Randy L. Nelson v. Randall G. Berg ( 2023 )

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.
May 11, 2023
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2022AP31 Cir. Ct. No. 2020CV277
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
RANDY L. NELSON,
PLAINTIFF-APPELLANT-CROSS-RESPONDENT,
V.
RANDALL G. BERG AND DEBORAH A. BERG,
DEFENDANTS-RESPONDENTS-CROSS-APPELLANTS.
APPEAL and CROSS-APPEAL from judgments of the circuit court
for Jefferson County: WILLIAM F. HUE, Judge. Affirmed.
Before Fitzpatrick, Graham, and Nashold, 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. 2022AP31
¶1 PER CURIAM. Randy Nelson appeals the circuit court’s judgment
of eviction in favor of Randall and Deborah Berg, and he challenges the court’s
earlier dismissal of a portion of his complaint against the Bergs. The Bergs cross-
appeal the circuit court’s damages award in favor of Nelson. For the reasons
explained below, we affirm.
BACKGROUND
¶2 This case arises out of a real estate transaction between Nelson and
the Bergs, who were neighbors. Nelson owned and lived on a 42-acre agricultural
property that included a farmhouse and outbuildings. The Bergs offered to
purchase the property in 2015, and Nelson accepted the Bergs’ offer. The
transaction that followed consisted of several separate documents that had been
prepared by legal counsel, and that the parties executed that spring. These
documents included a post-closing “occupancy agreement,” which allowed Nelson
to continue to occupy the farmhouse, and also an “option-to-purchase agreement,”
which gave Nelson a two-year option to repurchase the farmhouse and four acres
under specified terms, including payment of a $50,000 purchase price.
¶3 The dispute that is the subject of this appeal arose in 2020. At that
time, the Bergs sent Nelson a letter that purported to “non-renew” what they
characterized as Nelson’s “lease” on the farmhouse. Nelson filed suit against the
Bergs seeking various forms of relief. In his complaint, which we describe in
greater detail below, Nelson took the position that he continued to have an option
to purchase the farmhouse and four acres, and that he had almost finished paying
the purchase price. Resolution of this dispute hinges on the various documents
comprising the 2015 transaction and the complaint’s allegations about the actions
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the parties took after they executed those documents, as alleged in Nelson’s
complaint, both of which we now describe in some detail.
¶4 We begin with the farm offer to purchase agreement (the “offer”).
Randall Berg executed the offer on March 6, 2015, and Nelson accepted it.
Pursuant to the offer’s terms, the sale was to close in March, but the parties later
amended the offer by adding Deborah Berg as a buyer and moving the closing date
to April 10. At closing, the parties executed the two agreements mentioned above:
the occupancy agreement and the option-to-purchase agreement.
¶5 The occupancy agreement granted Nelson the right to occupy the
farmhouse and surrounding acreage for two years following the closing. Under its
terms, Nelson agreed to pay the Bergs $500 a month, and he was responsible for
all repairs and maintenance of the premises. The occupancy agreement specified
that it was not creating a landlord-tenant relationship and was not subject to the
provisions of the Wisconsin statutes and administrative code that govern such
relationships.
¶6 Turning to the option-to-purchase agreement, as mentioned above,
that agreement gave Nelson an option to repurchase the farmhouse and four
surrounding acres for $50,000. Pursuant to its terms, Nelson had to exercise the
option in writing no later than April 10, 2017: “This Option may only be
exercised if [Nelson] delivers written notice to [the Bergs] no later than midnight
April 10, 2017 unless extended below.” The parties struck language from the
form agreement that would have allowed Nelson to extend the initial option term
by paying a specified sum. The option-to-purchase agreement also specified that
the buy-back transaction “is to be closed no later than April 10, 2017 … unless
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otherwise agreed by the Parties in writing,” and that “‘Time is of the Essence’” as
to the deadlines for exercising the option and closing the buy-back transaction.
¶7 The option-to-purchase agreement cross-referenced the occupancy
agreement which, as explained above, provided that Nelson would pay the Bergs
$500 each month to occupy the premises. The parties struck language from the
form option-to-purchase agreement that would have credited these occupancy
payments towards the $50,000 purchase price. Specifically, the stricken language
provided: “In the event that this Option is timely exercised, $___ of each monthly
rent payment of $___ shall be applied to the purchase price while the balance shall
be deemed solely rent that is retained by the seller.” (Quoted text stricken in
original.)
