James R. Friso v. Bob Bennett

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 26, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP436 Cir. Ct. No. 2023SC3370

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

JAMES R. FRISO,

PLAINTIFF-APPELLANT,

V.

BENNETT COACHWORKS LLC,

DEFENDANT-RESPONDENT,

BOB BENNETT,

DEFENDANT.

APPEAL from an order of the circuit court for Racine County:
DAVID W. PAULSON, Judge. Affirmed.
No. 2024AP436

¶1 GROGAN, J.1 James R. Friso, pro se, appeals from a judgment
dismissing his small claims Complaint against Bennett Coachworks, LLC (the
LLC).2 Friso’s brief is difficult to decipher; however, it appears he is arguing that:
(1) the LLC violated a number of WIS. ADMIN. CODE ch. ATCP 132 provisions
when Friso hired it to provide a “show quality” paint job for his 1973 Plymouth
Barracuda and that the circuit court erred when it, he says, refused to allow him to
ask about the alleged ch. ATCP 132 violations during the court trial; and (2) new
evidence exists warranting a new trial. This court affirms.

I. BACKGROUND

¶2 Friso filed suit against the LLC, alleging that he had hired it in late
September 2022 to complete a “show quality” paint job on his Barracuda, which
he intended to display at a car show in early December 2022, and that the LLC’s
workmanship was poor.3 The case was tried to the circuit court, and Friso, who
also appeared pro se at trial, testified that he entered into the agreement with the
LLC to clean, prep, mask, and paint the car. He explained that he delivered the car
to the LLC late on Friday, September 30, 2022, he gave the LLC two weeks to
complete the job, and he had authorized up to $3,000 in expenses. Friso also
testified that despite the two-week timeline, he received a call from Ted, the

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2021-22). All
references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
Friso filed the Complaint against Bob Bennett personally and the LLC, but before trial,
Bob Bennett was dismissed by stipulation between the parties and by order of the circuit court.
3
Friso’s brief states that he “met with Bob Bennett on 9/14/23” to discuss the work to be
done on his vehicle. He also states in his brief that he informed Bennett that “the car had to be at
a sponsor car event 12/8/23.” Given that Friso filed his Complaint on September 13, 2023, and in
light of the testimony provided at trial, this court assumes the events described and discussed
herein occurred in September through December 2022 rather than in 2023.

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No. 2024AP436

LLC’s manager, on Friday, October 7, 2022, and that Ted informed him that the
job had been completed and that he could pick up the car. Friso testified that he
inspected the car when he went to pick it up and that he “was horrified” because
the car had “bare spots that had no primer,” “bare spots that had no top coat,” and
“dirt throughout the paint.” Although he reported his concerns about the poor
quality of the paint job to Ted, attempts to discuss the problems with the LLC
were ultimately unsuccessful.4

¶3 Friso also testified as to his purported damages during his testimony,
explaining that he had paid $3,337.47, including a $500 deposit to the LLC, which
he wanted refunded, and that he was also seeking reimbursement for all the costs
he incurred in having the LLC’s paint job removed and the car repainted.5

¶4 During cross-examination, Friso admitted, upon being shown a
document from his credit union, that he had already been refunded $2,837.45—
everything he had paid the LLC except the $500 deposit.6 He testified that he had
forgotten about the refund when calculating his claimed damages and that he
would no longer be claiming the refunded amount. Friso also testified that his
contractual agreement with the LLC identified the scope of the LLC’s work as
“[b]asically painting frame to customer specs[,]” and that the cost would be “$78

4
Friso confirmed that he did in fact “show” the car in the car show as planned despite
the disappointing paint job.
5
Although Friso testified that he paid $3,337.47, there were also references to $3,337.50
and $3,337 during the course of the trial. These minor discrepancies ultimately have no bearing
on the outcome of this appeal.
6
Friso had filed a dispute with the credit union regarding the amount paid in light of his
dissatisfaction with the LLC’s final product.

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No. 2024AP436

per hour for paint and materials[,]” and he confirmed this document was the only
written contract or agreement between the parties.

