### COURT OF APPEALS DECISION DATED AND FILED September 14, 2021

Sheila T. Reiff Clerk of Court of Appeals NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS
. S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2019AP1846 Cir. Ct. No. 2018SC1256
STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

R OCK & T AIT E XTERIORS , LLC,

P LAINTIFF
- R ESPONDENT ,

V
.

M ALLORYS , LLC, D REAMSTRUCTURE D ESIGN B UILD , LLC
AND J ASON J OHNSON ,

D EFENDANTS
- A PPELLANTS
.

APPEAL from a judgment of the circuit court for Chippewa County:

STEVEN H. GIBBS , Judge. Affirmed

.
¶ 1 STARK, P.J. 1 The defendants 2 appeal from a small claims judgment in the amount of $10, 559.50 entered in favor of Rock & Tait

1 This appeal is decided by one judge pursuant to W IS

. S TAT

. § 752.31(2) (2019

- 20). All references to the Wisconsin Statutes are to the 2019

- 20 version unless otherwise noted.No. 2019AP1846

2 Exteriors
, LLC
, ( Rock & Tait ) against all d efendants, jointly and severally, for roofing work Rock & Tait completed at Mallory’s Restaurant and Rooftop Bar 3
(the Restaurant) in Hudson, W isconsin

. The d efendants argue that the circuit court erred by pierc ing “the corporate veil” of Dreamstructure DesignBuild, L L C (Dr eamstructur e) and holding Jason Johnson personally liable for the amount due.

We conclude that the defendants have forfeited this argument and their remaining
arguments are undeveloped. Consequently, we affirm.

BACKGROUND

¶ 2 A t a bench trial to the circuit court at which J ason represented all of

the defendants, evidence showed that i n early 2016 Rock & Tait entered into two separate contracts to complete roofing work at the R estaurant

. Both contract s
list ed the customer contact as “ Jeremiah Johnson (Dream Structure’s TPO Repairs

Hudson ) Dream Structures

— Johnson
, Jeremiah

. ” However, “ Jason Johnson ”

2 The n otice of a ppeal identifies the names of the parties fi l ing this appeal as Mallory s , LLC
, and “ Jason Johnson ( an individual )

. ” The appellant’s brief states it is filed on behalf of defendant

- appellant Jason Johnson, and all of its arguments relate solely to his claim that the circuit court erred in holding him personally liable for the judgment. There is handwriting on the

cover of the brief, however , stating that the brief is filed on behalf of “ defendant

- appellants

. ” Additionally, the brief’s statement of the issues describes “Dreamstructure” as an appellant. The relief sought by the appellant(s) is reversal of the entire judg ment. If that is not ordered
, however, the appellant(s) ask that we reverse the judgment to the extent it imposes liability on Mallorys
, LLC, and personal liability on Jason Johnson

. Rock & Tait argue s that Jason Johnson, individually, is the appellant.

For the purposes of our opinion, we assume that all of the defendants have appeal ed the circuit court’s judgment

. F o r the remainder of this opinion we refer to the appellants collectively

as “ the defendants ” and to Jason Johnson individually as “J ason ” unless otherwise noted.

3 For clarity, a lthough the name of the restaurant wher e the roofing work took place includes an apostrophe in the word “Mallory’s
, ” the name of the party to this case

— Mallorys, LLC
, — does not contain that same possessive punctuati on in its spelling.No. 2019AP1846

3 signed each contrac t

. 4 The contract s did not indicat e whether Jason signed the

documents as an agent of
, or on behalf of
, a ny corporation

.
¶ 3 J ason testified that t he Restaurant is owned by Mallorys
, LLC, (Mallo rys) and that Dreamstructure was the general contractor for the construction work completed at the Restaurant

. J ason further testified that he had no ownership

interest in Mallorys or Dreamstructure
, but that his wife owned Mallorys and he

was an officer of Dreamstructure. Rock & Tait was paid $12,000 b y CM M Holding s , Inc., (another company owned by J ason ) for some of the work it completed
, but Jason refused to pay the remaining amount due, alleging defect s in

the roofing work.

¶ 4 The sole issue at trial was whether Rock & Tait’s work was

defective

. T he circuit court found that it was not defective
, and it entered judgment in favor of Rock & Tait against all of the defendants, including J ason personally, for the amount claimed due in the complaint. The court found that the

defendant s ’ failure to pay the balance due breached the parties’ contracts; that it was not clear which parties entered into the contracts; and that all three defendants

be nefitted from Rock & Tait’s work. G iven Jason ’s testimony that “we” hired

them
, t he court found that the work was done at the request of all of the

defendants

. The court further found that all of the defendants would be unjustly

enriched if they were not ordered to pay the remaining amount due, and that Rock

4 George Tait, an owner of Rock & Tait
, testified that although Jeremiah Johnson contacted Rock & Tait to perform work at the Restaurant
, Jason Johnson was in charge of the contract ing process and represented himself as the owner of the Restaurant

. Tait further testified that Jeremiah needed Jason ’s permission to discuss the contract s , and that although Jeremi ah was listed as the customer at the head of the invoice, Rock & Tait was required to obt ain Jason ’s signature, not Jeremiah’s , to execute the contract s

.No. 2019AP1846

4 & Tait was entitled to payment for its work under the doctrine of quantum meruit.

