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Statutory Interpretation – Statute of Frauds

WI Court of Appeals – District IV

Case Name: Lisa Marie Sklenar v. Bennett & Roelofs Estate Sales

Case No.: 2019AP1717

Officials: GRAHAM, J.

Focus: Statutory Interpretation – Statute of Frauds

Lisa Marie Sklenar appeals the circuit court’s decision, made at the end of a small claims trial, that Sklenar is not entitled to the relief she requested in her complaint. I affirm.

On appeal, Sklenar contends that B&R is not entitled to commission for any of the items that were sold. She does not dispute the existence of an oral agreement that B&R would sell her items and take a commission from the proceeds. She instead argues that based on WIS. STAT. § 402.201, any such agreement is unenforceable. She also renews her argument that Bennett sold the fashion items for much less than they were worth, and she argues that she is entitled to a restitution hearing to establish their value.

B&R did not contract to purchase goods from Sklenar. It instead contracted to list the goods she owned for sale to third parties, and to facilitate shipping and payment once B&R found a buyer. On its face, this appears to be a type of contract that would fall outside the scope of WIS. STAT. § 402.201, and Sklenar does not cite any law or develop any argument to the contrary. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (the court need not address undeveloped legal arguments on appeal).

Turning to Sklenar’s argument regarding the value of the fashion items, the sole evidence she offered at trial was the amount that she originally paid for these items in 2010 and 2017. The circuit court determined that this evidence was insufficient to establish their value at the time they were sold in 2018, and Sklenar does not argue that this determination is erroneous. She instead asserts that she should have been given the opportunity for a “restitution hearing” so that she could prove the value of the fashion items. Putting aside that it is not clear whether restitution would be an appropriate remedy for the claims advanced in the complaint, Sklenar’s opportunity to present evidence of her damages was during the small claims hearing.

Finally, turning to the Hyundai, the circuit court found that Sklenar did not pay any commission for the car. Sklenar does not argue that this finding is clearly erroneous until her reply brief, and appellate courts typically decline to address arguments that are raised for the first time in a reply brief. State v. Reese, 2014 WI App 27, 353 Wis. 2d 266, 274 n.2, 844 N.W.2d 396. But even if I were to consider this argument, disregard the court’s finding of fact, and determine that B&R did collect a $500 commission from Sklenar for the Hyundai, Sklenar does not show why that fact would matter. Sklenar has advanced just one argument to support her assertion that B&R is not entitled to a commission for the Hyundai— that the oral agreement was unenforceable under WIS. STAT. § 402.201—and I have already rejected this argument for reasons explained above.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.

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