M & D Truck & Equipment Sales LLC v. Daniel Amarei

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.
March 26, 2026
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. 2024AP2083 Cir. Ct. No. 2023CV220

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

M & D TRUCK & EQUIPMENT SALES LLC,

PLAINTIFF-RESPONDENT-CROSS-APPELLANT,

V.

DANIEL AMAREI,

DEFENDANT-APPELLANT-CROSS-RESPONDENT.

APPEAL from an order of the circuit court for Green County:
FAUN MARIE PHILLIPSON, Judge. Affirmed in part, reversed in part and
cause remanded for further proceedings.

Before Graham, P.J., Blanchard, and Kloppenburg, 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. 2024AP2083

¶1 PER CURIAM. Daniel Amarei appeals a money judgment that the
circuit court entered in favor of M & D Truck and Equipment Sales LLC
(“M&D”) following a bench trial. Specifically, the court determined that Amarei
is liable for $1,498 in contract damages and $11,983.32 in unjust enrichment
damages resulting from his lease of construction equipment over a period of time
that exceeded a month. On appeal, Amarei argues that the court misinterpreted the
weekend lease contract that he signed with M&D, and that he is not liable for
some of the damages that are included in the judgment. He also argues that the
court erred when it denied his request for a mistrial. We reject Amarei’s
arguments and affirm.

¶2 M&D cross-appeals the judgment. It argues that the circuit court
erred when it determined that Amarei is not required to pay prejudgment interest
or M&D’s reasonable collection costs, including attorney fees, under the terms of
the weekend lease contract. We conclude that M&D is correct, but only in part,
and we reverse and remand to the circuit court for further proceedings consistent
with this opinion.

BACKGROUND

¶3 The following facts are derived from the testimony and exhibits
introduced during a three-day bench trial, and from the circuit court’s written
decision, which includes findings of fact and conclusions of law.

¶4 M&D is a limited liability company located in Green County,
Wisconsin, and is in the business of leasing heavy construction equipment. M&D
leases equipment to customers by the day, the week, or the month, and its website
lists the daily, weekly, and monthly rental rates for each type of equipment that it

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leases. M&D also sometimes leases equipment to “do it yourself” customers over
a weekend for a reduced rate.

¶5 Amarei owns a parcel of land in Green County. He is an
experienced businessperson who holds degrees in business and economics. He is
“very familiar” with the type of construction equipment that M&D leases, having
executed “thousands of lease agreements” for similar equipment in the past.

¶6 The events leading to this appeal began in February 2023, when
Amarei undertook to construct ATV trails across his Green County property.
Amarei visited the M&D website to review its rates for the construction equipment
he would need for the project, and he then spoke with M&D’s rental coordinator,
Richard Wyttenbach, by phone. During the call, Amarei and Wyttenbach
discussed an arrangement by which Amarei would lease the equipment he needed
over the weekend of Saturday, February 25, and Sunday, February 26.

¶7 Wyttenbach sent Amarei a written contract to that effect, which was
memorialized on a standard form lease agreement that M&D uses with all of its
customers. The contract provided that Amarei would be leasing a skid loader with
a grapple attachment.1 The contract further provided that the weekend rate for the
skid loader was $1,388, and it included a note stating that the “Weekend Rate
Allows 12 hours on [the] meter” and that “[o]verages” would be “billed at
$116/hour.” Although there was no explicit end date specified in the contract, a
section entitled “Estimated Date Out” stated that the lease was for “FRI 2/24 for

1
Skid loaders are compact four-wheeled engine-powered machines that are equipped
with load arms and can be used for tasks such as digging, grading, and moving materials.

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No. 2024AP2083

W/E.” Going forward, we refer to this written contract as the “Weekend Lease
Agreement” or the “Agreement.”

¶8 The Weekend Lease Agreement also contained a number of standard
terms and conditions, including terms related to the accrual of prejudgment
interest and collection costs, which we discuss in more detail as needed below.
Among the terms and conditions were a “rental charges” provision, which
provided that “[r]ental charges begin when the equipment leaves our yard and end
when it is returned,” and a “modifications” provision, which provided that “[n]o
alteration or modification of this Lease is valid unless in writing and signed by the
parties hereto.”

¶9 M&D and Amarei both signed the Weekend Lease Agreement, and
it is undisputed that this was the only written contract they entered into over the
course of their relationship. However, as discussed in greater detail below, some
of M&D’s equipment remained at Amarei’s property through the end of March,
and Amarei also requested delivery of additional equipment from M&D during
this time. For convenience, this opinion sometimes refers to February 25-26 as the
“initial weekend period” and to the time that equipment remained on Amarei’s
property after that weekend as the “post-weekend period.”

¶10 After the equipment was delivered to Amarei’s property, Amarei and
Wyttenbach had at least four discussions about lease terms that are pertinent to
this appeal. The first discussion occurred on February 27, the Monday following
the initial weekend period. That morning, Wyttenbach texted Amarei to check to
see if Amarei was “finished up” with the equipment; Amarei responded that he
was “not quite done.” In a phone call that followed, Amarei and Wyttenbach
agreed that Amarei would retain the skid loader and grapple attachment beyond

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the initial weekend period, but the parties disputed the terms of that arrangement at
trial. Wyttenbach testified that he told Amarei that there would be no charge for
that “Monday or Tuesday” and that the equipment “went back on rent on
Wednesday,” but Amarei testified that Wyttenbach “didn’t talk about [rental]
charges whatsoever.”