The defendants now appeal.

DISCUSSION

¶ 5 The d efendants do not contend that the circuit court erred in determining that they breached the contracts
, that R ock & Tait’s work was not
defective
, and that they owed $ 10, 559.50 in damages

. They i nstead argue for the

first time on appeal
, that the court erred by pierc ing Dreamstructure’s corporate
veil and holding Jason , or , in the alternative, J ason and Mallory s liable for the small claims judgment

.
¶ 6 Rock & Tait contends that the defendants have forfeited this argument by failing t o raise it in the ci rcuit court

. See State Farm Mut. Auto Ins.

Co. v. Hunt , 2014 WI App 115, ¶32, 358 Wis. 2d 379, 856 N.W.2d 633 (citation omitted)

. Rock & Tait argues that its c omplaint alleged that all three defendants were responsible to pay the amount due under the contracts, but it did not allege a claim seeking to hold Jason , or Jason and Mallorys
, liable by seeking to pierc e
Dreamstructure’s corporate veil

. Rock & Tait asserts that Jason and Mallory s

were each named as defendants because Roc k & Tait sought to impose liability on

them for the contracts Jason en tered into
, and under which all three of the

defendants benefitted. Rock & Tait further correctly argue s that the court did not

find that Dreamstructure’s corporate veil should be pierced, and it instead ordered all three defendants liable under equitable theories that the defendants do not

address in their brief in chief.

¶ 7 In reply, the d efendants acknowledge that they did not raise the issue of pier cing the corporate veil in the circuit court. They nonetheless argue that we have the authority to consider this issue for the fi rst time on appeal as waiver is aNo. 2019AP1846

5 rule of judicial administration and does not limit our power to address the issue. 5

The def endants assert , without any developed argument, that this case is the “quintessential” example of when a new issue must be examined on appeal.

¶ 8 We conclude that the defendants forfeited their argument that the circuit court improperly he ld J ason and Mallorys liable for R ock & Tait’s judgment by piercing Drea m structure’s corporate veil. Although the defendants

urge us to ignore the forfeiture rule and exercise our discretion to consider t he
issue, we decline to do so.

¶ 9 W hether a contracting party has notice of the principal’s corporate

status is a question of fact

. See Benjamin Plumbing, Inc. v. Barnes
, 162 Wis. 2d
837, 852 , 470 N.W.2d 888 (1991). We review the circuit court’s decision as to whether the corporate ve il should be pierced for an erroneous exercise of

discretion. Consumer ’

s Co

- op. of Walworth C n ty. v. Olsen , 142 Wi s. 2d 465,
472, 419 N.W.2d 211 (1988)

. The d efendants had the burden of proof on this

issue

. See Benjamin Plumbing
, 162 Wis. 2d at 851

. The defendants did not

argue to the circuit court that there was no factual or legal basis to pierce

Dreamstructure’s co rporate veil

. Consequently, the court did not address the

issue. Under these circumstances, we decline to exercise our authority to address
the defendants’ unpreserved argument that the court erred by piercing Dreamstructure’s corporate veil

.

5 Although the defendants mistakenly refer to this legal concept as “waiver,” our rule that we do not address arguments raised for the first time on appeal is actually the rule of “forfeiture.” See State v. Counihan , 2020 WI 12, ¶¶25

- 27, 390 Wis. 2d 172, 938 N.W.2d 530. Waiver is the intentional relinquishment of a known right, while forfeiture is the failure to make a timely assertion of that right and develop it. See State v. Ndina , 2009 WI 21, ¶ 29, 315 Wis. 2d 653, 761 N. W.2d 612

.No. 2019AP1846

6 ¶ 10 The d efendants raise for the first time in their reply brief new challenges to the circuit court ’ s equitable decision
, inclu ding that Jason was caught off guard by the court’s decision to hold him personally liable for the debt

owed to Rock & Tait. We again decline to address arguments that have not first

been raised before the circuit court

. See A.O. Smith Corp. v. Allstate Ins. Cos.
, 222 Wis. 2d 475, 492

- 93, 588 N.W.2d 285 (Ct. App. 1998)

.
¶ 11 The defendants further argue that the circuit court did not allow

Jason to present his entire case due to time constraints, and that Jason was “belittled” by the judge

. The defendants’ exact legal argument , however, is

unclear and undeveloped , and we decline to consider it. See State v. Petitt , 171

Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992)

. Jason fails to specify what evidence he would have presen ted if he received more time, and he provides no legal authori ty in support of this claim . In any event , o ur review of the transcript

reveals no improper comments by the court

. We therefore affirm.

By the Court.

— Judgment affirmed.

This opinion will not be publis hed. See W IS

. S TAT

. R ULE 809.23(1)(b)4.No. 2019AP1846