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Breach of Contract – Theft-by-contractor

By: Derek Hawkins//February 23, 2022//

Breach of Contract – Theft-by-contractor

By: Derek Hawkins//February 23, 2022//

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WI Court of Appeals – District IV

Case Name: Antonio Soria v. Classic Custom Homes of Waunakee Inc.,

Case No.: 2020AP1931

Officials: Blanchard, P.J., Fitzpatrick, and Nashold, JJ.

Focus: Breach of Contract – Theft-by-contractor

In 2013, Antonio Soria sued Classic Custom Homes of Waunakee, Inc., (“Custom Homes”) for breach of contract and theft by contractor. After a jury found in favor of Soria on those claims, both Custom Homes and Soria appealed to this court. In an unpublished opinion, we decided six separate issues. Soria v. Classic Custom Homes of Waunakee, Inc., No. 2017AP1693, unpublished slip op. (WI App July 11, 2019) (“Soria I”). On two of those issues, this court reversed rulings of the circuit court and remanded this case with instructions to: (1) dismiss Soria’s theft by contractor claims with prejudice and vacate the portions of the judgment relating to the theft by contractor claims; and (2) determine the amount of prejudgment interest that Custom Homes owed to Soria on the breach of contract cause of action. Id., ¶¶56, 74, 78.

After remand, and pertinent to this appeal, Soria filed motions requesting that the circuit court amend its prior judgment to conclude that Custom Homes committed embezzlement, and award exemplary damages for such purported embezzlement, even though Soria never raised the issue of embezzlement in the first set of proceedings in the circuit court or in the prior appeal. In response, Custom Homes filed a motion in the circuit court requesting sanctions against Soria and his attorney based on those allegedly frivolous motions. The circuit court denied both parties’ motions, and both parties now appeal those rulings.

For the reasons we discuss in this opinion, we affirm the circuit court’s denial of Soria’s motions. Regarding Custom Homes’ cross-appeal, we reverse the ruling of the circuit court and conclude that Soria’s motions filed in the circuit court were frivolous pursuant to WIS. STAT. § 802.05(2)(b) (2019-20).  Accordingly, we remand this case to the circuit court to determine the appropriate sanction or sanctions to assess against Soria’s attorney.

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Derek A Hawkins is Corporate Counsel, at Salesforce.

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