¶11 The second discussion occurred on March 14, when Amarei and
Wyttenbach arranged to “swap out” the skid loader that Amarei had in his
possession (the “first skid loader”) with a smaller skid loader that was available
(the “second skid loader”). The parties dispute who initiated the “swap out”
arrangement and the terms of that arrangement. Wyttenbach testified that he told
Amarei that M&D would begin charging rent for the second skid loader on
“Saturday the 18th of March,” but Amarei testified that Wyttenbach did not say
anything about rent. It is undisputed that M&D picked up the first skid loader on
March 14 and delivered the second skid loader to Amarei’s property that day.

¶12 The third discussion occurred on March 20. Amarei called to ask
M&D to drop off a pallet fork attachment, and M&D dropped off the attachment
that day.

¶13 The fourth discussion occurred on March 22. It is undisputed that
Amarei and Wyttenbach spoke by phone that morning, but the content of their
conversation is disputed. Amarei testified that he told Wyttenbach that the
equipment would be ready for pick up that day, but Wyttenbach testified that
Amarei did not make any such pick up request until March 30. M&D did not pick
up the remaining equipment (the grapple attachment, the second skid loader, and
the pallet fork attachment) from Amarei’s property until March 31.

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No. 2024AP2083

¶14 Additionally, Amarei also had several conversations with M&D’s
service technician, Ben Jansen, about the condition of M&D’s equipment during
the time that its equipment was at Amarei’s property. Jansen made at least two
service calls to the property, and we discuss the evidence about those service calls
as needed below.

¶15 In May 2023, M&D sent Amarei an invoice that sought payment of
$13,868.13. Specifically, M&D’s invoice sought payment of the “weekend rate”
set forth in the Weekend Lease Agreement for the initial weekend period, and
payment of its posted weekly rates for the equipment that Amarei possessed
during the post-weekend period from March 1 to March 30. The invoice also
reflected charges for delivery, fuel, and repair costs.

¶16 Amarei emailed to dispute the accuracy of the invoice, writing that
the charges “do not mirror the agreement we both signed.” Specifically, Amarei
stated, he understood the Weekend Lease Agreement to provide that he would be
billed the weekend rate specified in the agreement, not “on a per day or week
basis.” That is, Amarei took the position that, even though he retained equipment
far beyond a weekend, he should only be billed the weekend rate of $1,388, unless
he actually used the skid loader for more than 12 hours in total. In that case,
Amarei’s position was that he should be billed the “overage rate” provided in the
agreement: an additional $116 per hour for each hour of additional use. Amarei
wrote: “Did I not read the contract correctly? If not, would you kindly highl[ight]
the language where you switch from billing per hour and changing it to weeks?”

¶17 In its response, M&D wrote that the Weekend Lease Agreement was
just “for the weekend” and “the weekend rent was over on Sunday night.” M&D
explained that all of its contracts “are by time, with engine hour limits[,] … 8 per

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No. 2024AP2083

day, 12 per weekend, 40 per week,” and that M&D “never rent[s] by the hour.”
M&D further explained that the “overage” rate in the Agreement “only applied if
you put more than 12 hours on the unit during that weekend rental.” M&D took
the position that its posted weekly rates began to apply when Amarei retained the
equipment beyond the initial weekend period.

¶18 M&D eventually filed this action. It alleged that Amarei had failed
to pay M&D “the sums due under the terms of the rental agreements.” Amarei
denied liability and alleged that M&D did not “correctly state the amount owed.”

¶19 The case proceeded to a three-day bench trial, in which the central
dispute was over the scope of the Weekend Lease Agreement and the amount that
Amarei owes in damages. M&D took the position that Amarei is liable for the
total amount stated in its invoice, plus interest, attorney fees, and costs.
Specifically, M&D argued that Amarei is liable for contract damages for the initial
weekend period under the Weekend Lease Agreement. For the post-weekend
period, M&D argued, Amarei is liable for its posted rates—either because there
was an implied contract between the parties based on their words and conduct, or
based on a theory of unjust enrichment.

¶20 M&D offered the Weekend Lease Agreement into evidence, and
Wyttenbach testified about the various conversations he had with Amarei
following the initial weekend period. In addition, M&D called its service
technician, Jansen, to testify about the two service calls he made to Amarei’s
property. Among other things, Jansen testified that he was able to repair the issues
with the equipment on site and that he made sure that the equipment was
functioning properly before he left.

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No. 2024AP2083

¶21 Amarei represented himself, and he was the sole witness who
testified for the defense. Amarei testified that the Weekend Lease Agreement was
the “only contract” he signed, and his position was that the entire leasing
arrangement is covered by the weekend rate set forth in the Agreement. He took
the position that, although he arranged to retain M&D’s equipment beyond the
initial weekend period, this arrangement did not result in additional charges
because “[n]ot one time did [Wyttenbach] mention to me that, hey, if this stays on
your property, we’re gonna need to charge you for every day it’s on there.”

¶22 In addition to disputing the scope of the Weekend Lease Agreement,
Amarei made arguments about the condition of the equipment that M&D
provided. Specifically, he testified that M&D’s equipment was “defective”
throughout the entirety of the time he possessed it, and for that reason Amarei did
not receive the “full benefit” of possessing the equipment beyond the initial
weekend period. Amarei also argued that he was not liable for any charges after
March 22 based on his testimony that he had asked M&D to pick up the
equipment on that date.

¶23 On the final day of trial, Amarei asked the circuit court to declare a
mistrial after he found a post-it note in the binder of exhibits that had been used by
the trial witnesses. The court heard arguments about the request and, after a brief
recess during which it examined the note and exhibits binder, it denied the motion.
We provide additional background about Amarei’s mistrial motion and the court’s
decision as needed below.