¶8 The option-to-purchase agreement also contained a merger clause,
which provided that the written agreement “contains the entire agreement …
regarding the transaction. All prior negotiations and discussions have been
merged into this Option.”
¶9 The closing took place as scheduled on April 10, 2015. Then, less
than one month later, the parties signed a standard form lease agreement (the
“lease”) that conflicted in some ways with the post-closing occupancy agreement.
According to its terms, the lease would run until April 30, 2016, and Nelson would
pay the Bergs $500 in rent each month to occupy the farmhouse.1 The lease did
not specifically reference the occupancy agreement and, unlike the occupancy
1
The parties added a handwritten provision to the lease that provided: “If full rent is
more than 29 days late, offer to purchase the home and buildings with 4 surrounding acres is
void. Note: Offer to Purchase expires 4-2017.”
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agreement, the lease did not provide that Nelson was responsible for all repairs
and maintenance of the premises.
¶10 One year later on May 1, 2016, the parties signed a lease renewal
agreement. The renewal agreement incorporated the terms of the prior lease,
except that it would expire on April 30, 2017.
¶11 During the two-year term of the option-to-purchase agreement,
Nelson made timely payments each month to the Bergs. The option granted by the
written option-to-purchase agreement expired on April 10, 2017. It is undisputed
that Nelson did not exercise his option, and that the parties did not execute any
written extension of the option. It is also undisputed that the lease renewal expired
on April 30, 2017, and the parties did not execute another lease renewal or any
other document to govern their relationship.
¶12 Between 2017 and 2020, Nelson continued to live in the farmhouse,
occupy the four surrounding acres, and make monthly payments to the Bergs. The
Bergs increased his monthly payments from $500 to $600, and then to $700.
¶13 The Bergs sent the “notice of non-renewal” to Nelson on July 15,
2020. According to the notice, the “[o]riginal written lease ended on April 30,
2017” and the parties “mutually agreed … to a verbal month to month lease going
forward.” The notice provided that, effective August 31, 2020, the Bergs would
not be renewing Nelson’s lease, and it directed Nelson to vacate the farmhouse by
that date.
¶14 Nelson filed a complaint, which he subsequently amended. His
allegations are difficult to parse, but it appears that Nelson is alleging that he
retains an option to purchase the farmhouse and surrounding four acres pursuant to
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his written and oral agreements with the Bergs. He alleges that the transaction
documents summarized above contain some but not all of the agreements between
the parties, and that the parties agreed to other terms that do not appear in the
transaction documents, including some terms that are directly contrary to the
express terms of the transaction documents. Nelson appears to be alleging that, at
some point, he and the Bergs agreed that his monthly payments would be credited
as “principal” towards the option-to-purchase price. He also appears to allege that,
sometime in 2017, he and the Bergs orally agreed to extend the option deadline
until he had paid off the $50,000 purchase price in full.2 In his subsequent court
filings, Nelson acknowledged that he had not yet fully satisfied the purchase price,
but he indicated that “the unpaid principal is now $2,500.”
¶15 As best as we understand it, Nelson’s complaint asked the circuit
court for specific performance of the parties’ alleged oral agreements pursuant to
WIS. STAT. § 706.04 (2021-22).3 That statute allows a court to equitably enforce
some land transactions that do not satisfy all of the requirements of the statute of
frauds. Alternatively, Nelson’s complaint seeks damages in the amount of his
2
Nelson later submitted a brief to the circuit court that contained additional factual
assertions that were not expressly alleged in his complaint. More specifically, Nelson’s brief
asserted that Nelson approached Randall Berg in early 2017 to discuss an extension of his
April 10, 2017 deadline to exercise the option. Berg told Nelson that he could simply continue
making the regular monthly payments. Nelson suggested that they have an attorney prepare a
written option extension. Berg disagreed, describing the cost of retaining an attorney as
unnecessary and something to be avoided.
These factual assertions are not properly considered on a motion to dismiss because they
were not included in Nelson’s complaint. However, our decision affirming the dismissal of the
claim would be no different even if Nelson had amended his complaint to include these
allegations.
3
All references to the Wisconsin Statutes are to the 2021-22 version.
