Mark Kolodzinski v. Carlos Albelo

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.
July 3, 2024
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. 2023AP168 Cir. Ct. No. 2020CV1046

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

MARK KOLODZINSKI AND SONDA KOLODZINSKI,

PLAINTIFFS-RESPONDENTS,

V.

CARLOS ALBELO AND TAMMY ALBELO,

DEFENDANTS-APPELLANTS.

APPEAL from a judgment of the circuit court for Racine County:
DAVID W. PAULSON, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Lazar, 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. 2023AP168

¶1 PER CURIAM. Carlos and Tammy Albelo appeal from a judgment
entered on jury verdict in favor of Mark and Sonda Kolodzinski. The Albelos
argue that they have newly discovered evidence that would probably change the
result at trial. The Albelos also argue that the evidence was insufficient to support
the jury’s damages awards. We reject both arguments and affirm.

BACKGROUND

¶2 The Kolodzinskis sued the Albelos after discovering water
infiltration in the basement of a home that they purchased from the Albelos. The
Albelos lived in the home for fourteen years prior to the sale in June 2019 but did
not disclose any defects involving water intrusion in the basement. On September
13, 2019, the Kolodzinskis determined that water was entering the basement
through windows on the east, north and south. The Kolodzinskis hired John
Grotzinger from Driven Construction Services to evaluate the cause of the water
intrusion and to make repairs. Grotzinger’s initial set of repairs cost $15,425 but
did not fix the water problems. Grotzinger estimated that a complete excavation
and waterproofing would cost $49,500.

¶3 The Kolodzinskis filed a complaint against the Albelos on May 21,
2020, alleging breach of contract, unfair practices in violation of WIS. STAT.
§ 100.18 (2017-18), intentional misrepresentation, and misrepresentation in
violation of WIS. STAT. §§ 895.446 and 943.20(1)(d) (2017-18). At trial, the
Kolodzinskis presented evidence that Carlos Albelo served as the general
contractor for the home’s construction and had personally constructed the
basement foundation. A neighbor of the Albelos testified that the Albelos were
aware of previous water problems with the basement.

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¶4 Grotzinger provided expert testimony that the water intrusion was a
result of bad flashing and shoddy workmanship, including missing tarring, missing
mortar, joints that were not filled, and a lack of clear stone around the foundation.
A second expert for the Kolodzinskis, James Jendusa, testified that there were
indications of high groundwater on the property and that the grading of the
property did not allow water to flow properly around the house. Jendusa further
testified that the water intrusion was a result of inadequate damp proofing,
including rigid insulation boards and gaps in the foundation. Jendusa also testified
that he observed evidence of caulking in the gaps, which indicated prior issues
with water seepage. In addition, Jendusa observed spray foam insulation on the
block walls of the basement, which was an uncommon method of basement
insulation that could be used to prevent moisture from being detected.

¶5 The jury found in favor of the Kolodzinskis on all five claims, with
two jurors dissenting. The jury awarded $7,000 for past repairs and $26,000 for
future repairs. The jury declined to impose exemplary damages.

¶6 The Albelos filed a postverdict motion, arguing that they had newly
discovered evidence that warranted a new trial under WIS. STAT. § 805.15(3)
(2019-20)1 and that they were entitled to a new trial under § 805.15(1) because the
evidence at trial was insufficient to support the jury’s damages award. The circuit
court denied the Albelos’ motion during the motion hearing and ordered that
judgment be entered on the jury verdict, plus attorney’s fees and costs. On

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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December 15, 2022, judgment was entered in the amount of $111,825.12. The
Albelos now appeal.

DISCUSSION

1. Newly Discovered Evidence

¶7 The Albelos contend that the circuit court erred in denying their
motion for a new trial based on newly discovered evidence. Specifically, the
Albelos learned after trial that Rion Waterproofing, LLC had performed
excavation work on the egress window on the south wall of the basement prior to
the water intrusion event in September 2019. The Kolodzinskis failed to disclose
Rion Waterproofing’s work during discovery, even though this information was
responsive to the Albelos’ interrogatories, requests for production, and deposition
questions.

¶8 Under WIS. STAT. § 805.15, a new trial may be ordered based on
newly discovered evidence if the court makes four findings:

(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.

Sec. 805.15(3). All four elements must be satisfied in order for the court to grant
the motion for a new trial. See Wenzel v. Wenzel, 2017 WI App 75, ¶17, 378
Wis. 2d 670, 904 N.W.2d 384. “The burden of establishing these elements lies

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with the party seeking relief.” Kocinski v. Home Ins. Co., 147 Wis. 2d 728, 743,
433 N.W.2d 654 (Ct. App. 1988).

