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COURT OF APPEALS
NOTICE
DECISION
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.
December 23, 2003
A party may file with the Supreme Court a
                                                                                              Cornelia G. Clark                                                      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.
                                                                                                                                                                     Cir. Ct. No.   02-SC-657
Appeal No.                                                                                    03-1023
STATE OF WISCONSIN                                                                                                                                                   IN COURT OF APPEALS
                                                                                                                                                                     DISTRICT II
AMIR MAHMOUD,
PLAINTIFF-RESPONDENT,
V.
MICHAEL ORTIZ,
DEFENDANT-APPELLANT.
APPEAL  from a judgment and an order  of  the circuit court for
Ozaukee County:   PAUL V. MALLOY, Judge.   Affirmed.
¶1                                                                                            BROWN, J.1        This appeal is basically a sufficiency of evidence
review of a small claims court judgment awarding damages to Amir Mahmoud for
Michael Ortiz’s breach of contract based on the trial court’s finding that Ortiz
1  This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(a) (2001-02).
All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.




No.   03-1023
failed to rebuild two car engines as promised.   We conclude that the trial court’s
factual findings are supported by the record and are not clearly erroneous.   We
also reject Ortiz’s assertion that the trial court judge was biased and his claim that
newly discovered evidence should have afforded him a new trial.   We affirm.
¶2                                                                                         Ortiz states that the correct standard of review for insufficiency of
evidence is de novo.   This is not entirely correct.   De novo review is proper when
the appellate court is asked to review if there is enough evidence to meet the
burden of proof for establishing a prima facie case.   See Brandt v. Brandt, 145
Wis. 2d 394, 409, 427 N.W.2d 126 (Ct. App. 1988).   However, in situations where
the appellate court is asked to assess the credibility and weight that the trial court
afforded each witness, the appropriate standard of review is whether the findings
of fact made by the trial court are clearly erroneous.   See Tourtillott v. Ormson
Corp., 190 Wis. 2d 291, 294-95, 526 N.W.2d 515 (Ct. App. 1994).
¶3                                                                                         In  the  postjudgment  motions,  it  is  true  that  Ortiz  couched  his
sufficiency of evidence argument in terms of whether Mahmoud had provided
sufficient evidence to meet his prima facie burden of proof.   This is evidenced by
the fact that Ortiz’s counsel explained how the crux of the issue was whether a
specialized  engine  had  been repaired and argued that whether  an engine  was
repaired required an expert opinion.   Because Mahmoud did not provide an expert,
Ortiz asserted that Mahmoud had failed to meet his burden of proof.   Had that
been the issue on appeal, our standard of review would have been de novo.
¶4                                                                                         In  his  appellate  brief-in-chief,  however,  Ortiz  has  apparently
abandoned  the                                                                             “lack  of  an  expert”  argument  because  that  argument  is  not
mentioned  at  all.  Rather,  Ortiz  takes  issue  with  the  trial  court’s  choice  of
Mahmoud’s version of the events rather than his.   Thus, this court reads Ortiz’s
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No.   03-1023
brief  to  be  making  an  argument  focusing  on  the  trial  court’s  credibility
determinations.    Therefore, the standard of review is whether the trial court’s
credibility call is clearly erroneous.
¶5                                                                                          Bearing this standard of review in mind, our analysis will focus upon
the credibility determinations of the trial court.   The trial court first concluded that
Mahmoud contracted with Ortiz for the repair of more than one engine.   The trial
court then found that for a long and unreasonable period of time, Ortiz completed
little to no actual work on the vehicles.   Specifically, the court determined that
“when somebody holds themself out as a mechanic to rebuild an engine, albeit this
looks like a specialized engine, there should be a reasonable period of time to get
that done, and it wasn’t done here.”   The court also found that, when Ortiz claimed
to be working on the vehicles, Mahmoud paid Ortiz and paid for parts for repair of
the vehicles.   As to this, the court stated:
And then just to dump the parts and the vehicle and say get
it out [of] here, to me strains the credibility of the whole
case.   And to charge storage fees and pickup fees for parts
and things of that nature, I basically find that there was a
breach of the contract to repair the vehicle.
Finally, the court concluded that the  work  completed by Ortiz had no value.
Based on these findings, the court found Ortiz in breach and awarded Mahmoud
$4655.41,  which  included  the  amounts  Mahmoud  had  paid  Ortiz  as  a  down
payment and for the parts.
¶6                                                                                          Ortiz argues that these factual findings of the court and the damages
based on these findings are not supported by the record.   Ortiz asserts that he and
Mahmoud only contracted to rebuild one engine despite Mahmoud’s assertion that
the contract was for two engines.   He contends that the testimony presented at the
hearing on the breach of contract issue supports his assertion.   He further argues
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No.   03-1023
that  the  work  he  had  done  on  the  engines  had  value  and,  consequently,  the
damages  award  cannot  be  sustained.                                                     Finally,  he  faults  the  trial  court  for
preferring Mahmoud’s account over his and claims that Mahmoud’s testimony
“was at times clearly evasive, internally contradictory, or contradicted by his own
witnesses.”
