Elite Construction Custom Homes of Appleton, LLC v. Bee Moua

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.
November 10, 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. 2019AP1734 Cir. Ct. No. 2018CV125

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

ELITE CONSTRUCTION CUSTOM HOMES OF APPLETON, LLC,

PLAINTIFF-RESPONDENT,

V.

BEE MOUA,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Outagamie County:
MITCHELL J. METROPULOS, Judge. Affirmed and cause remanded with
directions.

Before Stark, P.J., Hruz and Seidl, JJ.

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).
No. 2019AP1734

¶1 PER CURIAM. Bee Moua appeals a judgment that awarded Elite
Construction Custom Homes of Appleton, LLC, $8,685 in damages and $6,752.50
in attorney fees and costs. Moua argues the circuit court erred by: (1) awarding
attorney fees to Elite; (2) awarding damages to Elite under the parties’ mediation
agreement; and (3) concluding Elite did not fail to mitigate its damages. We reject
each of Moua’s arguments and affirm.

¶2 In addition, we conclude Elite is entitled to recover the attorney fees
that it incurred in connection with this appeal. We therefore remand this matter for
the circuit court to determine the amount of additional attorney fees that Elite is
entitled to recover and to amend the existing judgment to include that amount.

BACKGROUND

¶3 In June 2017, Elite agreed to complete remodeling and other
construction services at Moua’s residence. The parties’ agreement was
memorialized in two written documents: (1) a Homeowner/Contractor Agreement
that was required for Moua to obtain a mortgage from Finance of America (the FOA
contract); and (2) an Elite Construction Custom Homes of Appleton, LLC Contract
(the construction contract).

¶4 As relevant to this appeal, the FOA contract provided: “With respect
to the scheduled completion of the work, time is of the essence.” The construction
contract, in turn, stated: “Should litigation be necessary to enforce Elite
Construction’s rights arise [sic] under the terms of this Contract, Customers agree
to pay Elite Construction’s reasonable attorneys’ fees and expenses.”

¶5 Elite provided labor and materials for the remodeling project at
Moua’s property. However, disputes arose regarding the quality and timeliness of

2
No. 2019AP1734

Elite’s work. Moua therefore terminated the contracts in December 2017 and
refused to pay the balance of the contract price.

¶6 In February 2018, Elite filed the instant lawsuit against Moua,
asserting claims for breach of contract and unjust enrichment. Moua subsequently
asserted counterclaims for breach of contract, breach of warranty of fitness for a
particular purpose, professional negligence, and violations of the Wisconsin
Administrative Code.

¶7 The parties ultimately mediated their dispute and entered into a
mediation agreement dated August 31, 2018. The mediation agreement stated that
on or before October 12, 2018, Elite was required to “complete the remodeling
project at [Moua’s property] in accordance with the contract documents, which
includes [the FOA contract], and in accordance with the scope of work identified in
the [construction contract].” The agreement specified that the work Elite was
required to complete included, but was not limited to, “installation of remaining
flooring in the dining room and living room of the property … and installation of
countertop materials and baseboard trim.”

¶8 The mediation agreement further provided that Elite was entitled to
“total remaining disbursements of $14,970.00 from the funds held in the Finance of
America Mortgage Company escrow account for Bee Moua.” The agreement
required Moua to “cooperate with Elite … and its efforts to make draws from the
subject escrow account during the course of completion of the foregoing work.”

¶9 After the parties signed the mediation agreement, Elite took the
position that it would not perform the remaining work until a third draw was paid
for work that had already been completed. It is undisputed that Moua did not release
the funds for that third draw until October 3, 2018.

3
No. 2019AP1734

¶10 On the same day, Elite’s managing member, Jared Schmidt, met with
Moua. Schmidt asserts that during that meeting, Moua “demand[ed] that Elite …
perform additional work on the residence beyond that agreed to in the Mediation
Agreement.” Schmidt claims he therefore “prepared a punch list of work that
needed completing in order to ensure that the parties agreed on the outstanding
work.” Based on Moua’s comments during the October 3 meeting, Schmidt
believed Moua “did not intend to make payment upon [Elite’s] completion of the
punch list.” Schmidt therefore refused to perform any additional work on the project
until Moua approved the punch list in writing.