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No. 2024AP2083

¶24 The circuit court entered a written order awarding M&D $13,481.32
in damages.2 Specifically, the court determined that the Weekend Lease
Agreement is a “valid contract” and that Amarei is liable under that contract, but
the court agreed with M&D that the Agreement established Amarei’s liability and
M&D’s contract damages for the initial “weekend period” only. With respect to
the post-weekend period, the court found that Amarei is liable based on a theory of
unjust enrichment, and that the most appropriate measure of unjust enrichment
damages is M&D’s posted weekly rates for the various pieces of equipment that
Amarei possessed in the post-weekend period. In reaching this conclusion, the
court rejected M&D’s argument that there were implied contracts between the
parties. The court reasoned that a mutual agreement (sometimes referred to as a
“meeting of the minds”) with respect to contract terms is required to form an
implied contract, and that “[h]ere, it is unclear whether the minds of M&D and
Mr. Amarei met on the same thing.”

¶25 Turning to M&D’s request for an award of prejudgment interest and
collection costs, including attorney fees, the circuit court denied the request. The
court explained that the request was based on written contract terms, but that here,
“much of this damage award arises from the legal theory of unjust enrichment, and
falls outside the four corners of the Weekend Lease Agreement.” Under these
circumstances, the court determined, each side is “responsible for the payments of
their own costs and fees.”

2
The damages awarded are slightly less than what was set forth in M&D’s invoice
because at trial M&D’s counsel stipulated to removing some charges in the invoice related to
repairs and delivery.

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No. 2024AP2083

¶26 The circuit court entered judgment, and this appeal and cross-appeal
followed.

DISCUSSION

¶27 In Amarei’s appeal, he challenges the circuit court’s damages award
and the court’s denial of his request for a mistrial. In M&D’s cross-appeal, it
challenges the portion of the judgment that denied its request for prejudgment
interest and collection costs. We address the three issues in that order.

I. Amarei’s Appeal of the Damages Award

¶28 Beginning with the damages award, Amarei argues that the primary
error that the circuit court made was to conclude that the Weekend Lease
Agreement—and the “weekend rate” it described—was no longer in effect after
Sunday, February 26. On the contrary, Amarei contends, the Agreement was in
effect throughout the entire period of time he possessed M&D’s equipment.
Therefore, he argues, his liability is limited to the “weekend rate” that is specified
in the Agreement, and the court erred when it determined that he is also liable for
M&D’s posted weekly rates during the post-weekend period based on a theory of
unjust enrichment.

¶29 We begin by resolving the threshold issue of the scope and duration
of the Weekend Lease Agreement. After determining that it was in effect for the
initial weekend and no longer, we consider Amarei’s various arguments against
his liability for the weekly rates during the post-weekend period.

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No. 2024AP2083

A. The Scope and Duration of the Weekend Lease Agreement

¶30 “The interpretation of a contract presents a question of law, which
we determine independently of the conclusions rendered by the circuit court ….”
See Tufail v. Midwest Hospitality, LLC, 2013 WI 62, ¶22, 348 Wis. 2d 631, 833
N.W.2d 586. Here, Amarei’s argument turns on the proper interpretation of the
Weekend Lease Agreement, and specifically its scope and duration.

¶31 Amarei first argues that the term of the Weekend Lease Agreement
is unambiguous. Specifically, he argues that the Agreement did not include any
“provision automatically terminating on [Monday,] February 27,” or providing
that the “‘weekend’ is strictly two days.” He contends that the circuit court in
effect created a “termination date” for the contract when there is no “evidence of
[such] mutual agreement” between the parties.

¶32 We disagree. Although the Weekend Lease Agreement did not
explicitly identify a termination date, its language cannot reasonably be
understood to mean anything other than that its term was limited to the weekend
that ended on Sunday, February 26. As noted, the “Estimated Date Out” section
of the Agreement stated “FRI 2/24 for W/E,” and the section specifying the “initial
term” of the rental stated “WKend.” Likewise, in the section about rates, the
Agreement referred to the rate as the “Weekend Rate.” “We presume the parties’
intent is evidenced by the words they choose[] if those words are unambiguous,”
Kernz v. J.L. French Corp., 2003 WI App 140, ¶9, 266 Wis. 2d 124, 667 N.W.2d
751, and here, the parties’ words all point to the Agreement being for the
“weekend.”

¶33 Beyond that, even if the Weekend Lease Agreement could be
considered ambiguous, the conversation that the parties had leading up to contract

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No. 2024AP2083

execution forecloses any argument that the Agreement was intended to apply
beyond the initial weekend period. See Tufail, 348 Wis. 2d 631, ¶27 (“If the
terms of the contract are ambiguous, evidence extrinsic to the contract itself may
be used to determine the parties’ intent.”). As noted, it is undisputed that
Wyttenbach and Amarei spoke over the phone to discuss the rental, and
Wyttenbach filled out M&D’s form agreement based on their conversation.
Wyttenbach testified that Amarei asked to rent the equipment for “that weekend”
and Wyttenbach memorialized that understanding in the draft contract, which
Amarei signed. For his part, Amarei testified that he was “very clear” with
Wyttenbach that he only had “two days” to use the equipment, and during cross-
examination, he admitted that the Agreement “was only meant for a weekend.”

¶34 Our conclusion is further supported by the parties’ actions after the
Weekend Lease Agreement was signed. See Board of Regents of Univ. of Wis.
Sys. v. Mussallem, 94 Wis. 2d 657, 671, 289 N.W.2d 801 (1980) (also relevant is
what occurred “before and after the signing of an agreement”). On the morning of
Monday, February 27, Wyttenbach texted Amarei to confirm that Amarei was
“finished up” with the equipment, and the parties had a phone call to discuss
Amarei keeping the equipment at his property. There would be no occasion for
Wyttenbach to confirm that Amarei was done with the equipment, and no need for
the parties to negotiate the circumstances of keeping the equipment, if the
Agreement already contemplated that Amarei could retain the equipment beyond
the weekend.