¶5 After the cross-examination, the circuit court advised Friso that, as
the plaintiff, he had the burden of proof and asked if he had any further testimony.
Friso responded that he “would like to go through some of this commentary from
Ted with regards to the -- with regards to the tape recorded phone call.” The
court, however, refused to allow Friso to do so, stating that it would not allow “a
tape recorded phone call that Ted didn’t know was being tape recorded” and
explained to Friso that he could have subpoenaed Ted to appear and testify at the
trial.7

¶6 Friso then called Bob Bennett to testify adversely. Bennett testified
that he had conversations with Friso about painting his car and that Friso
explained he would be taking it to a car show that December. In response to
questions, Bennett explained that Friso wanted the job completed quickly and that
they had discussed the LLC’s wait list and whether the LLC could get Friso’s car
on its schedule. The circuit court noted that the contract listed the “promised date”
as “ASAP.”

¶7 When asked about having the car “blasted,” or “stripped”8 before it
could be painted, Bennett testified that typically, the LLC would send it to a
company in Detroit where the car would be chemically stripped to ensure that the

7
In his appellate briefs, Friso faults the circuit court for referring to this as a recording
from a phone call and explains that the recording was from an in-person discussion he had with
Ted after which he had the recording transcribed. However, Friso himself referred to it as a “tape
recorded phone call” and thus cannot fault the circuit court for using the same language.
8
The terms “blasting” and “stripping” will be used interchangeably.

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No. 2024AP436

body was rust-free. He explained the stripping company uses a process to ensure
the primer “wicks” “up into all the crevices” to get “100 percent coverage.”
Bennett testified that he explained this to Friso but that Friso had said he did not
have time for that process and he would take care of the stripping before bringing
the car to the LLC to paint.

¶8 Bennett testified that when Friso brought the car in to the LLC, it
had residue from the blasting process in “every single crack, crevice and hole[.]”
Bennett explained he did not expect Friso to deliver the car uncleaned and that as a
result of its condition, the LLC had to spend three days trying to remove the
residue, which left it only “one very long day” to do all the priming and painting
due to Friso’s five-day timeframe. When Friso showed Bennett post-paint photos
of the car, Bennett admitted “that in the tight sections of the roll cage and in the
frame and in some of the hidden panels that there was primer showing through or -
- on a couple of them I think I can see some metal coming through.”

¶9 When asked specifically about the five-day deadline to paint the car,
Bennett testified that he was “told that many times” “from the beginning of the
conversations with [Friso] because [he was] running such a tight timeline.”
Bennett further explained that he did not provide an “estimated completion date”
because Friso told him he had “five days to do it.” When asked if he had that in
writing, Bennett responded that he did not, but that “three or four other staff”
heard Friso say it. Friso then began to ask Bennett the following: “According to
ATCP132 --[.]” However, the LLC’s attorney objected, and the circuit court
sustained the objection, explaining to Friso that he could not ask Bennett “legal
questions[.]”

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No. 2024AP436

¶10 When Friso asked Bennett why he did not call Friso to discuss that
cleaning the car had consumed so much of the week, Bennett responded that he
did call Friso. Bennett said Friso not only was told about the time consumed by
cleaning the car, but that Friso had even come to the LLC to help clean it. Bennett
further testified that he and Friso had discussed it and that because Friso
“pressured us to get it done by Friday[,]” “we did everything we could possibly do
and still get the car to the point where we had enough time that we could get paint
on it and have it ready to deliver on Friday.” When pressed about why the LLC
proceeded to paint the car if it was not fully ready, Bennett testified: “We made
the decision to push it in on Thursday and paint because we had a Friday deadline,
period[,]” and that “[t]here was nothing further we could do in the time span that
we were given.” He also indicated that the LLC “painted it within [the] budget
and within [the] time frame” Friso provided.

¶11 In addition to the foregoing, the trial transcript also reflects
numerous occasions where the circuit court had to explain trial procedure/rules of
evidence to Friso and a number of times where Friso’s self-representation
frustrated the circuit court. For example, the court noted that it might be necessary
to schedule another day for the trial because Friso was “repeating and repeating
and arguing” instead of asking questions, which caused the trial to take longer than
the court had allotted.