¶11 Elite’s attorney filed the proposed punch list with the circuit court on
October 5, 2018, and also provided a copy to Moua’s attorney. On October 12—
the deadline by which the mediation agreement required Elite to complete its
work—Moua’s attorney emailed Elite’s counsel approving the punch list. Moua
contends, however, that counsel did so without his permission.

¶12 Elite arrived at Moua’s property on October 12 and finished installing
the flooring in the living and dining rooms, as required by the mediation agreement.
As noted above, the mediation agreement also required Elite to install countertops.
The countertops needed to be installed on top of kitchen cabinets. However, on the
evening of October 11, Moua and his roommate had moved the kitchen cabinets out
of Moua’s house and placed them in the garage. Schmidt testified that when he
asked Moua where the cabinets were on October 12, Moua told him the cabinets
were “not here” and had been “moved off site.”

¶13 In contrast, Moua testified he told Schmidt on October 12 that the
cabinets were “in storage,” but he never used the term “off site” and he never stated
the cabinets were not on the property. Moua testified he moved the cabinets into

4
No. 2019AP1734

the garage to free up space for Elite to complete its other work. Moua also testified
that the cabinets were “very accessible,” and it would have taken only a few minutes
to move them into the kitchen from the garage.

¶14 Elite did not complete its work by the October 12 deadline set forth in
the mediation agreement. Elite blames its failure to do so on Moua’s actions—
specifically, his delay in approving the punch list and paying the third draw, as well
as his “hiding” the cabinets in the garage “to prevent Elite from completing the
scope of work.” Moua, in turn, asserts that the mediation agreement did not require
him to pay the third draw or approve a punch list before Elite began its work. In
addition, Moua contends that even if he had not moved the cabinets into the garage,
Elite would have been unable to finish all of the required work on October 12.

¶15 On October 13, 2018, Moua fired Elite via email, on the grounds that
Elite had failed to complete the required work by the October 12 deadline. Moua’s
email therefore stated that Elite’s services were “no longer accepted and [were]
prohibited on [Moua’s] property.”

¶16 Elite subsequently moved to enforce the parties’ mediation
agreement, requesting the right to enter Moua’s property to complete the required
work. In the alternative, Elite asked the circuit court to award it $8,685 in
damages—which Elite asserted represented the total amount due under the
mediation agreement, less the amount of the third draw and the cost of the work
Elite had not completed. Elite also asserted that under the construction contract, it
was entitled to recover the attorney fees and costs it had incurred in order to enforce
its contractual rights.

¶17 Following a December 14, 2018 hearing on Elite’s motion, the circuit
court entered an order giving the parties ten days to “attempt to reach agreement on

5
No. 2019AP1734

the punch list of work to be completed according to the terms of the Mediation
Agreement.” However, the parties were unable to reach an agreement regarding a
new punch list.

¶18 Thereafter, in May 2019, Moua filed a supplemental brief in
opposition to Elite’s motion to enforce the mediation agreement. Moua argued the
mediation agreement incorporated the “time is of the essence” clause from the FOA
contract. Moua therefore asserted that Elite’s failure to complete the work described
in the mediation agreement by October 12, 2018, constituted a material breach of
that agreement, which permitted Moua to fire Elite. Accordingly, Moua argued that
although Elite was entitled to receive the reasonable value of its postmediation work
under a quantum meruit theory, it was not entitled to the amount due under the
mediation agreement.

¶19 Moua also argued that Elite was not entitled to recover its claimed
damages under the mediation agreement because it had failed to mitigate its
damages. Finally, Moua argued Elite was not entitled to recover its attorney fees
because the mediation agreement did not specifically state that Elite was entitled to
those fees and did not incorporate the attorney fee provision from the construction
contract.

¶20 Following an evidentiary hearing on Elite’s motion to enforce the
mediation agreement, the circuit court issued an oral ruling granting Elite’s motion.
The court found that the amount remaining due under the mediation agreement was
$8,685. The court concluded Elite was entitled to recover that amount because
Moua had frustrated Elite’s ability to perform the work required by the mediation
agreement. Specifically, the court found that the “greater weight of the evidence”
showed that Moua had “intentionally frustrate[d]” Elite’s efforts to install the

6
No. 2019AP1734

kitchen cabinets by removing them from the house and then telling Elite they were
“not available.” The court further found that Moua had changed his mind about “a
number of things” during the course of the project and “would come to agreements,
but then he wouldn’t want to live up to the agreements.” Based on its findings, the
court concluded Moua had “really frustrated this entire construction project.”