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monthly payments to the Bergs, either under a breach of contract theory or an
unjust enrichment theory.
¶16 The Bergs answered Nelson’s complaint and counterclaimed for a
writ of eviction. They then filed a motion to dismiss the complaint for failure to
state a claim upon which relief could be granted under WIS. STAT. § 802.06. The
Bergs attached the transaction documents to their motion, and they argued that
Nelson’s option to purchase expired in 2017; the Bergs had not verbally agreed to
extend it; the parties had not agreed to credit Nelson’s monthly payments towards
the option-to-purchase price; and, following the expiration of the lease, Nelson’s
occupancy of the premises was converted into a month-to-month tenancy.
¶17 In a written decision, the circuit court granted the motion to dismiss
in part. The court determined that Nelson’s complaint failed to state a claim under
WIS. STAT. § 706.04 for enforcement of the alleged oral agreements regarding the
option to purchase. The court further determined that the complaint failed to state
a claim for damages under a breach of contract theory because Nelson’s option to
purchase the farmhouse and surrounding acreage had expired, the alleged oral
agreements were unenforceable, and Nelson did not identify any other contract
term that the Bergs had breached. However, the court determined that the
complaint stated a claim for unjust enrichment, and that claim proceeded to a
bench trial.
¶18 At the outset of the trial, the circuit court asked Nelson’s counsel to
identify the nature of his unjust enrichment theory, given the court’s earlier ruling
that the alleged oral agreement to extend the option to purchase was
unenforceable. Following a lengthy exchange, Nelson’s counsel stated that the
only theory of unjust enrichment that survived the court’s ruling was Nelson’s
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claim that he had provided various services, including repairs, for the Bergs over
the years by which they had been unjustly enriched.
¶19 Nelson and Randall Berg both testified at the trial. Nelson testified
that he had performed various services for the Bergs over the course of several
years, and a list of these services was introduced into evidence. At the conclusion
of the trial, the circuit court determined that Nelson was entitled to compensation
for some but not all of the services. The court awarded $7,777.50 in damages to
Nelson, and it also issued a writ of eviction in favor of the Bergs. We discuss the
evidence regarding Nelson’s damages and details of the circuit court’s decision at
greater length below when we address the Bergs’ cross-appeal.
DISCUSSION
¶20 Nelson’s appeal challenges the circuit court’s dismissal of his claims
regarding the option-to-purchase agreement, and the Bergs’ cross-appeal
challenges the sufficiency of the evidence presented to support the court’s
damages award.4 We address the appeal and the cross-appeal in turn.
I. Nelson’s Appeal
¶21 A motion to dismiss for failure to state a claim tests the sufficiency
of the complaint. Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶19,
356 Wis. 2d 665, 849 N.W.2d 693. In reviewing a circuit court order granting a
motion to dismiss, we liberally construe the pleadings, and we accept as true the
4
Nelson asks us to strike the Bergs’ response and cross-appellants brief as untimely. We
decline to do so. Although the Bergs did not file their brief within the deadline set forth in WIS.
STAT. RULE § 809.19(6), this court extended that deadline by order dated June 14, 2022, and the
Bergs filed their brief before the extended deadline elapsed.
8
No. 2022AP31
facts alleged in the complaint and all reasonable inferences from those facts.
Heinritz v. Lawrence Univ., 194 Wis. 2d 606, 610-11, 535 N.W.2d 81 (Ct. App.
1995). In addition to the allegations in the complaint, we “may consider a
document attached to the motion to dismiss … without converting the motion into
one for summary judgment, if the document was referred to in the plaintiff’s
complaint, is central to [the plaintiff’s] claim, and its authenticity has not been
disputed.” Soderlund v. Zibolski, 2016 WI App 6, ¶37, 366 Wis. 2d 579, 874
N.W.2d 561. Whether a complaint states a claim is a question of law that we
decide de novo, although we benefit from the circuit court’s analysis. Data Key
Partners, 356 Wis. 2d 665, ¶17.
¶22 As discussed, Nelson’s complaint alleges that he continues to have
an enforceable option to purchase the farmhouse and surrounding acreage from the
Bergs. He alleges that his option did not actually expire on April 10, 2017, as the
written option agreement expressly states, because the parties orally agreed to
extend that deadline. Nelson contends that the circuit court erred by not accepting
his allegations about this oral agreement as true, and that the court’s dismissal
order must be reversed on that basis alone.
¶23 Contrary to Nelson’s assertion, the circuit court accepted all of his
factual allegations as true when it ruled on the motion to dismiss. The court’s
determination that Nelson failed to state a claim was based on a legal conclusion
that, even if the parties orally agreed to extend Nelson’s option to purchase, that
oral agreement was legally ineffective to modify the unambiguous terms of the
written option to purchase. When considering whether a plaintiff’s allegations
state a claim, a court is not required to assume that the legal conclusions pled by a
plaintiff are true, and bare conclusions of law “[do] not fulfill a plaintiff’s duty of
stating the elements of a claim in general terms.” Doe v. Archdiocese of
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Milwaukee, 2005 WI 123, ¶36, 284 Wis. 2d 307, 700 N.W.2d 180 (citation
omitted).
¶24 In any event, we independently review whether Nelson’s complaint
states a claim, and we may affirm the circuit court’s dismissal for reasons the court
did not consider. Anderson v. Regents of Univ. of Cal., 203 Wis. 2d 469, 480,
554 N.W.2d 509 (Ct. App. 1996). Like the circuit court, we conclude that the
complaint fails to state a claim.
¶25 We begin with the written option-to-purchase agreement, which
plainly does not allow Nelson to exercise his option to purchase the farmhouse and
surrounding acreage at this late date. According to its unambiguous terms, Nelson
was required to exercise the option in writing no later than April 10, 2017, the
transaction was required to close that same day, and any agreement to extend the
closing date had to be in writing. Nelson acknowledges that he did not exercise
his option and close the transaction by April 10, 2017, and that the parties did not
extend those deadlines in writing, and, therefore, under the terms of the agreement,
the option has expired.
¶26 Nelson’s complaint seeks reformation of the written option-to-
purchase agreement based on the parties’ oral agreements. For purposes of
considering the Bergs’ motion to dismiss, we assume that the allegations in the
complaint are true—that the parties orally agreed that, contrary to the written
agreement, Nelson’s monthly payments would be credited towards the purchase
price, and he would retain an option to purchase until he paid off the $50,000
purchase price in full. Even assuming that the parties did orally agree to these two
terms, Nelson’s complaint fails to state a claim.
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¶27 To the extent Nelson is alleging that the parties actually agreed to
different terms before they executed the option-to-purchase agreement, Nelson
fails to state a claim for reformation of the option-to-purchase agreement. The
agreement contains an unambiguous merger clause, which states that the written
agreement embodies the entire agreement between the parties. “When the parties
to a contract embody their agreement in writing and intend the writing to be the
final expression of their agreement, the terms of the writing may not be varied or
contradicted by evidence of any prior written or oral agreement in the absence of
fraud, duress, or mutual mistake.” Town Bank v. City Real Estate Dev., LLC,
2010 WI 134, ¶36, 330 Wis. 2d 340, 793 N.W.2d 476 (citation omitted). Nelson’s
complaint does not allege fraud, duress, or mutual mistake and, therefore, Nelson
cannot rely on extrinsic evidence of a prior oral agreement to vary or contradict
the terms of the option-to-purchase agreement. Id.¶28 To the extent Nelson’s complaint alleges that the parties orally
agreed to modify terms in the option-to-purchase agreement after they had
executed it, Nelson’s complaint also fails to state a claim. As noted, the
agreement provides that any extension of the April 10, 2017 deadline to execute
the option and close the buy-back transaction must be in writing. Nelson cites to
WIS. STAT. § 706.04, which allows courts to equitably enforce defective
conveyances, including oral land transactions, under certain circumstances.5 See
5
WISCONSIN STAT. § 706.04 provides:
A transaction which does not satisfy one or more of the
requirements of [the statute of frauds, WIS. STAT. §] 706.02 may
be enforceable in whole or in part under doctrines of equity,
provided all of the elements of the transaction are clearly and
satisfactorily proved and, in addition:
(continued)
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Nelson v. Albrechtson, 93 Wis. 2d 552, 556, 287 N.W.2d 811 (1980) (stating that
§ 706.04 sets forth requirements that must be satisfied for a real estate transaction
not evidenced by a valid writing to be enforced); Krauza v. Mauritz, 78 Wis. 2d
276, 279, 254 N.W.2d 251 (1977) (enforcing an entirely oral buy-back agreement
under § 706.04 under circumstances in which the buyer proved the definite
material terms of the agreement and the sellers were equitably estopped from
asserting the statute of frauds). However, Nelson cites no authority to support the
proposition that parties can orally agree to extend a deadline in a written
agreement regarding the purchase of real estate if the written agreement itself
unambiguously provides that any extension must be in writing. See State v. Pettit,
171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992) (we need not address
undeveloped arguments that are unsupported by citations to legal authority). For
all these reasons, we conclude that Nelson has not stated a claim for reformation
of the option-to-purchase agreement, or for specific performance of the reformed
agreement.
¶29 Nelson’s claim for damages based on a breach-of-contract theory
likewise fails to state a claim. Nelson has not identified any breach of the terms of
the written option-to-purchase agreement, he has not shown that the alleged oral
(1) The deficiency of the conveyance may be supplied
by reformation in equity; or
(2) The party against whom enforcement is sought
would be unjustly enriched if enforcement of the transaction
were denied; or
(3) The party against whom enforcement is sought is
equitably estopped from asserting the deficiency. ….
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agreements were enforceable, and he has not identified any other contract
provision that the Bergs breached.
¶30 Finally, in his opening appellate brief, Nelson asserts that a
judgment of eviction should not have been entered “because this case is not a
simple landlord tenant case” and is instead “an option to purchase case.” This
argument rests on a legal argument that we have rejected—that Nelson retains an
option to purchase the farmhouse and surrounding acreage.6
II. The Cross-Appeal
¶31 The Bergs contend that the trial evidence was insufficient to support
the damages award in Nelson’s favor. We reject the Bergs’ arguments.
¶32 As mentioned above, following a bench trial, the circuit court
determined that Nelson was entitled to a total of $7,777.50 in damages related to
various services he performed for the Bergs over the years. The Bergs’ appellate
briefing mischaracterizes the entire award as unjust enrichment damages, but that
is inaccurate, and this mischaracterization of the award makes a difference in our
analysis of the Bergs’ arguments. We therefore briefly recount the evidence and
the circuit court’s determinations about the damages to which Nelson is entitled.
¶33 Nelson testified that he performed numerous services for the Bergs
for which he was not compensated, and a list of 42 of these services and Nelson’s
6
In his reply brief, Nelson asks us to modify the circuit court’s damages award and
award him additional damages, beyond what the circuit court ordered. We will not address
arguments raised for the first time in a reply brief. See A.O. Smith Corp. v. Allstate Ins. Cos.,
222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998) (“It is inherently unfair for an appellant
to withhold an argument from its main brief and argue it in its reply brief because such conduct
would prevent any response from the opposing party.”).
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approximation of their value was entered into evidence. At the end of the trial, the
circuit court went through this list item by item. It determined that Nelson was
entitled to damages for some of the services on the list but not for others, and the
court’s damages award fell into two separate categories: $3,385.00 in rent
abatement and $3,392.50 for unjust enrichment. We address these categories in
turn.
¶34 As for the rent abatement damages, the circuit court determined that,
although the parties’ post-closing occupancy agreement specified that Nelson was
not a tenant and was not occupying the premises pursuant to a lease, the parties
subsequently signed a lease agreement and a lease renewal; therefore, Nelson’s
occupancy was governed by the written terms of the lease and lease renewal
agreements and Wisconsin law on landlord-tenant relationships. The court further
determined that some but not all of the repairs and upgrades that Nelson made to
the farmhouse had been the landlord’s responsibility under the lease and
Wisconsin law—specifically, the well pump, the doors and locks, the windows,
the roof, the water heater, the toilets, the workshop door, the floors, and sewer
work. The court determined that Nelson was entitled to statutory damages in the
form of rent abatement in the amount of $3,385.00. The court specifically
explained that it was “making that award [of $3,385.00] statutorily. That’s not
under unjust enrichment.”