¶12 At one point, Friso told the circuit court that he was “almost
finished,” and then they went “off the record[.]” Once back on the Record, Friso
told the court he had “more stuff.” The court responded: “Well, what more
relevant stuff do you have? We’re not going through these hundred pages of
things that you gave me if they don’t relate to what the issue is here. Let’s go,
what have you got? What have you got next?” At that point, Friso said he would

6
No. 2024AP436

“stop there[.]” Friso rested his case, and Bennett moved for a directed verdict,
which the circuit court denied.

¶13 The LLC called Bennett to testify on its behalf, during which he
emphasized that: (1) it was Friso’s decision to complete the job in one week;
(2) the LLC thought the job would involve only painting, but that the job changed
when Friso brought the car in a condition that required significant cleaning; (3) the
LLC spent Monday, Tuesday, and half of Wednesday vacuuming and blowing it
out and that at that point, it had to “start wiping it down” and “masking it up”;
(4) the painter spent a very long day on Thursday spraying the primer and the
paint to get the car done by the five-day deadline; and (5) Friso was made aware of
these issues, was present on that Tuesday, and was “in constant phone contact”
throughout the week regarding the car. Bennett admitted that the paint job was not
perfect but said that “was caused by a time crunch” “to get all the painting done in
one day” because the car came in needing to be cleaned, which he was not
expecting.

¶14 On cross-examination, Friso tried to make the point that the LLC
really only worked on the car for four and one-half days instead of five and asked
Bennett if he would have done anything different if he had had more time and why
Bennett had not called him to ask for additional time. Most of these questions
(along with many of his other questions), however, were either objected to as not
relevant, asked and answered, or argumentative, and the circuit court largely
sustained those objections. Further, the circuit court, which was clearly frustrated
with Friso, at one point stated:

I’m going to start looking for a day for you all to come
back again if we don’t get this done.

7
No. 2024AP436

Mr. Friso, I sustained the objection on relevance. Let’s
go on with the next question. You’re arguing and restating
everything I let you ask him initially. So[,] let’s just go to
something new, something different. He had a five-minute
direct examination and you ha[ve] already exceeded it with
your questions, which are argumentative and repetitive of
what you’ve already asked him. You’ve made a very clear
record here.

¶15 The LLC did not call any witnesses aside from Bennett, and when
the circuit court asked Friso if he had any rebuttal, he responded that he was
“pretty much numb right now,” asked the court to review the photographs and
other evidence he had provided, and explained that he had owned “this car since
high school.” Friso did not mention WIS. ADMIN. CODE ch. ATCP 132, let alone
argue to the court that the LLC had violated its provisions.

¶16 Following defense counsel’s closing argument, the circuit court
made the following findings: (1) based on the invoice/work order and testimony,
Friso gave the LLC a five-day window to complete the job; (2) there was no
warranty; (3) the contract was for painting only; (4) the car was brought to the
LLC “dirty,” and the residue had to be removed before it could be painted, which
took three days; (5) had the car been brought in clean, the LLC could have done
multiple coats of paint; and (6) Bennett was more credible because Friso initially
testified that he was trying to recover money he had paid the LLC for which he
later admitted he had already been refunded. Based on these findings, the court
concluded Friso failed to meet his burden of proof and dismissed the case with
prejudice on the merits. Friso appeals.

II. DISCUSSION

¶17 As best as this court can tell, Friso believes the circuit court erred
because it allegedly would not let him argue that the LLC violated provision in the

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No. 2024AP436

ATCP and because it made what Friso believes to be credibility errors in assessing
the witnesses. In support of these assertions, Friso points to a text message and a
transcript from a recorded conversation he says he filed with the court but that he
did not get to introduce as evidence at trial that he says would have impacted the
circuit court’s credibility determination.

¶18 On appeal, this court is bound by the applicable standards of review
and rules governing reversals and new trial requests. First, an appellant bears the
burden to demonstrate how the circuit court erred. Gaethke v. Pozder, 2017 WI
App 38, ¶36, 376 Wis. 2d 448, 899 N.W.2d 381. While this court recognizes that
Friso appears pro se, he nevertheless must abide by the same rules as attorneys.
See Waushara County v. Graf, 166 Wis. 2d 442, 452, 480 N.W.2d 16 (1992).
This court “review[s] a circuit court’s decision to admit or exclude evidence” for
an erroneous exercise of discretion. Martindale v. Ripp, 2001 WI 113, ¶28, 246
Wis. 2d 67, 629 N.W.2d 698. Under this standard, “this court will uphold a
decision to admit or exclude evidence if the circuit court examined the relevant
facts, applied a proper legal standard, and, using a demonstrated rational process,
reached a reasonable conclusion.” Id.