¶35 Amarei argues that this interpretation ignores “explicit contract
language.” Specifically, he points to the “rental charges” provision which, as
noted, states that “[r]ental charges begin when the equipment leaves our yard and
end when it is returned.” According to Amarei, this provision “contemplates [that]

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No. 2024AP2083

the parties’ arrangement continues so long as [he] retains possession” of the
equipment; thus, he contends, the weekend rate was in effect for the entire time he
retained possession.

¶36 This argument is not persuasive. Nothing in the “rental charges”
provision purports to modify the term of the Weekend Lease Agreement, nor does
it specify the rate of “rental charges” that a customer will be charged if the
customer retains equipment beyond that term. Rather, the provision simply means
that customers will be liable for rental charges until M&D’s equipment “is
returned.” In so doing, the provision memorializes the commonsense notion that a
customer who retains equipment beyond the term of the lease will be required to
pay additional rent for that additional time.

¶37 Indeed, if Amarei’s argument were correct—that he could extend the
term of the Weekend Lease Agreement simply by retaining the equipment in his
possession—that would run afoul of the provision in the Agreement that provides
that “[n]o alteration or modification of this Lease is valid unless in writing and
signed by the parties hereto.”

¶38 For all these reasons, we conclude that the Weekend Lease
Agreement was intended to cover the period of Saturday, February 25, to Sunday,
February 26, and no longer.

B. The Post-Weekend Period

¶39 Having concluded that the Weekend Lease Agreement governed the
rent that Amarei owed during the initial weekend period, we now consider
Amarei’s challenges to his liability during the post-weekend period.

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No. 2024AP2083

¶40 The post-weekend period spanned from Monday, February 27, until
the equipment was picked up on March 31, and it covered Amarei’s continued
lease of the first skid loader and grapple attachment, his lease of the second skid
loader (after the first skid loader was swapped out), and his lease of the pallet fork
attachment. As noted, for this period, M&D billed Amarei based on its posted
weekly rental rates for the different pieces of equipment. The circuit court found
that there was no contract in effect (written or otherwise) during this period, but it
determined that Amarei is liable for M&D’s posted weekly rates based on a theory
of unjust enrichment and awarded M&D $11,983.32 in damages for this period.

¶41 Amarei’s most prominent challenge to the award of unjust
enrichment damages is based on the argument that we rejected above. That is, he
takes the position that it was error to award damages for unjust enrichment
because, he contends, the Weekend Lease Agreement was in effect and covered
the entirety of the post-weekend period. See Mohns Inc. v. BMO Harris Bank
N.A., 2021 WI 8, ¶48, 395 Wis. 2d 421, 954 N.W.2d 339 (if the parties entered
into a valid and enforceable contract that covers certain conduct, unjust
enrichment does not apply). This argument fails based on our conclusion that the
Agreement was no longer in effect following the initial weekend period.

¶42 Amarei makes two additional challenges to the award of post-
weekend unjust enrichment damages, both of which would require us to credit his
version of disputed facts. He argues that M&D did not prove the elements of
unjust enrichment because its equipment was defective. He also argues that, even
if we are to conclude that the elements are satisfied, he does not owe as much in
damages as the circuit court awarded because he was done with the equipment as
of March 22. We address each argument in turn.

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No. 2024AP2083

1. Unjust Enrichment

¶43 Our review of the circuit court’s determination on an unjust
enrichment claim presents a mixed question of fact and law. Halverson v. River
Falls Youth Hockey Ass’n, 226 Wis. 2d 105, 115, 593 N.W.2d 895 (Ct. App.
1999). We will uphold the court’s factual findings unless they are clearly
erroneous, but “[t]he application of those facts to the legal standard for unjust
enrichment … presents a question of law we review de novo.” Id.

¶44 As applied here, the elements of unjust enrichment are that: M&D
“conferred” a “benefit” on Amarei; Amarei had “appreciation or knowledge … of
the benefit”; and Amarei accepted or retained the benefit “under circumstances
making it inequitable for [him] to retain the benefit without payment of its value.”
See Puttkammer v. Minth, 83 Wis. 2d 686, 689, 266 N.W.2d 361 (1978). After
considering the trial evidence, the circuit court found that Amarei told M&D that
“he was not finished with the equipment” several times throughout the post-
weekend period, that M&D allowed Amarei to continue to possess its equipment,
and that Amarei continued to use it for at least some of the time it remained on his
property. Under the circumstances, the court determined that it would be
inequitable for Amarei, who was an “experienced businessperson” and had dealt
with “numerous [leasing] contracts” in the past, “to retain the [equipment on his
property and use it] without payment of its value.” See Puttkammer, 83 Wis. 2d
at 689. Based on our review of the record, we conclude that the court’s factual
findings are not clearly erroneous and that the elements of an unjust enrichment
claim are satisfied.

¶45 Amarei argues that he did not derive or retain a benefit from M&D
because, he asserts, the equipment was defective. Amarei’s argument begins with

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No. 2024AP2083

the undisputed fact that the first skid loader was not working properly when it was
delivered on Friday, February 24. Although M&D sent its service technician,
Jansen, to fix the equipment that same day, Amarei asserts that Jansen did not
actually fix the problem until March 1, when Jansen returned to address what
Amarei characterizes as “lingering issues.” Due to these “persistent mechanical
defects,” Amarei argues, he was unable to “complete his project as planned during
the initial weekend rental period, undermining any claim of benefit.” We reject
this argument for at least two reasons.