¶9 The circuit court found that elements (a) and (b) were satisfied.
Regarding element (c), the court explained that the evidence “could be material if
there’s a connection between the area of the work … and … an area of the water
intrusion into the basement.” Based on the fact that neither the south window nor
the area near it was “the focal point” of any expert testimony regarding the cause
of the water intrusion, the court determined that the evidence was not material.

¶10 Regarding element (d), the court concluded that the new evidence
would not change the result. The court explained that the reasons for the water
intrusion that the experts had identified—including the lack of damp proofing,
grading issues, and high water—were “not germane to the south egress window.”
Moreover, the evidence established that there was seepage on the north, south, and
east walls. The court determined that there was no basis for concluding that the
south egress window caused the water issues experienced throughout the
basement.

¶11 New trial motions that are based on newly discovered evidence “are
not received favorably and are entertained with great caution.” Erickson v.
Clifton, 265 Wis. 236, 240, 61 N.W.2d 329 (1953). We review the circuit court’s
decision to deny a new trial for erroneous exercise of discretion. See Brown v.
Mosser Lee Co., 164 Wis. 2d 612, 616-17, 476 N.W.2d 294 (Ct. App. 1991). A
discretionary decision involves “a process of reasoning which depends on facts
that are in the record or are reasonably derived by inference from the record and
yields a conclusion based on logic and founded on proper legal standards.” State
ex rel. Cynthia M.S. v. Michael F.C., 181 Wis. 2d 618, 624, 511 N.W.2d 868

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(1994). “Where the court has undertaken ‘a reasonable inquiry and examination
of the facts as the basis of its decision’ and has made a ‘reasoned application of the
appropriate legal standard to the relevant facts in the case,’ it has properly
exercised its discretion.” Brown, 164 Wis. 2d at 617. Reversal is not warranted
“unless it is manifest that the discretion has been improperly exercised.”
Erickson, 265 Wis. at 240.

¶12 The Albelos make three sets of arguments that the circuit court
erroneously exercised its discretion in denying their motion for a new trial under
WIS. STAT. § 805.15(3). First, the Albelos contend that the court misconstrued the
record when it stated that it did “not recall any testimony that the windows
themselves were defective and that the windows were leaking somehow through
the glass or through caulking.” The Albelos argue that the court’s recollection is
flawed, based on Grotzinger’s testimony regarding his observations while
repairing a collapsed window well.

¶13 In the portion of the trial transcript cited by the Albelos, Grotzinger
testified that the reason a particular window well failed was “because there was
just dirt back -- you know, it should have been a clear stone or something with a
lot less ground pressure to it.” The cited testimony does not establish that the
windows themselves were defective or that the windows were leaking through the
glass or caulking, so this testimony does not give us any basis for questioning the
accuracy of the court’s recollection. Moreover, the Albelos have not directed us to
anything in the record that would indicate that Grotzinger was testifying about the
south egress window. Instead, they direct us to Grotzinger’s report, which
indicates that Grotzinger observed problems with more than one window. For
example, Grotzinger’s report states that he observed “un flashed windows that
[were] allowing water to pour in,” and that the “egress wells were poorly installed

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and caving in from the dirt backfill instead of clear stone like the manufacturer and
uniform dwelling code require.” The record therefore establishes that there were
problems with multiple windows, which supports the circuit court’s determination
that the new evidence regarding Rion Waterproofing’s work on a single window
would not have changed the result.

¶14 The Albelos also point to inconsistencies in the testimony about
whether there were problems with the grading of the property. John Rocco, who
inspected the property prior to Rion Waterproofing’s work, testified that he did not
see any grading issues. In contrast, the Albelos argue that Grotzinger identified
issues with the grading on the south side of the property after Rion
Waterproofing’s work. The Albelos contend that “[i]t is pertinent to know
whether the activities of Rion Waterproofing … changed the pitch in this area.”

¶15 We have reviewed the portion of Grotzinger’s testimony cited by the
Albelos, and it does not indicate whether Grotzinger was referring to the grading
on the south side of the property. Jendusa’s report, however, referred to poor
grading along the east wall of the home. We therefore see no basis for the
Albelos’ speculation that Rion Waterproofing’s work on the south egress window
might be pertinent to the grading problems identified by the experts. Unsupported
speculation that Rion Waterproof might have pertinent information is not
sufficient to satisfy the Albelos’ burden to establish that “[t]he new evidence
would probably change the result.” WIS. STAT. § 805.15(3)(d).