¶19 Second, this court does not have the opportunity to see or hear the
testimony witnesses give at trial; rather, this court can only review the written trial
transcript. Accordingly, this court defers to the circuit court’s credibility
determinations. See Cogswell v. Robertshaw Controls Co., 87 Wis. 2d 243, 250,
274 N.W.2d 647 (1979) (“the trial judge is the ultimate arbiter of the credibility of
the witnesses”). This court’s appellate functions do not include weighing the
credibility of the various witnesses. See Lang v. Lowe, 2012 WI App 94, ¶16, 344
Wis. 2d 49, 820 N.W.2d 494.

9
No. 2024AP436

¶20 Third, this court upholds factual findings unless they are clearly
erroneous, i.e., if the findings are “‘against the great weight and clear
preponderance of the evidence.’” State v. Arias, 2008 WI 84, ¶12, 311 Wis. 2d
358, 752 N.W.2d 748 (citation omitted). “[A] factual finding is not clearly
erroneous merely because a different fact-finder could draw different inferences
from the record.” State v. Wenk, 2001 WI App 268, ¶8, 248 Wis. 2d 714, 637
N.W.2d 417. Thus, “[w]here multiple inferences are possible from credible
evidence, we must accept those drawn by the trial court.” State v. Lopez, 173
Wis. 2d 724, 729, 496 N.W.2d 617 (Ct. App. 1992).

¶21 Finally, “a party must raise and argue an issue with some
prominence to allow the trial court to address the issue and make a ruling.” State
v. Ledger, 175 Wis. 2d 116, 135, 499 N.W.2d 198 (Ct. App. 1993). If the party
fails to do so, this court deems the issue abandoned or forfeited and will not
address the issue on appeal. See id.

A. ATCP Violations

¶22 Friso argues on appeal that the LLC violated a number of WIS.
ADMIN. CODE ch. ATCP 132 provisions and that the circuit court erroneously
prevented him from presenting these at trial. This court has reviewed the entire
trial transcript and found only one reference to the ATCP, which occurred when
Friso began questioning Bennett about the ATCP’s provisions. At that point,
however, the LLC’s counsel objected, and the circuit court, after sustaining the
objection, explained to Friso that he could not ask Bennett “legal questions” or
argue with him. Both of the circuit court’s statements are correct as a lay witness
cannot answer legal questions as part of their testimony, and the questioner—here
Friso representing himself—cannot argue with a testifying witness. Rather, Friso

10
No. 2024AP436

may only ask questions about the facts of the case of which Bennett had personal
knowledge. See WIS. STAT. § 906.02.

¶23 Although it sustained defense counsel’s objection when Friso began
questioning Bennett about the ATCP, the circuit court did not otherwise prohibit
him from asking Bennett questions that may have supported an argument that the
transaction violated WIS. ADMIN. CODE ch. ATCP 132’s provisions. Rather, it
only prohibited Friso from asking Bennett about what the ATCP says or requires.
Friso, however, chose not to mention the ATCP again.9 For example, at the close
of evidence, Friso did not argue that there were ATCP violations, and he also did
not request that the court find that the LLC violated the ATCP. Accordingly, this
court concludes that Friso abandoned any claim under the ATCP at the trial, and
this court cannot address it on appeal.10

B. New Trial

¶24 Friso also seeks a new trial, first alleging that a text message from
Bennett referencing a two-week time period related to the job would have

