Please ensure Javascript is enabled for purposes of website accessibility

Contracts – breach — damages


Contracts – breach — damages


Listen to this article

Wisconsin Court of Appeals


Contracts – breach — damages

Burlington Pavers Leasing, LLC, of Racine, leased to David Montoya Construction, Inc., of New Mexico, a mobile plant used to produce concrete. In 2011, after five years of plant use by Montoya, Burlington initiated this action for replevin of the plant and damages against Montoya. Burlington alleged that Montoya was unjustly enriched and had breached a series of written and oral or implied leasing agreements between the parties, including by failing to: pay Burlington all rent due on the plant; properly repair and maintain the plant; and return the plant to Burlington.

Montoya counterclaimed, alleging that Burlington had breached agreements to deliver an operational plant to Montoya in the first place, or to pay for needed repairs to the plant, and had failed to notify Montoya that Burlington intended to bill Montoya based on a monthly volume usage basis for those months in which the volume of concrete that Montoya produced would generate a larger rent payment than under a base or minimum monthly fee of $15,000. At trial, the jury made findings that included the following: during the final phase of the parties’ contractual relationship, after the second of two written contracts between the parties had expired, Montoya breached an oral or implied agreement regarding rent payments, resulting in damages to Burlington of $329,825. This involved a dispute over the volume usage versus base rate methods of calculating monthly rent payments, with the jury finding that Burlington was entitled to the higher payments.

In its appeal, Montoya argues that the circuit court erred in failing to grant judgment notwithstanding the verdict (JNOV) in its favor regarding the rent payment damages against Montoya found by the jury, based on the legal theory of account stated. We reject this argument based on forfeiture, because Montoya failed to present to the circuit court the account stated legal theory that it pursues on appeal and has now abandoned other legal theories it did present to the circuit court.

Burlington cross-appeals regarding a separate jury finding regarding repair and maintenance of the plant. The jury answered “no” when asked if Montoya breached either of the two written leases or the oral or implied agreement by failing to properly repair and maintain components of the plant. Burlington argues that the circuit court should have changed the answer to this question to “yes,” because the evidence was insufficient to sustain a verdict of no breach regarding proper repair or maintenance. We reject this argument on the grounds that the jury was presented with sufficient evidence to conclude that Montoya followed a mode of plant repair and maintenance called for in the agreements of the parties in light of the condition of the plant when Montoya received it from Burlington and its condition when Burlington took it back.

Separately, we reverse a circuit court decision denying Burlington’s attorney’s fees arising from a separate action filed by Montoya in New Mexico, but we affirm a decision denying Burlington’s attorney’s fees arising from this action. Not recommended for publication in the official reports.

2013AP1482 Burlington Pavers Leasing LLC v. David Montoya Construction Inc. et al.

Dist II, Racine County, Jude, J., Blanchard, P.J.

Attorneys: For Appellant: Armstrong, Thomas, Milwaukee; Nelson, Steven L., Milwaukee; Fronk, Nathan S., Milwaukee; For Respondent: Leavell, Jeffrey L., Racine; Koppes, Christopher John, Racine


What kind of stories do you want to read more of?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests