Noll v. Dimicelli's, Inc.
| Decision Date | 25 October 1983 |
| Docket Number | No. 82-2347,82-2347 |
| Citation | 115 Wis.2d 641,340 N.W.2d 575 |
| Parties | Drew C. NOLL, Plaintiff-Respondent, v. DIMICELI'S, INC., Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
Edward R. Cameron, Milwaukee, for defendant-appellant.
Harold Harris, Milwaukee, for plaintiff-respondent.
Before WEDEMEYER, P.J., and DECKER and BROWN, JJ.
Dimiceli's, Inc., (Dimiceli's) appeals from a judgment entered November 26, 1982, wherein the trial court awarded Drew C. Noll (Noll) $9,565.99 as damages. On appeal Dimiceli's argues that the trial court made the following errors: (1) finding that Michael Volpe (Volpe) was the agent of Dimiceli's; (2) granting damages based on the theory of quantum meruit; and (3) awarding Noll interest on the judgment at the rate of seven percent from May 1, 1980, to November 26, 1982, the date the judgment was entered. Because we conclude that the trial court's finding that Volpe was Dimiceli's agent is not clearly erroneous, we affirm issues one and two; however, because the legal rate of prejudgment interest is only five percent, we modify that part of the judgment awarding Noll interest at the rate of seven percent from May 1, 1980, to November 26, 1982.
On August 11, 1977, Noll met Volpe at the "Talk of the Town" tavern. At this meeting, Volpe informed Noll that he was managing the tavern for Dimiceli's. Volpe told Noll that he needed some money for remodeling work and was looking for someone to do it. Noll advised Volpe that he was available to do the work. An agreement was reached wherein Noll invested $5,000 in return for twenty percent of the net profits of the tavern. Noll did the remodeling work, but never received any of the profits of business nor a return of his $5,000 investment. Further facts will be discussed as are necessary for the resolutions of the issues.
Dimiceli's argues that the trial court erred by finding that Volpe was its agent. We disagree.
Dimiceli's states that a trial court's determination regarding whether a principal-agent relationship exists is a question of law to which we need not give any deference. On the contrary, the determination of whether a principal-agent relationship exists is a question of fact for the trier-of-fact. The question turns on facts concerning the understanding between the alleged principal and agent. See Soczka v. Rechner 73 Wis.2d 157, 163, 242 N.W.2d 910, 913 (1976).
On review of a factual determination made by a trial court without a jury, an appellate court will not reverse unless the finding is clearly erroneous. See sec. 805.17(2), Stats. While we now apply the "clearly erroneous" test as our standard of review for findings of fact made by a trial court without a jury, cases which apply the "great weight and clear preponderance" test to the same situation may be referred to for an explanation of this standard of review because the two tests in this state are essentially the same. Robertson-Ryan & Associates v. Pohlhammer, 112 Wis.2d 583, 591 n. *, 334 N.W.2d 246, 251 n. * (1983) (Abrahamson, J., dissenting). In applying the "great weight and clear preponderance" test our supreme court as stated:
The evidence supporting the findings of the trial court need not in itself constitute the great weight or clear preponderance...
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Jacobs v. Major
...at the mall stores. These findings are amply supported by the record and are not clearly erroneous. Noll v. Dimiceli's, Inc., 115 Wis.2d 641, 643, 340 N.W.2d 575, 577 (Ct.App.1983). Some state courts have labeled shopping malls the functional equivalent of public property. We cannot go that......
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...can be drawn from the credible evidence, this court must accept the inference drawn by the trial court. Noll v. Dimiceli's, Inc., 115 Wis.2d 641, 644, 340 N.W.2d 575 (Ct.App.1983). The trial court's credibility conclusion in this case finds support in the ¶ 36 Szabo testified that she conta......
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...can be drawn from the credible evidence, this court must accept the inference drawn by the trial court. Noll v. Dimiceli's, Inc., 115 Wis.2d 641, 644, 340 N.W.2d 575 (Ct. App.1983). We must search the record for evidence to support the findings that the trial court made, not for findings th......