9
This court recognizes that Friso asserts his reason for not mentioning the ATCP
violations again was because he was concerned it would anger the circuit court, and he was
scared to do so. This court cannot reverse on that basis. A litigant must raise an issue in the
circuit court with prominence to preserve any objection to an alleged circuit court error. See
State v. Ledger, 175 Wis. 2d 116, 135, 499 N.W.2d 198 (Ct. App. 1993). Friso has forfeited this
challenge on appeal because he failed to make this argument before the circuit court. See
Schonscheck v. Paccar, Inc., 2003 WI App 79, ¶¶10-11, 261 Wis. 2d 769, 661 N.W.2d 476.
10
Friso also relies on an unpublished opinion from this court, Eastman v. Bennett,
No. 2006AP626, unpublished slip op. (WI App May 15, 2007), arguing that because Bennett
violated WIS. ADMIN. CODE ch. ATCP 132’s provisions in that case, the LLC should be found to
have violated the same in his case. That case is not controlling here as each case is based upon
the individual facts and arguments presented at the respective trials. Moreover, Friso’s citation to
Eastman, which was issued in 2007, violates the rules of appellate procedure. See WIS. STAT.
RULE 809.23(3)(b) (allowing citation to unpublished opinions issued on or after July 1, 2009).

11
No. 2024AP436

impacted the circuit court’s credibility finding, and then second, alleging that he
had submitted numerous exhibits that ultimately were not admitted into evidence.
As to the latter, he apparently faults the circuit court for requiring him to testify
and present his case from the witness stand instead of allowing him to present his
case from the counsel table,11 and he also claims that the circuit court’s demeanor
toward him made him feel rushed and caused him to forget to introduce the text
message and other evidence/exhibits.

¶25 A party may move for a new trial pursuant to WIS. STAT.
§ 805.15(1), and § 805.15(3) provides that a circuit court “shall” grant the motion
upon a finding that the following four factors are met:

(a) The evidence has come to the moving party’s notice
after trial; and

(b) The moving party’s failure to discover the evidence
earlier did not arise from lack of diligence in seeking to
discover it; and

(c) The evidence is material and not cumulative; and

(d) The new evidence would probably change the result.

It is undisputed here that the first factor is not met with respect to the text message
or any of the other documents Friso did not introduce at trial because they were
known to him at the time of trial—he did not learn of them only after the trial,
which § 805.15(3)(a) requires.12 Consequently, while this court certainly
understands that Friso disagrees with the circuit court’s credibility determination
and believes that it may have reached a different conclusion had it been aware of

11
The Record reflects, however, that the circuit court did allow Friso to retrieve
documents from the counsel table during the course of his testimony.
12
This also applies to the Eastman case he claimed was new evidence.

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No. 2024AP436

these documents, Friso had this information available to him at the time of trial,
and it was his burden to introduce evidence at the trial that he believed would
convince the circuit court that his version of what occurred was the truth. The
circuit court, which saw and heard both Friso’s and Bennett’s respective versions
of the facts, ultimately believed Bennett, and Friso has not presented anything in
his briefs to convince this court that the circuit court’s credibility findings were
against the great weight and clear preponderance of the evidence admitted at trial.

¶26 Finally, this court cannot grant a new trial on the basis that Friso
became flustered by the circuit court’s pressure to complete the case without
“repeating and repeating and arguing” with the witness. The circuit court is
allowed to control the mode and operation of the presentation of the witnesses.
See WIS. STAT. § 906.11. This statute provides:

(1) CONTROL BY JUDGE. The judge shall exercise
reasonable control over the mode and order of interrogating
witnesses and presenting evidence so as to do all of the
following:

(a) Make the interrogation and presentation effective
for the ascertainment of the truth.

(b) Avoid needless consumption of time.

(c) Protect witnesses from harassment or undue
embarrassment.

(2) SCOPE OF CROSS-EXAMINATION. A witness may be
cross-examined on any matter relevant to any issue in the
case, including credibility. In the interests of justice, the
judge may limit cross-examination with respect to matters
not testified to on direct examination.

(3) LEADING QUESTIONS. Leading questions should not be
used on the direct examination of a witness except as may
be necessary to develop the witness’s testimony.
Ordinarily leading questions should be permitted on
cross-examination. In civil cases, a party is entitled to call
an adverse party or witness identified with the adverse
party and interrogate by leading questions.

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No. 2024AP436

¶27 Friso has failed to convince this court that the circuit court
committed reversible error. Although it appears Friso was intimidated by the
circuit court’s control during the trial, he has failed to present this court with any
basis upon which reversing the order or ordering a new trial is warranted.

By the Court.—Order affirmed.

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

14