¶21 The circuit court also determined that Elite was entitled to recover the
reasonable attorney fees it had incurred in attempting to enforce the mediation
agreement. The court subsequently entered a written judgment awarding Elite
$8,685 in damages and $6,752.50 in attorney fees and costs. Moua now appeals.

DISCUSSION

I. Attorney fees

¶22 Moua first argues that the circuit court erred by awarding Elite
attorney fees. Wisconsin adheres to the American Rule, under which parties to
litigation are generally responsible for their own attorney fees, unless one of several
limited exceptions applies. Estate of Kriefall v. Sizzler USA Franchise, Inc., 2012
WI 70, ¶72, 342 Wis. 2d 29, 816 N.W.2d 853. Moua argues that no such exception
applies in this case, and, as a result, there was no basis for the court to award Elite
attorney fees.

¶23 An exception to the American Rule exists, however, “where the
parties contract for the award of attorney fees.” Id. Elite argues that exception
applies here because the parties’ mediation agreement incorporated the attorney fee
provision contained in the construction contract. Elite therefore argues it was
entitled to recover the reasonable attorney fees it incurred in enforcing the mediation
agreement.

7
No. 2019AP1734

¶24 We agree with Elite’s analysis. A mediation agreement is a contract,
the interpretation of which presents a question of law for our independent review.
American Nat’l Prop. & Cas. Co. v. Nersesian, 2004 WI App 215, ¶14, 277 Wis. 2d
430, 689 N.W.2d 922. When interpreting a contract, we generally seek to give effect
to the parties’ intentions. Tufail v. Midwest Hosp., LLC, 2013 WI 62, ¶25, 348
Wis. 2d 631, 833 N.W.2d 586. “We presume the parties’ intent is evidenced by the
words they chose, if those words are unambiguous.” Id., ¶26 (citation omitted).
Accordingly, “[w]here the terms of a contract are clear and unambiguous, we
construe the contract according to its literal terms.” Id.

¶25 Here, the mediation agreement states that Elite “shall complete the
remodeling project … in accordance with the contract documents.” The term
“contract documents” unambiguously refers to the two prior contracts between the
parties—i.e., the FOA contract and the construction contract. As noted above, the
construction contract states: “Should litigation be necessary to enforce Elite
Construction’s rights arise [sic] under the terms of this Contract, Customers agree
to pay Elite Construction’s reasonable attorneys’ fees and expenses.” We agree
with Elite that by requiring it to complete the project “in accordance with the
contract documents,” the mediation agreement incorporated the terms of the
construction contract, including the attorney fee provision. We further agree that
the instant lawsuit was necessary to enforce Elite’s rights under the construction
contract and mediation agreement. As such, Elite was entitled to recover its
reasonable attorney fees.

¶26 Moua argues the mediation agreement does not incorporate the entire
construction contract. He notes that although the mediation agreement states Elite
“shall complete the remodeling project … in accordance with the contract
documents,” it then specifies, “which includes [the FOA contract], and in

8
No. 2019AP1734

accordance with the scope of work identified in the [construction contract].”
(Emphasis added.) Based on that language, Moua argues the mediation agreement
incorporates only the scope of work provision from the construction contract, and
nothing else.

¶27 We are not persuaded. The wording Moua relies upon does not limit
the portions of the contract documents that the mediation agreement incorporates;
instead, it clarifies specific provisions of each contract that are included. We agree
with Elite that it makes sense the parties would have specifically referenced the
scope of work provision from the construction contract because the FOA contract
does not contain a scope of work provision and the scope of Elite’s remaining work
was at issue in the mediation. We further agree with Elite that if the parties had
intended the mediation agreement to incorporate only the construction contract’s
scope of work provision rather than the entire construction contract, they would not
have included the broad language stating that Elite was required to complete the
project “in accordance with the contract documents.”

¶28 Because the mediation agreement incorporates the attorney fee
provision from the construction contract, the circuit court properly determined that
Elite was entitled to recover its reasonable attorney fees. On appeal, Moua does not
argue that the amount of attorney fees the court awarded was unreasonable. We
therefore affirm the court’s attorney fee award.

