Treyton Seth Gold v. Nolan Koepp

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.
June 11, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP2414 Cir. Ct. No. 2024SC1077

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

TREYTON SETH GOLD AND ARTIE GOLD,

PLAINTIFFS-RESPONDENTS,

V.

NOLAN KOEPP,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Fond du Lac
County: ANDREW J. CHRISTENSON, Judge. Affirmed.

¶1 GUNDRUM, P.J.1 Nolan Koepp, pro se, appeals a judgment
entered after a court trial. Koepp asserts the circuit court erred when it found he

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2023-24). All
references to the Wisconsin Statutes are to the 2023-24 version.
No. 2024AP2414

sold Treyton and Artie Gold, both pro se, a motor with an implied warranty of
merchantability that did not satisfy the warranty and awarded them $4,420.08. For
the following reasons, we affirm.

Background

¶2 Koepp sold Treyton and his father, Artie, a used boat with a
20-year-old motor on it. After purchasing the boat, Treyton learned that the motor
had a hole in it and was thus losing substantial amounts of oil and would not
function properly. Treyton and Artie brought this small claims action seeking
damages of $4,420.08, the estimated cost to repair the motor. A court trial was
held at which the parties presented the following relevant evidence.

¶3 Treyton testified that when he saw Koepp’s boat for sale on
Facebook Marketplace for $15,000—“which included the boat, the motor, and two
single man layout boats”—he pursued the opportunity. Prior to agreeing to
purchase the boat and motor, Treyton viewed them twice. The first time, Koepp
told Treyton “that the motor had no issues other than blowing a fuse, which he
replaced, and only needed a tune-up, which included like the oil, filter, seals, just
basic maintenance…. [H]e told me … it had a faulty key switch, but that was a
pretty easy repair.”

¶4 The second time, Koepp again told Treyton, who was accompanied
by Artie, “that the motor had no issues, it just needed the key switch done and just
a basic tune-up.” Treyton told Koepp “that I did have another motor that I could
possibly put on [the boat], assuming that we went through with the sale, I would
just put that motor on it to make the boat go faster and then the motor I would get
from him I would just resell.” That night, Treyton offered Koepp $8,000, which
Koepp accepted.

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¶5 After picking up the boat, Treyton took it to Riggs Marine to store it
for winter and complete a tune-up on the motor. After storing the boat for a
couple of weeks, Riggs Marine tuned up the motor and replaced minor items.
When “they put oil in it[,] all the oil drained out on the floor…. They asked for
permission to further dive into the motor, which we gave them permission.” Days
later, Riggs Marine told Treyton

that the motor was pretty much shot and that there was a
hole punched through the powerhead that someone had
tried to cover up with epoxy, that the epoxy had failed. In
addition …, he said that because of the hole being there and
that it had failed the motor’s pretty much running with no
oil and that’s why there was also some valves that were
chewed up and destroyed.

Riggs Marine informed Treyton that repairing the motor would cost $4,420.08.

¶6 Treyton contacted Koepp. Koepp “said that he had no idea about
[the hole] and that he … always had his work done by Skipper’s Choice in Green
Bay and that we [Treyton and Artie] should call Skipper’s Choice and that it
wasn’t his issue and that he wanted us to not contact him anymore.”

¶7 Koepp cross-examined Treyton, asking, “[D]id I not tell you that the
boat was using oil and I was adding oil to it on a couple trips?” Treyton
responded, “I don’t recall you saying that, I just remember you saying that you did
an oil change every year ….” Responding to questioning by Koepp about “a light
or … a beep to the motor when it’s low on oil” and Koepp’s assertion that he had
told Treyton “it was using oil,” Treyton stated, “You told me about the beep, but
… I’m pretty sure you didn’t say anything about … oil.” Treyton stated he had
been planning to resell the motor “for probably around four-grand.”

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¶8 Koepp asked Treyton, “[D]id I not say it was [an] as is sale when I
sold it to you?” Treyton responded, “When we were talking in person you never
said that.” Koepp came back with, “Oh, I’m pretty sure every sale in Wisconsin is
as is, and I did say that,” to which Treyton responded, “I guess I—if you did, I
never heard it, and you never said it more than once.”