¶35 To the extent that the Bergs argue that the circuit court erroneously
awarded Nelson damages related to these specific repairs and upgrades, the Bergs
fail to grapple with the reasoning underlying the award. They assert in passing
that “there was no evidence presented that these items were essential for the
tena[nta]bility of the premises,” but this brief reference falls far short of a
developed argument. The Bergs do not cite to WIS. STAT. § 704.07(4), which is
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the source of Wisconsin law on rent abatement, nor do the Bergs cite any case law
addressing the respective obligations of landlords and tenants, when rent
abatement is appropriate, or the amount of abatement that should be ordered in a
given situation. Instead, the Bergs’ arguments rely primarily on principles of
unjust enrichment law, even though the court unequivocally stated that unjust
enrichment was not the basis for this part of the award.7 By failing to address the
grounds upon which the court ruled, the Bergs have conceded the validity of the
award of these statutory damages. See West Capitol, Inc. v. Village of Sister Bay,
2014 WI App 52, ¶49, 354 Wis. 2d 130, 848 N.W.2d 875 (“Failure to address the
grounds upon which the circuit court ruled constitutes a concession of the ruling’s
validity.”).
¶36 We now turn to the portion of the damages award that was based on
unjust enrichment. A circuit court’s decision to grant equitable relief in an action
for unjust enrichment is discretionary, Watts v. Watts, 137 Wis. 2d 506, 530-34,
405 N.W.2d 303 (1987), and we will sustain it if the circuit court “examined the
relevant facts, applied a proper standard of law, and, using a rational process,
reached a conclusion that a reasonable judge could reach.” Loy v. Bunderson, 107
Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982).
¶37 Here, the circuit court awarded Nelson a total of $3,392.50 in
damages for unjust enrichment. The court found that Nelson performed the
following services for which the Bergs had been unjustly enriched: Nelson did
7
For example, the Bergs assert that there was no evidence that they were aware of the
various repairs and upgrades that Nelson made to the farmhouse; that there was no evidence that
the Bergs viewed these repairs and upgrades as a benefit conferred upon them; and that the
damages award for these items is inconsistent with the measure of damages for unjust
enrichment.
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field work for the Bergs; he fixed their hay wagon and the bearings on their skid
loader; he replaced the doors in their pole shed; he fixed the Bergs’ tractor, their
combine, and their silo; he fixed their tires; he repaired one of the barn walls; he
removed rocks from one of the Bergs’ fields; he helped dehorn their cattle; and he
did landscaping at a rental house owned by the Bergs. The court considered the
parties’ disputes about the amount of damages that should be awarded for each of
these services, and it determined the reasonable value of these services to the
Bergs. After the court added up the total damages, it asked: “The next question is
if I’ve missed anything, is there some call that I have to make on something I
haven’t addressed here?” The Bergs’ attorney responded: “With regard to these
claims, no.”
¶38 On appeal, the Bergs contend that the trial evidence was insufficient
to satisfy some of the elements of unjust enrichment for some of these services (or
perhaps for all of the services—the Bergs do not specify). The essential elements
of unjust enrichment are: (1) that Nelson conferred a benefit upon the Bergs;
(2) appreciation or knowledge of the benefit by the Bergs; and (3) that the Bergs
accepted or retained the benefit under circumstances making it inequitable for the
Bergs to retain the benefit without payment of its value. Buckett v. Jante, 2009
WI App 55, ¶10, 316 Wis. 2d 804, 767 N.W.2d 376 (citing S & M Rotogravure
Serv., Inc. v. Baer, 77 Wis. 2d 454, 460, 252 N.W.2d 913 (1977)).
¶39 The Bergs argue that Nelson’s testimony about at least some of the
services was insufficient to establish when the Bergs learned of the benefits that
Nelson conferred upon them, and that evidence on that topic was “critical, because
[Randall] Berg had no opportunity to reject or accept such benefits unless he knew
they were a benefit made to him.” The Bergs’ appellate briefing identifies a
number of services for which, they contend, the evidence is lacking in this regard:
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“the well pump, the windows, the barn wall, doors, flooring, repairs, new toilets,
and more.”8 However, as we have explained, the circuit court awarded rent
abatement, not unjust enrichment damages, for almost all of the services identified
in this list. There is only one service identified in this list for which the court
awarded unjust enrichment damages—the court awarded Nelson $200 in unjust
enrichment damages for the barn wall repair.