II. Material breach

¶29 Moua next argues the circuit court erred by awarding Elite $8,685 in
damages under the mediation agreement. Moua argues the mediation agreement
incorporated the “time is of the essence” clause from the FOA contract. Moua
therefore argues that Elite’s failure to complete the project by October 12, 2018,

9
No. 2019AP1734

was a material breach of the mediation agreement. As a result, Moua argues Elite
was not entitled to recover the remaining amount due under the mediation
agreement but instead was only entitled “to receive the reasonable value of its
post-mediation work, under a quantum meruit theory.”

¶30 In response, Elite argues the “time is of the essence” clause in the
FOA contract should not be given effect because it fails to set forth any penalty or
consequence for Elite’s failure to timely perform its contractual obligations. In the
alternative, Elite argues that even if time was of the essence of the mediation
agreement, the circuit court properly determined that Moua frustrated Elite’s
performance of its obligations under that agreement, thereby excusing Elite’s failure
to complete the project by the October 12, 2018 deadline.

¶31 As noted above, the mediation agreement states Elite “shall complete
the remodeling project … in accordance with the contract documents,” and it then
specifies, “which includes [the FOA contract].” We therefore conclude that the
mediation agreement incorporated the “time is of the essence” clause from the FOA
contract, and we assume without deciding that time was of the essence with respect
to the October 12, 2018 deadline in the mediation agreement. Nevertheless, we
conclude the circuit court properly determined that Elite’s failure to comply with
that deadline did not prevent Elite from recovering damages under the mediation

10
No. 2019AP1734

agreement because Moua frustrated Elite’s ability to perform its contractual
obligations.1

¶32 The circuit court made several factual findings in support of its
determination that Moua frustrated Elite’s performance. Those factual findings are
supported by evidence in the record and are not clearly erroneous. See WIS. STAT.
§ 805.17(2) (2017-18).

¶33 The circuit court first found that Moua “changed his mind” about “a
number of things” throughout the course of the project. The court relied on the
testimony of David Chmielewski, one of Elite’s subcontractors, who testified that
Moua repeatedly changed his mind about various aspects of Elite’s work. For
instance, Chmielewski testified that Moua picked out carpeting for the upper floor
of the home but later complained that he did not like the color. Chmielewski also
testified that Moua pulled up wood laminate flooring after it had been installed and
changed his mind about how he wanted the tile flooring laid in the kitchen.

¶34 The circuit court clearly found Chmielewski’s testimony credible, and
we will not upset that credibility finding on appeal. See State v. Peppertree Resort
Villas, Inc., 2002 WI App 207, ¶19, 257 Wis. 2d 421, 651 N.W.2d 345 (“When the
circuit court acts as the finder of fact, it is the ultimate arbiter of the credibility of
the witnesses and the weight to be given to each witness’s testimony.”). In addition,

1
The circuit court framed the issue as whether Moua’s actions frustrated Elite’s
performance of its contractual obligations. The parties have done the same on appeal. Neither the
parties nor the circuit court, however, have cited any legal authority recognizing the existence of a
doctrine of “frustration of performance” or setting forth the elements of such a doctrine.
Nevertheless, Moua does not argue on appeal that the court relied on an erroneous legal theory
when it determined that his frustration of Elite’s performance excused Elite’s failure to timely
complete its work. We will not abandon our neutrality to develop that argument on Moua’s behalf.
See Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d
148, 769 N.W.2d 82.

11
No. 2019AP1734

Schmidt similarly testified that Moua was “constantly asking for more and more
work” and that Moua continued making changes to the project after the parties
signed the mediation agreement. Both Schmidt’s testimony and Chmielewski’s
testimony support the court’s finding that Moua repeatedly changed his mind about
various aspects of Elite’s work.

¶35 The circuit court also found that Moua

tried to act as an expert, a lay expert, and wanted to really
impose his own will after having signed the agreement, and
then would fire [Elite], would fire the inspector, and then we
come to court and then he would come to agreements, but
then he wouldn’t want to live up to the agreements.

Again, there is ample evidence in the record to support this finding. Moua conceded
during the evidentiary hearing that he had attempted to fire the Department of
Housing and Urban Development inspector who had been assigned to the project.
In addition, the record shows that the mediation agreement required Moua to
“cooperate with Elite … and its efforts to make draws from the subject escrow
account.” Schmidt testified, however, that after the parties signed the mediation
agreement, Moua delayed paying the third draw, which in turn delayed Elite’s
performance of its remaining work. Schmidt’s testimony supports the court’s
finding that Moua failed to comply with his obligations under the mediation
agreement by refusing to cooperate with Elite in its efforts to obtain the third draw.