¶9 Artie testified next. Treyton asked his father, “While we were
looking at the boat, … did you ever hear [Koepp] say that this was an as is sale?”
Artie responded, “No.” When Treyton asked, “While we were looking at the boat,
did he tell you that the beep was caused from low oil on the motor?” Artie
responded, “I didn’t hear that.” Artie testified that he “heard you guys talking that
you could [put a different motor on the boat] because you were talking about the
speed, [Koepp] said it was a little slower, slower boat, but that was it.” Artie also
said he agreed with all of Treyton’s testimony.

¶10 On cross-examination, when Koepp asked Artie about “beep
driving” related to the motor, Artie stated, “[T]he one thing that I remember is you
were telling us about the fuse blown, and you had the kicker, and a client got out
and found the fuse was blown ….” Koepp then stated, “I did tell you the only
time the boat has ever let me down where I had to use the kicker to come in was
the time that the fuse blown, otherwise, I’ve never had [to] use[] the kicker ever on
the boat.” Artie responded, “I agree with that, the one time the boat failed was …
a fuse.”

¶11 Koepp was the final witness to testify. He directed the circuit
court’s attention to page 8 of his answer, which the court stated it had read, related
to “the value.” That page purports to show the opinions of “J.D. Power Valuation

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Services” staff as to the value of the motor: a “Used Trade-In” value of $1,770, an
“Average Retail” value of $2,475, and a “High Retail” value of $2,980.

¶12 Koepp also submitted to the court a copy of an email purportedly
from his mechanic. Koepp summarized the email as indicating his mechanic has
“never seen an issue. He installed the motor, he serviced it, he winterized it, he’s
never done any major maintenance to it, as I was telling them.” This email from
the named “[r]etired marine technician,” which the court stated it had read,
indicated the technician had inspected and tested the engine after it had arrived
“on a skid” approximately eight years earlier, and the engine “ran well.” He
installed the motor onto Koepp’s boat at that time and gave the boat a “sea trial.”
The boat “passed our water test,” and the technician “sent it on its way.” The
technician added that he “saw the boat over the years of service for minor
maintenance,” and stated, “As far as I know it served [Koepp] well in his guide
service.”

¶13 Koepp testified that “the motor worked fine for me for eight years
and that hole in it that was epox[i]ed was before my time…. I used the boat the
last day of duck season. I didn’t sell it hiding anything. I told them everything I
knew about it. It was all in good faith.”

¶14 Apparently referring to the J.D. Power Valuation Services’ opinions,
Koepp stated,

Used trade-in was 1,700, average retail is 2,400, and high
retail is 29-. Now, he thinks he would get 4,000 for it, but
the dealership—we did tell them that I painted the whole
motor gray, so all three dealerships we asked would not
take—would not even take it on trade or anything like that
because it is painted gray. So the only person he could
really sell the boat to would be another layout hunter.

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… It was burning oil, so I would put that in the used
trade-in or lowest, 1,700, but because it’s painted gray
it’s—it would be worth even less than that, like it would be
worth $1,000 for parts, what the dealership told me. So
when he left my house, because it was painted gray, it was
worth 1,000 bucks.

.…

So 1,700, but it was worth parts when it left my house
and it’s still worth parts now. I was asking 15-, I came
down three-grand without the layouts, and he offered me
eight, and I said because of the motor, so that’s where I was
at.

Koepp added, “He … never did spend the four-grand to get the motor fixed….
[H]e’s going to have to sell it for parts. It was worth [$]1,000 leaving my house,
and it’s worth [$]1,000 now for whoever he can sell it to for parts.”

¶15 Koepp stated, “I did tell him it was as is…. I wasn’t hiding
anything…. I was being as honest as I could. And I don’t know why he thinks he
can get four-grand for the motor if he sold it.” Koepp continued, “He told me he
had another motor that he was thinking about putting on. I did recommend that
because the 90-horse is a little under power for it and only goes about 20 miles an
hour. He did say he probably would put it on and he did put it on.”