¶46 First, Amarei’s assertion that the equipment was defective is
contrary to the circuit court’s findings of fact. The court heard testimony from
both Amarei and Jansen on this issue, and it was within the court’s discretion to
decide which testimony to credit. See Noll v. Dimiceli’s, Inc., 115 Wis. 2d 641,
644, 340 N.W.2d 575 (Ct. App. 1983) (“[W]here there is conflicting testimony,
the trial judge is the ultimate arbiter of the credibility of the witnesses.”). Here,
the court credited Jansen’s testimony that he fixed the issues with the first skid
loader on the Friday it was delivered and that the equipment was operating as it
should when Jansen left that day. The court also credited Jansen’s testimony that
he fixed a different set of issues on March 1, and that those issues were the result
of Amarei’s improper use of the skid loader. Amarei appears to be arguing that
the court should have credited his testimony instead, but again, it was within the
court’s discretion to determine “the weight to be given to each witness’s
testimony.” State v. Peppertree Resort Villas, Inc., 2002 WI App 207, ¶19, 257
Wis. 2d 421, 651 N.W.2d 345. The court did not erroneously exercise its
discretion by crediting the testimony from Jansen over the conflicting testimony
from Amarei.

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No. 2024AP2083

¶47 Second, even if we were to accept the premise that the equipment
was defective in some way, that premise would not necessarily lead to a
conclusion that Amarei did not benefit from retaining the equipment. As noted, it
is undisputed that Amarei was able to use the equipment to complete the work on
his property and that he chose to retain the equipment that he now contends was
defective. Accordingly, the record supports the circuit court’s determination that
M&D conferred a benefit upon Amarei.

2. Dispute About the Pick-Up Date

¶48 We now turn to Amarei’s arguments about the end date for the
unjust enrichment damages. As noted, the circuit court awarded unjust enrichment
damages through March 30. On appeal, Amarei argues that this was error for at
least three reasons and that he should not be liable for any damages after
March 22.

¶49 First, Amarei argues, he “explicitly” testified that he requested that
M&D pick up the equipment on March 22. He asserts that his trial testimony
about the pick-up request was “unchallenged” and argues that “the circuit court’s
refusal to credit it [was] … clearly erroneous.”

¶50 Contrary to Amarei’s argument, his testimony in this regard did not
go unchallenged at trial. As mentioned, Wyttenbach also provided testimony
about the circumstances surrounding the pick-up request, which the circuit court
appears to have credited. Specifically, when asked whether he knew that
March 22 was the final day that Amarei needed the equipment, Wyttenbach
testified, “I did not ever know that,” and when asked when Amarei first asked for
the equipment to be picked up, Wyttenbach testified, “I would say the 30th.” In
addition to that testimony, the court relied on Amarei’s text messages to M&D,

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No. 2024AP2083

which the court interpreted to show that, as late as 12:22 p.m. on March 22,
Amarei was still using the equipment and was communicating with Jansen about
how to connect certain equipment. The court found that there were “no text
messages” from Amarei at any point during that day “indicating” that he was done
with the equipment or that it “should be picked up.” The court’s findings about
the circumstances of the pick-up request were not against the “great weight and
clear preponderance of the evidence.” See Royster-Clark, Inc. v. Olsen’s Mill,
Inc., 2006 WI 46, ¶12, 290 Wis. 2d 264, 714 N.W.2d 530.

¶51 Second, Amarei argues that that the circuit court relied on
“questionable” evidence in making its findings about the pick-up request.
According to Amarei, the “questionable” evidence was a calendar containing
Wyttenbach’s handwritten notes. As we understand it, Wyttenbach did not write
the notes contemporaneously with the events that transpired, but wrote them
instead in the months that followed, during a time in which Amarei was disputing
M&D’s invoice and Wyttenbach was attempting to explain what had occurred to
M&D’s owner.

¶52 Amarei contends that the circuit court erroneously credited
Wyttenbach’s “self-serving” calendar over his “direct sworn testimony.” This
argument is unavailing because the calendar did not contain any information about
the timing of any pick-up request. Additionally, nothing in the record supports
Amarei’s assertion that the court relied on the calendar to make factual findings on
that topic; indeed, the court did not mention the calendar in its written decision.3

3
To the extent that Amarei may intend to argue that the circuit court relied on the
calendar to make other findings and determinations beyond those related to pick-up, he does not
point us to anything in the record to support any such conclusion that the court did so.

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No. 2024AP2083

¶53 Third, Amarei asserts that the circuit court’s determination about
when the equipment was ultimately picked up from his property was based on
“secondhand accounts.” Specifically, Amarei argues that M&D’s driver, “Doug,”
is the only person who would have had “firsthand knowledge” of when pick-up
occurred, and that the court should have drawn a negative inference against M&D
because it “declined to present Doug as a witness.”

¶54 There are at least two problems with this argument. First, if Amarei
wanted the circuit court to draw a negative inference based on M&D’s failure to
present Doug’s testimony, it was incumbent on Amarei to ask the court to draw
such an inference during the trial proceedings. He did not make that request
during that time, and it is too late to make it for the first time on appeal. Second, it
is not at all clear that it would have been appropriate for the court to draw a
negative inference based on Doug’s absence from the trial as a witness, even if
Amarei had requested it. Our supreme court has explained that a factfinder should
not draw a negative inference based on the absence of a witness whose testimony
“would be merely cumulative” to other evidence that is introduced at a trial.
Kochanski v. Speedway SuperAmerica, LLC, 2014 WI 72, ¶17, 356 Wis. 2d 1,
850 N.W.2d 160. Here, Doug’s testimony about the pick-up date would have been
cumulative to testimony from Jansen, who testified that he was present when the
equipment was ultimately retrieved from Amarei’s property.

¶55 Accordingly, Amarei has not persuaded us that the circuit court erred
when it determined that he is liable for unjust enrichment damages through
March 30.

