David Anthony Kroeger v. Melissa Cummings

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.
February 15, 2022
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. 2019AP2248 Cir. Ct. No. 2019SC2762

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

DAVID ANTHONY KROEGER,

PLAINTIFF-APPELLANT,

V.

MELISSA CUMMINGS,

DEFENDANT-RESPONDENT.

APPEAL from a judgment of the circuit court for Outagamie
County: JOHN A. DES JARDINS, Judge. Reversed and cause remanded for
further proceedings.

¶1 GILL, J.1 David Kroeger appeals from a small claims judgment
awarding him $250 on his claim against Melissa Cummings. Kroeger argues the

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All
references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2019AP2248

circuit court erroneously exercised its discretion by awarding him only $250 in
damages. We agree that the court erroneously exercised its discretion by failing to
explain the basis for the amount of damages awarded. We therefore reverse and
remand for the court to reconsider—and to provide an appropriate explanation
for—its decision regarding the amount of damages to which Kroeger is entitled.

BACKGROUND

¶2 Kroeger filed a small claims summons and complaint against
Cummings, his half-sister, in September 2019, alleging that she had failed to pay
him for repairs he performed on her vehicle, and for towing and vehicle storage
costs. Cummings filed an answer and counterclaim, in which she alleged that
Kroeger had failed to provide her with an itemized receipt for the work he had
performed on her vehicle and had improperly refused to return the vehicle for
more than a year. A small claims hearing was held before a court commissioner in
October 2019, after which Kroeger requested a de novo hearing before the circuit
court.

¶3 At the de novo hearing, Cummings testified that in July 2018, her
younger sister arranged for Kroeger to perform repair work on Cummings’ 1999
Dodge Durango. According to Cummings, Kroeger was “only supposed to fix a
brake line and … window,” and the work was supposed to be completed by
September 1, 2018. Cummings called Kroeger on September 8 to inquire about
the status of her vehicle, and the following day Kroeger told her that she owed him
$725 for parts and labor. Cummings testified that she asked Kroeger to provide
her with an itemized bill, but he failed to do so until October 7, 2019. In the
interim, and until the date of the de novo hearing, Cummings refused to pay
Kroeger, and Kroeger refused to return her vehicle.

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¶4 Kroeger testified that when he inspected Cummings’ vehicle in
July 2018, he discovered that the “complete braking system was deteriorated.”
The calibers were leaking, the brake pads and rotors were worn out, the wheel
cylinders were leaking, the rear axle seals were leaking oil onto the brake shoes,
and the brake lines were deteriorated. In addition, Kroeger discovered that the
repair to the vehicle’s window would require “more than just putting [the window]
back on the track. The window regulator was broken or … the track itself was
broken.” Kroeger also noticed that the vehicle’s battery was not properly secured
and was “bouncing into the radiator and into the circuit box.”

¶5 Kroeger testified that he asked Cummings whether she wanted him
to repair the battery, and she agreed that he should do so. He also testified that he
told Cummings her vehicle had “a complete braking system failure” that needed
repair. Cummings, however, denied that she authorized Kroeger to perform any
repairs on her vehicle beyond replacing the brake line and fixing the window.

¶6 The itemized bill that Kroeger provided to Cummings in
October 2019 alleged that she owed him $5,466.20 for parts, labor, and towing
costs. At trial, when Kroeger was asked to explain the discrepancy between that
figure and his initial statement that Cummings owed him $725 for the repairs, he
merely asserted that the “initial figure was misquoted.” The itemized bill also
alleged that Cummings owed Kroeger vehicle storage costs of $20 per day from
September 9, 2018, through September 8, 2019, which amounted to $7,300.2
When the circuit court questioned the reasonableness of those storage costs,

2
Kroeger’s itemized bill identified damages totaling $12,766.20, but because this case
proceeded as a small claims matter, the damages Kroeger could recover were limited to $10,000.
See WIS. STAT. § 799.01(1)(d).

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No. 2019AP2248

Kroeger maintained that they were reasonable because other facilities charged $40
per day for vehicle storage.

¶7 The circuit court ultimately stated: “What I would like to do here
today is just resolve this thing with you folks. And I’m thinking maybe if
[Cummings] paid you [Kroeger] $250, you could just walk away from this whole
thing and let it go.” The court continued:

[Y]ou got the issue of this estate,[3] the family feud kind of
thing, the Hatfields and McCoys going at it, and it’s hard to
trust anybody. I don’t know you people. It’s hard to trust
anybody. But $250 in your pocket is better than nothing.
Just call it a day and move on.

¶8 The circuit court further explained that Kroeger would have been
more credible “if [he] would have acted timely with that $700 bill.” Under the
circumstances, however, the court found that Kroeger did not have “sufficient
credibility” for the court to “believe his claim.” The court subsequently clarified
that it did believe Kroeger had done some repair work on Cummings’ vehicle, but
it was “hard to know with any kind of mathematical precision exactly how much.
So it leaves the Court with not a great idea of what should be awarded.” Without
further explanation, the court then awarded Kroeger $250 on his claim against
Cummings. The court also ordered that Cummings was entitled to the return of
her vehicle. Kroeger now appeals.4

3
Both Kroeger and Cummings acknowledged at trial that there was an underlying
dispute in their family regarding Kroeger’s father’s estate.
4
Cummings has not filed a respondent’s brief in this appeal. We could summarily
reverse the circuit court’s judgment on that basis alone. See WIS. STAT. RULE 809.83(2).
Nevertheless, we exercise our discretion to address the merits of Kroeger’s arguments.

