Reynolds “would defer to the contractor … to come
up with the best way to scrape paint off the house.” Krause testified that, after the
contractor had used the wire wheel on the house, she encouraged him to use it on
the garage as well, so that the buildings would have the same look, but that she
was unable to get a clear response from the contractor as to how much extra work
this would create for him, and at what proposed additional cost to the
homeowners. The court quoted from text messages that corroborated at least
partially unsuccessful efforts by Krause to get more specific information from the
contractor.

¶11 The court summed up its ruling as follows:

Mr. Nichols, … you made a contract to do certain work for
[$8,365.00]; and then you said, [“F]or the extra work it’s
[going to] be $40 an hour[”]; and that does not help you
because what you want to say now is[, “W]e don’t have a
contract; and I just want you to pay me for my time,[”]
which is not what you had a contract to do; and there’s no
contract inside these text messages that says [“T]he
contract is now $40 an hour for every hour I put into this
project.[”]

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No. 2020AP374

The court dismissed both the contractor’s claim and the homeowners’
counterclaim, without objection by the homeowners.

¶12 On appeal, the contractor fails to present a coherent argument tied to
the record and recognizable legal standards that shows error by the circuit court. I
do my best to understand what arguments he might intend to make, given his pro
se status, but I cannot abandon my neutral role to construct arguments for the
contractor as if I were his advocate.

¶13 He purports to base his argument on references to provisions in WIS.
STAT. ch. 403, the chapter of Wisconsin statutes on Uniform Commercial Code
provisions applicable to negotiable instruments, but these references do not match
the text of the cited provisions and therefore are of no use.

¶14 The contractor refers to an “amended contract” and to “amended
verbal agreements.” However, whatever he might mean by these references, they
must contradict the positions he took in the circuit court, at least at times, that the
homeowners breached the June 2018 contract and that he is therefore entitled to
the benefits that he conferred on them based on the inequity of allowing them to
retain uncompensated-for benefits. The contractor also fails to show that the court
erred in crediting the testimony of the homeowners, as corroborated by the text-
message evidence, as showing that the homeowners did not agree to any specific
work-for-payment aside from that reflected in the terms of the June 2018 contract.
Further, his brief does not even attempt to fill in one of the holes identified by the
circuit court: precisely what the alleged uncompensated-for benefits were, as
distinguished from obligations the contractor fulfilled consistent with the June
2018 contract.

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No. 2020AP374

By the Court.—Order affirmed.

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

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