¶36 Schmidt also asserted that he asked Moua to agree to a punch list after
the parties signed the mediation agreement because Moua continually changed his
mind about various aspects of the project. Schmidt further testified that Moua
delayed approving the punch list. Although the mediation agreement did not
expressly require Moua to approve a punch list, Moua himself acknowledges that
his attorney approved the punch list on October 12, 2018, albeit without Moua’s

12
No. 2019AP1734

permission. This evidence further supports a finding that Moua failed to timely
cooperate with Elite and thus failed to comply with the spirit of the parties’
mediation agreement.

¶37 Finally, the circuit court found that on the evening of October 11,
2018, Moua and his roommate “[took] the cabinets into the garage, and then the day
of the project they indicate that they’re not available, even though they’re sitting in
the garage and he can get them and the people are there to do it.” Once again, the
record contains evidence that supports this finding. Moua conceded that the
cabinets were moved into the garage before Elite arrived at the property on
October 12. Schmidt testified that when he asked Moua where the cabinets were,
Moua told him they were “not here” and had been “moved off site.” Chmielewski
similarly testified that when Schmidt inquired about the location of the cabinets,
Moua “said they were not around, he said they were off site, we couldn’t get to
them. He never once said they were in the garage.” Based on this testimony, the
court could readily find that Moua moved the cabinets into the garage and then told
Elite they were not available for installation on October 12 in order to prevent Elite
from completing its work.

¶38 Moua attacks the circuit court’s factual findings—particularly its
finding regarding the cabinets—by citing evidence in the record that may have
supported contrary findings. In so doing, however, Moua ignores our standard of
review. Under the clearly erroneous standard, we will affirm the circuit court’s
findings of fact as long as there is evidence in the record that would permit a
reasonable person to make the same findings, even if the record also contains
evidence that would support contrary findings. Reusch v. Roob, 2000 WI App 76,
¶8, 234 Wis. 2d 270, 610 N.W.2d 168. Here, as explained above, the record

13
No. 2019AP1734

contains evidence that would permit a reasonable person to make the same factual
findings as the circuit court. As such, those findings are not clearly erroneous.

¶39 In summary, the circuit court found that Moua repeatedly changed his
mind regarding the work to be performed, failed to cooperate with Elite and live up
to his obligations under the parties’ agreements, and failed to tell Elite that the
cabinets were available for installation on October 12, 2018. These findings—
which are not clearly erroneous—support the court’s conclusion that Moua’s actions
frustrated Elite’s ability to perform its contractual obligations by the October 12
deadline in the mediation agreement. Thus, even if time was of the essence with
respect to that deadline, the court properly concluded that Moua’s actions excused
Elite’s failure to complete its work by October 12. We therefore affirm the court’s
determination that Elite’s failure to timely complete the work did not prevent it from
recovering damages under the mediation agreement.

III. Mitigation of damages

¶40 Moua next argues that even if his actions frustrated Elite’s ability to
timely complete its work, the circuit court should have concluded that Elite was not
entitled to recover the amount due under the mediation agreement because it failed
to mitigate its damages.2 Specifically, Moua argues that Elite “could have avoided
all loss by negotiating a new punch list and/or simply returning to the jobsite to
finish the work.”

¶41 “An injured party has a duty to mitigate damages, that is, to use
reasonable means under the circumstances to avoid or minimize the damages.”

2
As Moua notes, the circuit court did not expressly rule on his argument that Elite failed
to mitigate its damages. The court implicitly rejected that argument, however, by awarding Elite
the damages it sought under the mediation agreement.

14
No. 2019AP1734

Kuhlman, Inc. v. G. Heileman Brewing Co., 83 Wis. 2d 749, 752, 266 N.W.2d 382
(1978). Stated differently, “[a]n injured party cannot recover any item of damage
which could have been avoided.” Id. Critically, however, an injured party is only
required to do what is reasonable to mitigate its damages. Langreck v. Wisconsin
Laws. Mut. Ins. Co., 226 Wis. 2d 520, 524, 594 N.W.2d 818 (Ct. App. 1999). “If
the effort, risk, sacrifice or expense which the injured person must incur to avoid or
minimize the loss or injury is such that a reasonable person under the circumstances
might decline to incur it, the injured party’s failure to act will not bar recovery of
full damages.” Kuhlman, 83 Wis. 2d at 752. The delinquent party has the burden
to show that the injured party could have mitigated its damages. Id.