¶16 The Albelos’ second argument is that the circuit court did not
consider the effect of the newly discovered evidence on the Kolodzinskis’
credibility. Specifically, the Kolodzinskis failed to disclose Rion Waterproofing’s
involvement during discovery, even though they were asked to identify anyone

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who performed post-sale changes to the home and also failed to produce Rion
Waterproofing’s bid and invoice in response to a request for production.
Moreover, Sonda Kolodzinski testified in deposition that the only work performed
before the water intrusion event in September 2019 was a chimney cleaning.2
Finally, although both Kolodzinskis signed the discovery responses, Sonda
Kolodzinski later signed an affidavit stating that she prepared the interrogatory
responses.

¶17 Based on these inaccurate or incomplete discovery responses, the
Albelos argue that they could have used the newly discovered evidence to
convince the jury that neither of the Kolodzinskis was credible, and that this
potential impeachment evidence constitutes grounds for new trial. See State v.
Plude, 2008 WI 58, ¶47, 310 Wis. 2d 28, 750 N.W.2d 42 (“newly discovered
evidence impeaching in character might be produced so strong as to constitute
ground for a new trial; as for example where it is shown that the verdict is based
on perjured evidence”) (quoting Birdsall v. Fraenzel, 154 Wis. 48, 52, 142 N.W.
274 (1913) (emphasis in original)).

¶18 The Kolodzinskis characterize their failure to disclose Rion
Waterproofing as a minor mistake, which arose from Sonda Kolodzinski’s
assumption that Grotzinger had performed all of the window work. The
Kolodzinskis also point to evidence that the Albelos knew that the south window
well needed repair at the time of the sale. We agree with the Kolodzinskis that the

2
The Albelos also contend that Mark Kolodzinski “made no mention of” Rion
Waterproofing’s work during his deposition. The cited pages of the deposition transcript contain
confusing questions and insufficient follow-up on the answers provided. We see no basis for
concluding that Mark Kolodzinski intentionally withheld information about Rion Waterproofing
during his deposition.

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nondisclosure of Rion Waterproofing’s involvement does not rise to the level of
impeaching evidence that would establish that the verdict is based on perjury. See
Plude, 310 Wis. 2d 28, ¶47.

¶19 Our conclusion is supported by the fact that there was ample
evidence from other witnesses that the Albelos knew or should have known about
the defects but failed to disclose them. In particular, the Albelos’ neighbor
testified to several key facts that supported the jury’s verdict, including her
recollection that Carlos performed general contracting work for the property; that
the Albelos were experiencing water issues that delayed the completion of their
basement; that large amounts of water regularly flowed from the Albelos’ property
after the construction of the basement; and that the Albelos made two or three
different attempts to regrade the property in order to redirect the flow of the water
away from the property.

¶20 In addition to this testimony from the Albelos’ neighbor, Jendusa
testified that he observed caulking in the joints of concrete blocks, which indicated
prior issues with water seepage. Jendusa also observed spray foam insulation,
which he described as an uncommon method of insulating a basement and
possibly an effort to conceal moisture problems. The jury also heard that all of the
Albelos’ windows had been opened for the home inspection, despite freezing
temperatures. Rocco testified that the opened windows struck him as “unusual”
and may possibly have been an attempt to mask a musty smell. Given the range of
evidence that the Albelos were aware of water problems in the basement and tried
to conceal them, we cannot conclude that using the newly discovered evidence to
try to impeach the Kolodzinskis “would probably change the result.” WIS. STAT.
§ 805.15(3)(d).

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¶21 The Albelos’ final argument for a new trial based on newly
discovered evidence is that the experts did not have the opportunity to consider
whether Rion Waterproofing may have played a role in causing the September
2019 water intrusion. The Albelos focus on Sonda Kolodzinski’s deposition
testimony that she noticed the sump pump running frequently shortly after the
Kolodzinskis moved in, together with Grotzinger’s testimony that he found a loose
connection in a drainage pipe on the property that may have caused the sump
pump to run continuously. The Albelos argue that they should have had the
opportunity to ask Grotzinger whether Rion Waterproofing’s work could have
caused these problems.

¶22 Once again, the portions of Grotzinger’s testimony cited by the
Albelos do not address whether the drainage pipe was on the south side of the
property, so we cannot evaluate whether the Albelos’ speculation has any basis in
the record. At any rate, the possibility that Rion Waterproofing may have
loosened a pipe is insignificant in view of all of the other issues identified by
Grotzinger and Jendusa, together with the evidence that the Albelos had
experienced water issues in the basement prior to the sale of the property.

¶23 We therefore conclude that the circuit court did not erroneously
exercise its discretion in determining that the Albelos did not satisfy their burden
of establishing that the newly discovered evidence “would probably change the
result.” WIS. STAT. § 805.15(3)(d). Because the failure of this element is
determinative, see Wenzel, 378 Wis. 2d 670, ¶17, we need not address the parties’
arguments regarding the remaining elements of § 805.15(3).