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No. 2024AP2083

II. Amarei’s Challenge to the Denial of His Mistrial Motion

¶56 Amarei also argues that the circuit court erred in denying his request
for a mistrial. For reasons we now explain, we disagree.

¶57 The decision to grant a mistrial is within a circuit court’s discretion.
Jensen v. McPherson, 2004 WI App 145, ¶29, 275 Wis. 2d 604, 685 N.W.2d 603.
The court must determine, “in light of the whole proceeding,” whether the claimed
error was sufficiently prejudicial that a mistrial is necessary to protect a party’s
rights. See Oseman v. State, 32 Wis 2d. 523, 528-29, 145 N.W.2d 766 (1966).
We will reverse a circuit court’s decision to grant or deny a mistrial “only on a
clear showing of an erroneous use of discretion.” Jensen, 275 Wis. 2d 604, ¶29.

¶58 As mentioned, Amarei’s claim that a mistrial should have been
granted is based on a post-it note that he found inside the exhibit binder that was
being used by M&D’s trial witnesses. Specifically, as he was being cross-
examined about Wyttenbach’s calendar, which had been admitted as a trial
exhibit, Amarei found a note stuck to the calendar. The note read: “Text to Ben on
the 22nd, pictured on Page 14, Doc 16.” On finding the note, Amarei asked,
“Your Honor, [are] there supposed to be post-its inside of this with notes?”
Shortly thereafter, Amarei said, “If that’s not a mistrial, I don’t know what is.”

¶59 The circuit court gave Amarei the opportunity to present argument
about why a mistrial might be warranted. Amarei argued that the post-it note
suggested that M&D’s witnesses “had help” with their testimony, and he raised
the concern that there might have been more notes “guiding the[] testimony.”
M&D’s counsel represented that he did not write the note or place it inside of the
witness binder. Amarei responded that, in his view, the testimony from M&D’s
witnesses was “corrupt” and a mistrial was required.

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No. 2024AP2083

¶60 After a brief recess, the circuit court denied the mistrial request. The
court acknowledged that it did not know who wrote the note or how it got into the
binder, but from the court’s perspective, the note had “no meaning” and was
harmless. The court explained that it had reviewed the “entire witness binder” and
found that “none of the rest of [the pages] have any notations or post-it notes or
otherwise.” Under these circumstances, Amarei had not persuaded the court that
the “drastic measure” of a mistrial was “appropriate” or “necessary.”

¶61 On appeal, Amarei argues that the circuit court’s inquiry into the
note was insufficient to determine if any witness had been “improperly
influenced.” Among other things, he argues that the court should have attempted
to ferret out “who wrote [the note],” “[w]hether it was created before or during
trial,” “[i]f witnesses saw or used it,” and “[i]f it [was] aligned with themes or
content from M&D’s testimony.” However, it was Amarei’s burden to
demonstrate that such action was necessary, and he did not make any such
showing. See State v. Harrell, 85 Wis. 2d 331, 337, 270 N.W.2d 428 (Ct. App.
1978) (the party seeking a mistrial has the burden of demonstrating that grounds
exist for a mistrial).

¶62 We conclude that the circuit court appropriately exercised its
discretion with respect to the mistrial request. We agree with the court that on its
face, the note appears to be innocuous. Although Amarei asserts that M&D was
using the note to “bolster witness recollection” and “guide [witness] testimony,”
Amarei does not elaborate on this assertion in any meaningful way. Nor does
Amarei explain why, if the note had been intended to refresh a witness’s
recollection about the existence of text messages, that would warrant the drastic
remedy of a mistrial.

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No. 2024AP2083

¶63 When a mistrial is demanded, a circuit court is free to impose a less
drastic remedy. See State v. Givens, 217 Wis. 2d 180, 191, 580 N.W.2d 340 (Ct.
App. 1998) (providing that “not all errors warrant a mistrial and [that] ‘the law
prefers less drastic alternatives, if available and practical’” (citing State v. Bunch,
191 Wis. 2d 501, 512, 529 N.W.2d 923 (Ct. App. 1995))). Under the
circumstances here, the court was aware of the note and if it caused the court to
question the credibility of any particular testimony, the court was free to take the
note’s existence into account as part of its decision.

III. M&D’s Cross-Appeal with Respect to Prejudgment Interest and
Attorney Fees

¶64 We now address M&D’s cross-appeal of the portion of the judgment
that denied M&D’s request for prejudgment interest and reasonable collection
costs, including attorney fees. In its cross-appeal, M&D argues that it is entitled to
prejudgment interest and collection costs under the terms of the Weekend Lease
Agreement. We agree, but only in part. As we now explain, we conclude that the
circuit court erred when it did not award any interest or collection costs related to
the portion of the damages award that is based on the Agreement, but that the
court correctly determined that M&D is not entitled to interest or fees with respect
to the portion of the damages award that is based on unjust enrichment, and we
remand for the court to exercise its discretion to determine the amount.

¶65 With regard to litigations costs, Wisconsin follows the “American
Rule,” which provides that “parties to litigation typically are responsible for their
own attorney fees.” Estate of Kriefall v. Sizzler USA Franchise, Inc., 2012 WI
70, ¶¶71-72, 342 Wis. 2d 29, 816 N.W.2d 853. “Limited exceptions do exist,”
however, including when “the parties contract for the award of attorney fees.” Id.
Likewise, “when the parties explicitly agree … [in] contract … that damages will

22
No. 2024AP2083

… include prejudgment interest, the parties will be held to that agreement, whether
or not interest would be proper without such an agreement.” Klug & Smith Co. v.
Sommer, 83 Wis. 2d 378, 382, 265 N.W.2d 269 (1978).