¶16 Koepp’s testimony continued: “And I did tell him it was burning oil
and I was adding oil every week. Every time the light would go off on me on a
rough day I would get home and I would put oil in it. And I checked the oil; there
was always oil; I always kept oil in the motor; it never ran out of oil.” Koepp
stated he used the boat “the whole season without any problems,” including “the
very last day of duck season on December 12th.” Koepp then confirmed that the
circuit court had reviewed his answer, which includes a photo that Koepp stated
showed “the boat [in use] on December 11th, the last two days of duck season.”

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¶17 Koepp stated he “d[id]n’t know if I paid two-grand, three-grand,
four-grand for [the motor],” but that he bought it “on a skid, I put it in the back of
my truck and dropped it off at [the technician’s] with the boat and he put it on for
me. Ran it, test-drove it on the river, no problems. It worked fine for eight years
with just winterizing it and the oil changes.” Koepp continued,

So I did tell him I … never changed the impeller or
nothing on the motor in eight years. I said yes, a tune-up or
something like that I would for sure do, because I haven’t
done anything to the motor besides oil changes and
winterizing it every year.

I used it 30 days the last eight years, 30 days of duck
season the last eight years in a row, and it’s never let me
down besides the one day it blew a fuse and I couldn’t
figure that out. But that’s why there was a kicker on the
boat to get in. That’s the only time I ever had to use the
kicker to get in. I showed them where the fuse was.

… I was being as honest as I can when I sold it. And I
believe the motor is only worth $1,000 for parts because
it’s painted gray. Nobody’s going to buy it from you and
put it on their pontoon. And I did not never say it was in
excellent high retail or excellent condition, never
mentioned that once. But it was painted gray and all
scratched up, and I don’t know, it even had a couple BB
holes in it, so I don’t know how you’re going to resell it for
four-grand. And it doesn’t pay to get it fixed because it’s
not worth four-grand, as they didn’t get it fixed.

Koepp stated: “I’m sure it had a lot of hours on it. It was not high retail, it was not
three-grand, it was used trade-in value or way less because it was painted gray. So
suing me for [$]4,000 I think is ridiculous.”

¶18 The circuit court asked Koepp, “So the [$]8,000 was for the boat and
the motor,” to which Koepp responded,

Yes, when I sold it to him, and the kicker and …
everything else that was on the boat….

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I believe the boat, a 20-foot boat, big aluminum like
that, I mean scrap value of aluminum is worth a decent
amount. I mean, sue me for four-grand, then you get the
whole boat and everything for three-grand is kind of
ridiculous, because I would take it back for that….

¶19 During cross-examination, Koepp testified that the motor was sold
new in 2004 for approximately $8,000. He added that now “[t]he motor is 20
years old and lost way more than 50 percent of its value, especially because it had
BB holes in it and it’s painted gray. You’re not going to sell it to someone to put
on their pontoon boat for four-grand.”

¶20 Following his testimony, Koepp asked the circuit court if Wisconsin
“is an as is sale or state.” In response, the court referred to and read aloud WIS.
STAT. §§ 402.315 and 402.316(3)(a) and (b).

¶21 In rebuttal, Treyton testified that

When we were looking at the boat with him … he did say
that … he’s had to put oil in it, but I mean all motors you
do. He never stated that he had to put oil in it after every
time that he uses it. I guess with him saying that he had to
put oil in it all the time, that kind of already says that the
hole was there, considering that when … our mechanics put
the oil in and it ran right out the bottom onto the floor.

Treyton pointed out that the “bill of sale,” which was attached to the complaint,
“does not say ‘as is.’” He explained that he himself took the photos of the motor
showing the hole in the bottom of it, which photos were submitted as exhibits. He
explained that he took the photos after he had Riggs Marine inspect the motor
because

the hole in the powerhead … can’t [be seen] just from
taking the cover off the motor, it’s deep in there. That’s
why we’re, however much, $1,000 into the labor in finding
the issue is because of how deep it was in the motor, so
that’s why we couldn’t see it until someone spent hours

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taking it apart, and then that’s when they found it and told
me, I said I’ll get over there, took pictures of it.