¶42 Here, Moua has failed to establish that Elite did not use “reasonable
means” to avoid or minimize its damages. See id. Moua argues that Elite could
have minimized its damages by “negotiating a new punch list” after the October 12,
2018 deadline in the mediation agreement elapsed. Schmidt testified, however, that
after that deadline elapsed and the circuit court ordered the parties to attempt to
negotiate a new punch list, Moua insisted on adding items to the punch list “that
were already taken off during our Mediation Agreement.” Schmidt further
explained that Moua “wanted more work,” which Schmidt was unwilling to do for
the same price. Based on Schmidt’s testimony, the court was entitled to conclude
that Elite’s refusal to agree to the new punch list proposed by Moua was not
unreasonable under the circumstances.

¶43 Moua also asserts that after the October 12, 2018 deadline elapsed,
Elite should have simply returned to the job site to finish its work. Moua contends
Elite “can hardly argue that it would not have been welcome,” as Moua “requested
… additional time for reconciliation at the December 14, 2018 hearing.”

15
No. 2019AP1734

¶44 Be that as it may, Moua has failed to show that Elite’s refusal to return
to the job site to complete its work was unreasonable under the circumstances.
Again, the parties were unable to agree on a punch list after the October 12 deadline
in the mediation agreement elapsed. As noted above, Schmidt was unwilling to
return to Moua’s residence without a punch list because Moua had repeatedly
changed his mind about the work he wanted Elite to perform. In addition, the circuit
court found that Moua “would come to agreements, but then he wouldn’t want to
live up to the agreements.” Furthermore, we have already upheld the court’s
determination that Moua intentionally frustrated Elite’s performance of its
contractual obligations. On these facts, it was not unreasonable for Elite to conclude
that its returning to the job site would only have led to further conflict between the
parties, rather than a resolution of their disagreements.

¶45 Moua also argues that Elite failed to mitigate its damages “by refusing
to sign the $1,350.00 fourth draw for [its] October 12, 2018 work.” Again, however,
given the contentious history between the parties, it was not unreasonable for Elite
to refuse the fourth draw and instead pursue its motion to enforce the parties’
mediation agreement.

¶46 Ultimately, for the reasons explained above, we conclude the circuit
court properly rejected Moua’s mitigation argument and implicitly concluded that
Elite’s refusal to take the additional actions urged by Moua was reasonable under
the circumstances. As such, we reject Moua’s argument that Elite failed to mitigate
its damages. We therefore affirm the circuit court’s award of $8,685 in damages to
Elite under the mediation agreement.

16
No. 2019AP1734

IV. Award of attorney fees incurred on appeal

¶47 In its respondent’s brief on appeal, Elite argues that if we affirm the
circuit court’s decision, we should remand for the court “to determine additional
attorney’s fees stemming from this appeal to be added to the existing Judgment.”
We agree that Elite is entitled to the additional attorney fees it incurred in this
appeal. As discussed above, the mediation agreement incorporated the attorney fee
provision from the construction contract, which provided that if litigation became
necessary for Elite to enforce its contractual rights, Moua would be obligated to pay
Elite’s attorney fees. We have already determined that, pursuant to that provision,
the circuit court properly awarded Elite the attorney fees it incurred below. Elite is
the prevailing party in this appeal, and the attorney fees it incurred on appeal were
necessary for it to enforce its contractual rights. The mediation agreement therefore
entitles Elite to recover its appellate attorney fees.

¶48 In addition, we observe that Elite made a specific request for appellate
attorney fees in its respondent’s brief, and Moua did not respond to that request in
his reply brief. Given Moua’s failure to respond to Elite’s argument, we deem him
to have conceded that if we affirm the circuit court’s decision, Elite is entitled to
recover its appellate attorney fees. See Charolais Breeding Ranches, Ltd. v. FPC
Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted
arguments are deemed conceded). We therefore remand this case to the circuit court
with directions to determine the amount of additional attorney fees that Elite is
entitled to recover and to amend the existing judgment to include that amount.

17
No. 2019AP1734

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. (2017-18).

18