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2. Sufficiency of the evidence

¶24 The Albelos’ second ground for seeking a new trial is that the
evidence was insufficient to support the jury’s damage award. The jury awarded
the Kolodzinskis $7,000 for past repairs and $26,000 for future repairs. Because
there was no evidence to support these specific dollar amounts, the Albelos moved
for a new trial on the ground that “the verdict is contrary to law or to the weight of
evidence, or because of excessive or inadequate damages.” WIS. STAT.
§ 805.15(1). The circuit court rejected this argument, explaining that the jury’s
award was “quite conservative” but nonetheless a proper award in view of the
evidence presented.

¶25 We review the circuit court’s decision to sustain the jury verdict for
erroneous exercise of discretion. See Ballard v. Lumbermens Mut. Cas. Co., 33
Wis. 2d 601, 606, 148 N.W.2d 65 (1967). Our supreme court has explained that
because its “determination is relatively contemporaneous with the trial and the
verdict of the jury … [the circuit court] is far better able than we are to analyze the
evidence and to make an appraisal of the reasonableness of damages.” Id.

¶26 The Albelos argue that the only evidence presented regarding past
repairs was Sonda Kolodzinski’s testimony that the Kolodzinskis paid $15,425 for
Grotzinger’s initial repairs, and that these repairs covered approximately one-third
of the basement. Regarding future repairs, Sonda Kolodzinski and Jendusa both
testified to Grotzinger’s estimate that future repairs would total $49,500. Jendusa
also listed all of the work that Grotzinger was planning to perform and testified
that it was consistent with his recommendations, with the possible exception of
some of the proposed grading work. The Albelos argue that this evidence did not
satisfy the Kolodzinskis’ burden to introduce sufficient data from which the jury

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can properly estimate the damages amount. See Krcmar v. Wisconsin River
Power Co., 270 Wis. 640, 646, 72 N.W.2d 328 (1955) (“Damages should be
proved by statements of facts rather than by the mere conclusions of witnesses.”).

¶27 The circuit court rejected the Albelos’ argument, explaining that a
jury’s damages award will stand unless there is no credible evidence to support it.
See Ballard, 33 Wis. 2d at 607. The court determined that the Kolodzinskis
presented sufficient evidence to establish the dollar amount of the past and future
repairs recommended by Grotzinger. Regarding the differences between the
amounts that the Kolodzinskis established and the jury’s ultimate damages awards,
the court explained that there were many reasons why the jury might have rejected
aspects of the past and future repairs as unnecessary.

¶28 The Albelos argue that the circuit court’s explanation for the jury’s
lower award is erroneous because “there was nothing to pick and choose from.”
This contention is baseless because the limited testimony cited by the Albelos
identifies the steps that Grotzinger had taken, as well as the steps that he planned
to take in order to fix the water intrusion issues. As the circuit court explained, the
jury may have used its “common sense and every day experience” to conclude that
some of these steps were not necessary to fix the water intrusion problems.

¶29 The Albelos further argue that the evidence was not sufficient for the
jury to determine damages with reasonable certainty, as it was instructed to do.
Accordingly, they contend that the verdict was perverse. See Redepenning v.
Dore, 56 Wis. 2d 129, 134, 201 N.W.2d 580 (1972) (“A verdict is perverse when
the jury clearly refuses to follow the direction or instruction of the [circuit] court
upon a point of law, or where the verdict reflects highly emotional, inflammatory

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or immaterial considerations, or an obvious prejudgment with no attempt to be
fair.”).

¶30 “The amount of damages awarded is a matter resting largely in the
jury’s discretion.” See Weber v. Chicago & Nw. Transp. Co., 191 Wis. 2d 626,
635, 530 N.W.2d 25 (Ct. App. 1995). The Albelos have not cited any authority
that would cast doubt on a jury’s decision to award a smaller amount of damages
than the plaintiff requested at trial. To the contrary, we have previously held that
“a jury certainly may conclude that damages are not as great as stated by an expert
witness.” Id. We therefore see no basis for concluding that a total damages award
of $33,000 for past and future repairs could be deemed perverse in the face of
evidence that could support an award of more than $64,000. Instead, we agree
with the circuit court that the jury exercised its common sense and every day
experience in reaching its damages award, as it was instructed to do.

CONCLUSION

¶31 For the foregoing reasons, we conclude that the circuit court did not
erroneously exercise its discretion in denying the Albelos’ motion for a new trial
based on newly discovered evidence or based on the amount of the jury’s damages
award. We therefore affirm the circuit court’s judgment.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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