Treyton suggested the epoxy “was on there to cover” up the hole, prompting
Koepp to respond that “[t]his had to be before I bought the motor and it was deep
in.” Treyton stated, “Could be,” and Koepp then stated, “Motor has never been
taken apart since I owned it.” The circuit court asked Treyton, “Can I assume that
epoxy is not a normal way to patch that type of hole?” Treyton responded, “Not
even a little bit, it’s pretty redneck rigged up.”

¶22 Treyton and Artie made no other statements or argument to the
circuit court. Koepp emphasized that he had told Treyton the sale was “as is,”
further commenting, “I guess I’m going to have to write that on every bill of sale
from now on for sure.” He stated that he “gave no warranty .… I told him
everything I knew. And the boat ran the last day of duck season. They bought it
two weeks later after duck season and that was the end of it.”

¶23 Ruling in Treyton and Artie’s favor, the circuit court stated that

this issue turns on what the written bill of sale says, and it
doesn’t have language like “as is” or “with all faults.”

You had the boat and the motor for eight years. I’m
going to find that there was a breach of the implied
warranty. I am going to find that the plaintiff[s have] met
[their] burden and the hole in the motor that was patched
with epoxy was not disclosed, [and] it was not discoverable
prior to the transaction.

The court awarded Treyton and Artie the $4,420.08 they requested in the
complaint.

¶24 Koepp appeals.

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Discussion

¶25 When a matter is tried to the circuit court, as in this case, “the weight
of the testimony and the credibility of the witnesses are matters peculiarly within
the province of the [circuit] court acting as the trier of fact” because the court has a
superior opportunity “to observe the demeanor of witnesses and to gauge the
persuasiveness of their testimony.” Tang v. C.A.R.S. Prot. Plus, Inc., 2007 WI
App 134, ¶19, 301 Wis. 2d 752, 734 N.W.2d 169 (citations omitted). Thus, we
will not set aside a circuit court’s findings of fact unless they are clearly
erroneous. WIS. STAT. § 805.17(2). We review de novo the court’s application of
those facts to a statute. See Hefty v. Strickhouser, 2008 WI 96, ¶27, 312 Wis. 2d
530, 752 N.W.2d 820.

¶26 Ruling in Treyton and Artie’s favor, the circuit court looked to WIS.
STAT. §§ 402.315 and 402.316. Those statutes provide in relevant part as follows:

402.315 Implied warranty: fitness for particular
purpose. Where the seller at the time of contracting has
reason to know any particular purpose for which the goods
are required and that the buyer is relying on the seller’s
skill or judgment to select or furnish suitable goods, there is
unless excluded or modified under [WIS. STAT. §] 402.316
an implied warranty that the goods shall be fit for such
purpose.

402.316 Exclusion or modification of warranties.

.…

(2) Subject to sub. (3), … to exclude or modify any implied
warranty of fitness the exclusion must be by a writing and
conspicuous. Language to exclude all implied warranties
of fitness is sufficient if it states, for example, that “There
are no warranties which extend beyond the description on
the face hereof.”

(3) Notwithstanding sub. (2), all of the following apply:

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(a) Unless the circumstances indicate otherwise, all implied
warranties are excluded by expressions like “as is”, “with
all faults” or other language which in common
understanding calls the buyer’s attention to the exclusion of
warranties and makes plain that there is no implied
warranty.

(b) When the buyer before entering into the contract has
examined the goods or the sample or model as fully as the
buyer desired or has refused to examine the goods there is
no implied warranty with regard to defects which an
examination ought in the circumstances to have revealed to
the buyer.

¶27 Koepp challenges the circuit court’s “determination that there was an
implied warranty that the motor was fit for a particular purpose pursuant to [WIS.
STAT. §] 402.315,” asserting that “it was not established that Treyton was relying
on [Koepp’s] skill or judgment to select or furnish suitable goods.” Koepp states
that “[t]here was no testimony or evidence presented that [Koepp] was either
aware of a particular purpose, was involved in the selection of a particular good
for a particular purpose, or that Treyton relied on [Koepp] to select a good for his
particular purpose.” We think the evidence supports the court’s decision.