¶66 Thus, whether M&D is entitled to attorney fees and prejudgment
interest turns, at least in part, on the interpretation of the Weekend Lease
Agreement. We review the interpretation of a written contract, including whether
it provides for attorney fees and prejudgment interest, de novo. See Jos. P.
Jansen Co. v. Milwaukee Area Dist. Bd. of Vocational, Tech. and Adult Educ.,
105 Wis. 2d 1, 13, 312 N.W.2d 813 (1981).

¶67 Here, as noted, the Weekend Lease Agreement provided that Amarei
agreed to certain standard terms and conditions. More specifically, it provided:
“BY SIGNING THIS LEASE, LESSEE … AGREES TO THE TERMS AND
CONDITIONS SET FORTH ON PAGE 1 AND PAGE 2 OF THIS LEASE
AGREEMENT.” And as pertinent here, the standard terms and conditions
included the following:

10. In consideration for the extension of credit, said
business promises to pay for all purchases within the terms
agreed (due upon receipt of invoice) and agrees to pay a
service charge per month of 1 1/2% per month (18% annual
percentage rate) on all past balances due….

11. In the event any third parties are employed to
collect any outstanding monies owed by said business the
undersigned agrees to pay reasonable collection costs,
including attorney fees, whether or not litigation has
commenced, and all costs of litigation incurred….

Based on this unambiguous language, Amarei agreed to pay interest “on all past
balances due” and to pay “reasonable collection costs, including attorney fees” if a
third party was employed to collect “outstanding monies owed.”

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No. 2024AP2083

¶68 But that does not end our inquiry. As noted, the circuit court’s
damages award included two kinds of damages: $1,498 in damages under the
Agreement, and $11,983.32 in damages based on unjust enrichment. And here,
although the Weekend Lease Agreement unambiguously provides for prejudgment
interest and collection costs, the court declined to award any interest or costs under
the Agreement on account of the fact that the majority of the damages it awarded
were based on unjust enrichment, and not under the Agreement.

¶69 M&D argues that “[a]ssuming the circuit court[] … [is] correct” in
its conclusions about unjust enrichment, M&D is entitled to contract-based interest
and attorney fees at least with respect to the damages awarded under the Weekend
Lease Agreement. We agree, and we remand for the court to make that award.
The amount of an attorney fees award is typically left to the court’s discretion due
to that court’s ability to assess the quality of services rendered and the
reasonableness of the fees. Stuart v. Weisflog’s Showroom Gallery, Inc., 2008
WI 22, ¶14, 308 Wis. 2d 103, 746 N.W.2d 762. Here, the court should also
consider M&D’s costs related to the appeal and cross-appeal. Benkoski v. Flood,
2001 WI App 84, ¶38, 242 Wis. 2d 652, 626 N.W.2d 851 (“a plaintiff who
recovers attorney fees at the trial court level shall recover further attorney fees
incurred on a successful defense of the award on appeal”).

¶70 But M&D asks us to go further and to order the circuit court to
award contract-based interest and attorney fees with respect to the entire damages
award, including the portion of the award that the court designated as unjust
enrichment damages. M&D advances several different arguments in support of
that result, which we now consider and reject.

24
No. 2024AP2083

¶71 One argument that M&D makes is directly contrary to the position it
took in the circuit court. That argument is that the Weekend Lease Agreement
extended beyond the initial-weekend period into the post-weekend period;
therefore, M&D contends, the $11,983.32 in damages for the post-weekend period
are contract damages governed by the Agreement. Under the circumstances,
M&D contends, the court was wrong to award damages based on a theory of
unjust enrichment.

¶72 Regarding this interpretation of the Weekend Lease Agreement, we
rejected these same arguments as part of Amarei’s appeal. In addition to the
reasons we gave for rejecting the argument when Amari made it, there are at least
two additional reasons for rejecting the argument now that M&D advances it in its
cross-appeal.

¶73 The first reason is the concept of “invited error.” In the trial brief
that M&D filed with the circuit court, M&D did not argue that the Weekend Lease
Agreement covered the post-weekend period. Indeed, its trial brief took the
contrary position, stating: “Clearly, the initial contract between the parties was for
a weekend only.” M&D’s brief went on to request that, “[i]n the absence of an
express agreement as to compensation” for the post-weekend period, the circuit
court should award damages either under implied-in-fact contract or based on
unjust enrichment. Accordingly, if it was error to award damages for unjust
enrichment, M&D specifically invited the court to make that error. Generally
speaking, we will not reverse a court based on an invited error. See Atkinson v.
Mentzel, 211 Wis. 2d 628, 642-43, 566 N.W.2d 158 (Ct. App. 1997) (when an
allegedly erroneous ruling was invited by the appellant during the circuit court
proceedings, we “will not review [the] invited error”).

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No. 2024AP2083

¶74 The second reason is that M&D’s new argument is unpersuasive.
M&D relies on the “rental charges” provision in the Weekend Lease Agreement to
show that Amarei agreed that he would be subject to additional rental charges if he
kept the equipment beyond the initial weekend.4 However, price is an essential
term of a lease agreement, and the provision that M&D relies on is silent as to the
rental rate that Amarei would be charged if he retained equipment beyond the
initial weekend period. Accordingly, in the absence of an agreement about price,
the rental charges provision does not bring any post-weekend rental charges within
the scope of the Agreement. In reality, M&D’s argument seeks to modify the
Agreement, contrary to the provision in the Agreement that provides that all
modifications must be in writing.