¶7                                                                                         We have read the record before us in its entirety and are confident
that it supports the facts found and the inferences drawn by the trial court.   It is
well  established  that  the  weight  of  evidence  and  credibility  of  witnesses  are
matters for the trial court and where more than one inference can be drawn from
the evidence, we are obliged on review to accept the one drawn by the trier of fact.
Holbrook v. Holbrook, 103 Wis. 2d 327, 334, 309 N.W.2d 343 (Ct. App. 1981).
Simply  put,  the  trial  court  believed  Mahmoud’s  version  of  the  events  and
disbelieved Ortiz.   That is a credibility call by the trial court that we are not in a
position to disturb.
¶8                                                                                         Correlatively, Ortiz argues that the small claims court was biased
against him and, as a result, a new trial is warranted.    The problem with this
argument is that it is raised for the first time on appeal.   Ortiz had an obligation to
first ask the trial court to vacate the judgment on the basis that its decision was the
result  of  bias.  See  WIS.  STAT.                                                        § 757.19(2)(g).     While  Ortiz  did  bring  a
postjudgment motion alleging newly discovered evidence, he never accused the
judge of bias.   This is important because the question of bias he has raised has a
subjective component.   The subjective element in para. (2)(g) is based purely on
the judge’s own belief in his or her ability to act impartially.   See State v. Am. TV
& Appliance, 151 Wis. 2d 175, 182, 443 N.W.2d 662 (1989).   If the trial judge
subjectively believes he or she is unable to act impartially then the judge must
disqualify himself or herself.   See   id.   Because there was no motion to vacate, the
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No.   03-1023
trial judge never had a chance to address the claim of bias.   Therefore, we have no
record concerning the subjective component.   We hold that the issue is waived.
¶9                                                                                         Alternatively, even addressing the subject, Ortiz complains about the
way the court interjected itself into the proceedings and, at one point, even took
over questioning for Ortiz.   But this was a small claims trial where both parties
were pro se and it is evident from reading the record that the trial court was
concerned about keeping order and decorum in the courtroom.   This is borne out
by the comments of the trial court at the postjudgment proceeding, where Ortiz
had counsel representing him.   The trial court stated:
This was a mess of a trial.   People talking over each other,
people   yelling   at   each   other,   people   essentially
misbehaving in court.    I might as well had a black and
white referee shirt and whistle.
¶10    The  court  has  not  only  the  right,  but  also  the  responsibility  to
maintain control of the courtroom.   We have reviewed the record and can find
nothing that shows bias on the part of the trial court.   If anything, it shows that the
court was even-handed in its admonitions.   It admonished both parties. That the
trial court finally came down on Mahmoud’s side when making the credibility call
does not mean that the trial court was biased against Ortiz.
¶11    Ortiz’s  final  claim  is  that  there  was  newly  discovered  evidence
which would have materially affected the result of the trial and the trial court
erroneously exercised its discretion when it failed to order a new trial on the basis
of this evidence.   During the postjudgment motion, Ortiz submitted postings that
were reportedly made by Mahmoud on the Internet at Rxclub.com.   Ortiz claimed
that the postings showed how Mahmoud was attempting to sell the same used
motor and parts that Mahmoud claimed during the small claims trial were not
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No.   03-1023
useable.   Ortiz asserted that, in the postings, Mahmoud claimed that the motor had
been rebuilt and was in “fine, functioning shape or nearly completely functioning
shape.”   Ortiz further alerted the court to postings showing how Mahmoud was
trying to sell the same gasket and seals that, in Ortiz’s view, corresponded with the
gasket and seals that Mahmoud claimed at trial were not useable.   Ortiz argued
that this new evidence damages Mahmoud’s credibility to such an extent that, if
presented at a new trial, it would materially affect the result.
¶12    The trial court requested a response from Mahmoud who said that
the parts referred to in the Internet postings were “actually a friend’s parts; they’re
not mine.   I still have the parts in the garage to this day, sir.”
¶13    After hearing from both parties, the trial court denied the motion.
The trial court specifically referred to Mahmoud’s response that the items listed on
the Internet were not the parts at issue and ruled that, in the court’s view, there was
no fraud on the court.
¶14    Newly  discovered  evidence  which  serves  only  to  impeach  the
credibility of a witness who testified at trial is insufficient to warrant a new trial.
See, e.g., Simos v. State, 53 Wis. 2d 493, 499, 192 N.W.2d 877 (1972); State v.
Kimpel,  153 Wis.  2d  697,  700-01,  451 N.W.2d  790  (Ct. App.  1989).    This is
exactly what Ortiz is trying to do.   The law does not allow it.
By the Court. —Judgment and order affirmed.
                                                                                          This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                 (b)4.
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