¶28 As applicable here, WIS. STAT. § 402.315 provides that the sale of
the boat with motor included an implied warranty of fitness if Koepp had “reason
to know any particular purpose for which” the boat and motor were needed and
that Treyton was “relying on [Koepp’s] … judgment to … furnish suitable goods.”
Koepp certainly had reason to know his boat with motor would be needed to carry
and propel persons or things on a body of water. Even if Koepp had reason to
believe Treyton would put a different motor on the boat and resell the one Koepp
had on it at the time of sale, Koepp still would have known that Treyton was
relying on Koepp’s judgment that the motor was in sufficient working condition to
fulfill its natural, obvious and intended purpose—propel a boat on water.
Additionally, the evidence presented at trial was that Treyton and Artie could not

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have discovered the hole prior to their purchase of the motor, as it was
undiscoverable until the motor was taken apart. Treyton and Artie were relying
upon Koepp’s express or implied representation that the motor would sufficiently
function to propel a boat on a body of water.

¶29 The circuit court found that Koepp provided, at a minimum, an
implied representation that the motor would meet its natural, obvious and intended
purpose, and it also found that the motor failed to satisfy this implied warranty.
Treyton testified that the first time he viewed the boat and motor, Koepp told him
“that the motor had no issues other than blowing a fuse, which he replaced, and
only needed a tune-up.” Treyton stated Koepp made similar comments the second
time Treyton viewed it. Additionally, Artie testified that Koepp represented that
“it was a little slower, slower boat, but that was it.” This testimony supports the
circuit court’s finding that Koepp represented that the motor would function as it
should for the purpose of propelling a boat on water, even if it did so “a little
slower.” Also, during his own testimony, Koepp acknowledged representing to
Treyton “the 90-horse” was “a little under power for [the boat] and only goes
about 20 miles an hour.” Koepp had reason to know Treyton expected the motor
to be in sufficient condition to propel a boat and that he was relying on Koepp’s
knowledge of the motor and judgment to furnish a motor that worked for that
purpose. The court did not err in concluding the sale included an implied warranty
and that that warranty was breached because the motor-with-a-hole-in-it could not
meet its purpose—to propel a boat.

¶30 Koepp next contends the circuit court erred in awarding Treyton and
Artie the full $4,420.08 in damages they requested in the complaint based upon
the invoice from Riggs Marine indicating it would cost that much to repair the
motor. Koepp so contends because he presented documentary evidence opining a

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used trade-in value of $1,770 for the motor. It appears to us, however, that the
trade-in value would be for a working motor; however, the motor Koepp sold to
Treyton had a hole in it that caused oil to immediately drain out and thus was not
functioning as it should. What the evidence does indicate is that Treyton cannot
use it for reliably propelling the boat he bought from Koepp unless it is repaired.

¶31 On appeal, the appellant, here Koepp, bears the burden of showing
that the circuit court erred. See Gaethke v. Pozder, 2017 WI App 38, ¶36, 376
Wis. 2d 448, 899 N.W.2d 381. Koepp has not met that burden.2

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

2
Koepp also complains that the $4,420.08 award erroneously “included labor costs
associated with detecting additional problems with the motor ($540) and also apparently costs for
the tune-up of the motor ($868.95), which Treyton knew was necessary at time of sale and
therefore part of the bargain.” Because Koepp raises these issues for the first time on appeal, we
do not consider them. See State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501 (1997)
(“[I]ssues not presented to the circuit court will not be considered for the first time on appeal.”).
Moreover, we also do not consider them because he has failed to develop them. See Clean Wis.,
Inc. v. PSC, 2005 WI 93, ¶180 n.40, 282 Wis. 2d 250, 700 N.W.2d 768 (“We will not address
undeveloped arguments.”). Furthermore, Koepp does not develop an argument challenging the
reasonableness of the particular cost of repair in the estimate submitted by Treyton.

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