¶75 M&D makes an alternative argument about implied contracts that is
also unavailing. An implied-in-fact contract is a meeting of the minds that is
circumstantially proved by words and conduct which show a mutual intention to
contract. Theuerkauf v. Sutton, 102 Wis. 2d 176, 306 N.W.2d 651 (1981); see
also WIS JI—CIVIL 3024 (“An agreement may be established by the conduct of the
parties … if from such conduct it can fairly be inferred that the parties mutually
intended to agree on all terms.”). According to M&D, even if the post-weekend
rental charges were not properly awarded under the Weekend Lease Agreement,
the evidence of the parties’ conduct following the initial weekend period was
sufficient to prove the existence of implied contracts, and the circuit court should
have awarded post-weekend damages on that basis.

4
As discussed above, supra ¶¶8, 35, the rental charges provision provides: “Rental
charges begin when the equipment leaves our yard and end when it is returned[.]”

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No. 2024AP2083

¶76 Even if we were to assume that the parties entered into implied
contracts that governed the post-weekend period, that would not mean that M&D’s
damages under those implied contracts would be subject to the prejudgment
interest and collection costs provisions that were part of the Weekend Lease
Agreement. The terms that comprise an implied contract are those that are
necessarily implied by the parties’ words and conduct, and damages under an
implied contract are typically limited to the “reasonable value” of the goods or
services at issue. See Theuerkauf, 102 Wis. 2d at 185; see also Roeske v.
Diefenbach, 75 Wis. 2d 253, 260, 249 N.W.2d 555 (1977) (addressing an
unwritten oral contract and stating that “this court will not import more into an
oral contract than is expressed and agreed upon by the parties”). Here, at most, the
trial evidence would support the existence of an agreement that M&D would
continue to provide equipment and that Amarei would pay for it based on M&D’s
posted rates. None of the evidence about the parties’ words and conduct
demonstrate that there was a mutual understanding about terms and conditions
involving prejudgment interest and collection costs.

¶77 To the extent that M&D might be arguing that the terms and
conditions from the Weekend Lease Agreement were incorporated into any
implied contracts based on Amarei’s familiarity with those terms as part of
M&D’s standard written contract, M&D does not point us to any authority for that
proposition. And, based on our limited independent research, the law does not

27
No. 2024AP2083

appear to support any such argument.5 As M&D argued in the circuit court, any
implied contract entered into after the initial weekend period “was an entirely new
contractual arrangement.”

¶78 Finally, M&D argues that it does not matter if the post-weekend
damages were based on unjust enrichment, rather than on a contract. M&D takes
the position that it can collect costs with respect to the entire damages award
because the pertinent provision in the Weekend Lease Agreement “does not
restrict” attorney fees to the damages that occur “within ‘the four corners’” of that
contract. In support, M&D points to language in the Agreement that provides that
Amarei agreed to pay reasonable collection costs including attorney fees on “any
outstanding monies owed.” Thus, M&D contends, it is entitled to its costs with
respect to the unjust enrichment award because those damages are “outstanding
monies owed.”

¶79 We disagree with M&D’s interpretation. “Contractual provisions
must be interpreted within the context of the contract as a whole,” MS Real Estate
Holdings v. Donald P. Fox Family Trust, 2015 WI 49, ¶43, 362 Wis. 2d 258, 864
N.W.2d 83, and here, the Weekend Lease Agreement concerns a specific rental
transaction between M&D and Amarei. Thus, we read the terms and conditions in
the Agreement as applying to the specific transaction that is set out in that

5
Specifically, WISCONSIN. STAT. ch. 411 (2023-24) governs any transaction that creates
a lease, and WIS. STAT. § 411.201(1) is a statute of fraud that provides that lease contracts for
more than $1,000 must be in writing and describe the goods leased and the lease term.
Paragraph 411.201(4)(c) provides that a lease contract that does not comply with the writing
requirement but is valid in other respects may be enforced if the “[g]oods [here, the equipment]
have been received and accepted by the lessee [here, Amarei],” but not “beyond the quantity of
goods received and accepted.” All references to the Wisconsin Statutes are to the 2023-24
version.

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No. 2024AP2083

contract. We conclude that Amarei is liable for M&D’s collection costs if, based
on the transaction described in that contract, he ends up owing M&D “outstanding
monies” that require third-party collection. We do not agree that by signing the
Weekend Lease Agreement, Amarei also agreed that any future transactions that
are not set out in the Agreement would also be governed by all the same terms and
conditions.

¶80 In summary on the cross-appeal, we conclude that M&D is entitled
to contract-based prejudgment interest and collection costs with respect to the
portion of the award that is based on the Weekend Lease Agreement, but not with
respect to the portion of the damages award that is based on unjust enrichment.
We further conclude that it is within the circuit court’s discretion to determine that
amount of interest and costs, and we remand for the court to exercise its discretion
to determine the amount. On remand, the court should consider the various factors
that our supreme court identified in Kolupar v. Wilde Pontiac Cadillac, Inc., 2004
WI 112, ¶25, 275 Wis. 2d 1, 683 N.W.2d 58, as part of its determination of the
appropriate attorney fees award for M&D on its contract claim.6

CONCLUSION

¶81 For the reasons explained above, we reject the arguments Amarei
makes with respect to the damages award, and we likewise reject his argument that
the circuit court erroneously denied his request for a mistrial. As for M&D’s
cross-appeal, we conclude that the court erred, but only in part, with respect to

6
Because we determine that the circuit court erred in part with respect to M&D’s claim
for prejudgment interest and collection costs under the terms of the Agreement, we need not
address M&D’s alternative argument about costs and fees pursuant to WIS. STAT. § 814.01.

29
No. 2024AP2083

M&D’s request for prejudgment interest and collection costs, and we remand for
further proceedings consistent with this opinion.

By the Court.—Order affirmed in part, reversed in part and cause
remanded for further proceedings.

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

30