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DISCUSSION

¶9 Kroeger argues that the circuit court erroneously exercised its
discretion by awarding him only $250 in damages. He contends that he presented
uncontroverted evidence during the de novo hearing that established each of the
elements of an unjust enrichment claim. He further argues that the only evidence
presented during the hearing regarding the amount of his damages was the
itemized bill that he provided to Cummings in October 2019, which reflected
repair and towing costs of $5,466.20 and storage costs of $7,300. Under these
circumstances, Kroeger asserts there was no basis in the record for the court’s
decision to award him only $250.

¶10 “A circuit court’s decision to grant equitable relief in an action for
unjust enrichment is discretionary.” Ulrich v. Zemke, 2002 WI App 246, ¶8, 258
Wis. 2d 180, 654 N.W.2d 458. The determination of damages also lies within the
circuit court’s discretion. J.K. v. Peters, 2011 WI App 149, ¶32, 337 Wis. 2d 504,
808 N.W.2d 141. We will affirm a discretionary decision as long as the court
examined the relevant facts, applied a proper standard of law, and used a rational
process to reach a reasonable conclusion. Ulrich, 258 Wis. 2d 180, ¶8.

¶11 As Kroeger correctly notes, an unjust enrichment claim requires
proof of three elements: (1) a benefit conferred on the defendant by the plaintiff;
(2) an appreciation or knowledge by the defendant of the benefit; and
(3) acceptance or retention of the benefit by the defendant under circumstances
making it inequitable for the defendant to retain the benefit. See id., ¶10. Kroeger
argues he established each of these elements at the de novo hearing by presenting
uncontroverted evidence that: (1) he conferred a benefit on Cummings by
providing parts and labor to repair her vehicle, and by towing and storing the

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No. 2019AP2248

vehicle; (2) Cummings had knowledge or an appreciation of the benefit that he
conferred upon her; and (3) it is inequitable for Cummings to retain the benefit of
his services without paying him for them.

¶12 Kroeger overstates his case, as the evidence he presented at trial was
not uncontroverted. Kroeger testified that he told Cummings about the need for
additional repairs—beyond merely replacing her vehicle’s brake line and fixing a
window—and that Cummings agreed he should perform the additional repair
work. Cummings disputed Kroeger’s testimony, however, and asserted that she
did not approve the additional repairs. The circuit court expressly found that
Kroeger’s testimony lacked credibility. When the circuit court acts as the finder of
fact, “it is the ultimate arbiter of the credibility of the witnesses and of the weight
to be given to each witness’s testimony.” Lessor v. Wangelin, 221 Wis. 2d 659,
665, 586 N.W.2d 1 (Ct. App. 1998). Whether Cummings approved the additional
repairs that Kroeger performed is relevant to whether she had an appreciation of
the benefit that Kroeger conferred upon her, and whether it was inequitable for
Cummings to retain that benefit.

¶13 Moreover, while Kroeger asserts that the itemized bill from
October 2019 was the only evidence presented as to the amount of his damages,
the circuit court found that Kroeger’s calculation of damages in the itemized bill
was not credible, given his initial assertion that Cummings owed him only $725.
The court also questioned the reasonableness of Kroeger “racking up” storage fees
of $20 per day for approximately one year, in an amount that greatly exceeded
both the cost of repairs and the value of Cummings’ vehicle.

¶14 Under these circumstances, to the extent Kroeger argues the circuit
court erroneously exercised its discretion by failing to award him the entirety of

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No. 2019AP2248

the repair, towing, and storage fees reflected in the October 2019 itemized bill, we
reject that assertion. The court adequately explained why it did not believe
Kroeger was entitled to all of the damages set forth in the itemized bill.

¶15 Nevertheless, the circuit court stated it believed that Kroeger had
done some work on Cummings’ vehicle. The court explained, however, that it
was difficult to determine “with mathematical precision” what the amount of
Kroeger’s damages should be. The court then awarded Kroeger $250 in damages,
but it did not provide any explanation for its decision to award that amount.

¶16 We agree with Kroeger that the circuit court erroneously exercised
its discretion in this regard. Although the court aptly noted that it was difficult to
determine the amount of Kroeger’s damages with precision, the court completely
failed to explain why it chose to award him $250. When a court fails to
adequately explain its reasoning for a discretionary decision, we may
independently review the record to determine whether it supports the court’s
exercise of discretion. Kustelski v. Taylor, 2003 WI App 194, ¶16, 266 Wis. 2d
940, 669 N.W.2d 780. In this case, however, our independent review reveals no
nexus between the evidence in the record and the court’s decision to award
Kroeger $250. As such, we cannot affirm the court’s award of damages in that
amount. We therefore reverse the court’s judgment awarding Kroeger $250, and
we remand for the court to reconsider—and provide an appropriate explanation
for—its determination as to the amount of Kroeger’s damages.

By the Court.—Judgment reversed and cause remanded for further
proceedings.

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

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