¶40 The trial evidence was sufficient to satisfy Nelson’s burden to prove
that the Bergs were unjustly enriched by his repair of the barn wall. Nelson
testified that, approximately “five years ago,” Randall Berg told Nelson to fix the
wall or Berg would have to “bulldoze it down,” that Nelson fixed the wall, and
that Berg was aware of the work that Nelson did to fix the wall. From this
testimony, the circuit court could have found that the Bergs had knowledge and
appreciation of the benefit, and that they accepted and retained the benefit of the
barn wall repair under circumstances such that it would be inequitable to retain the
benefit without payment or value thereof.9
¶41 The Bergs also contend that Nelson’s evidence was insufficient to
support the unjust enrichment damages award. The measure of damages is the
value of the “benefit conferred upon the defendant, not [the value of] the
8
The Bergs also argue that there was no evidence that it was inequitable for the Bergs to
retain the benefit of those services without paying for them. They argue that “there was no
injustice here” because Nelson “conferred these benefits with the hope of repurchasing the
premises.” We reject this argument because it was for the circuit court to assess the equities of
the situation, and the court did not erroneously exercise its discretion. But in any event, the Bergs
do not persuade us that the equities favor them.
9
As for any argument that the Bergs intend to make about the other services for which
Nelson received unjust enrichment damages, we reject it as undeveloped. See State v. Pettit, 171
Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992) (declining to address undeveloped
arguments).
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No. 2022AP31
plaintiff’s loss.” Management Computer Servs., Inc. v. Hawkins, Ashe, Baptie &
Co., 206 Wis. 2d 158, 188, 557 N.W.2d 67 (1996). Unjust enrichment “damages
must be proven with reasonable certainty,” but do not require “mathematical
precision.” Id. at 189. We now consider and reject each of the Bergs’ arguments.
¶42 The Bergs argue that Nelson did not prove his damages with a
reasonable degree of certainty. They assert that Nelson merely ball-parked the
value and “rounded up to the nearest hundred dollars without providing any basis
for how he came up with that amount,” and that this methodology was inadequate.
We disagree. Nelson testified that his estimates were based on the cost of parts
and the cost of his own labor multiplied by the number of hours he expended. As
to the Bergs’ argument that Nelson’s estimates lacked precision, the Bergs
concede that mathematical precision is not required, and instead, “evidence of
damages is sufficient if it enables the jury to make a fair and reasonable
approximation.” Id. (internal citation omitted). We conclude that Nelson’s
testimony provided sufficient credible evidence on the value of his services and
repairs to sustain the circuit court’s unjust enrichment damages determination.
¶43 The Bergs also assert that the Nelson’s evidence was insufficient
because estimates of the cost of materials and labor do not account for the actual
value of the benefit to the Bergs. We reject this argument for two reasons. First,
we see no reason why the value of the benefit conferred upon the Bergs could not
be determined by calculating how much they would have paid to have another
person perform those services. Second, the Bergs forfeited this argument by not
raising it in the circuit court. At trial, the court gave the Bergs the opportunity to
dispute the value of each service Nelson testified that he performed, and the Bergs
never disputed the validity of Nelson’s valuation methodology. Nor did the Bergs
raise any such issue in their closing argument, or in any post-verdict brief. When
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No. 2022AP31
a party fails to raise an issue before the circuit court, the party generally forfeits
that argument on appeal. See Schill v. Wisconsin Rapids Sch. Dist., 2010 WI 86,
¶45 & n.21, 327 Wis. 2d 572, 786 N.W.2d 177. The forfeiture rule is especially
warranted in a situation like this, in which Nelson would have had the opportunity
to present additional factual evidence or arguments had the Bergs raised this
argument in the circuit court. See Gruber v. Village of N. Fond du Lac, 2003 WI
App 217, ¶27, 267 Wis. 2d 368, 671 N.W.2d 69.
¶44 Finally, the Bergs claim that Nelson failed to present any evidence
of the “post-installation depreciation” of any improvements that he made. To the
extent that the Bergs are arguing that they are entitled to an offset because the
value of the work Nelson performed has diminished over time, they cite no
authority to support the proposition that restitution is measured at the time of trial,
as opposed to the time the benefit is conferred. See Pettit, 171 Wis. 2d at 647
(declining to address undeveloped arguments).
CONCLUSION
¶45 For the forgoing reasons, we affirm the judgments of the circuit
court. No costs awarded to any party.
By the Court.—Judgments affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
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