|
COURT OF
APPEALS DECISION DATED AND
RELEASED September
30, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0246
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
W.
GEORGE BOWRING, and EDWARD J. CALLAN,
Plaintiffs-Respondents,
v.
WISCONSIN
DIVISION OF HIGHWAYS &
TRANSPORTATION,
Defendant,
WALTER
MERTEN,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dodge County: JOHN R. STORCK, Judge. Affirmed.
VERGERONT,
J.[1] Walter
Merten appeals from a judgment in the amount of $2,273 awarded against him for
appraisal services provided by W. George Bowring and Edward Callan with respect
to 1.69 acres of land which the Wisconsin Department of Transportation (DOT)
proposed to acquire. He contends that
the trial court erred in denying his motion to dismiss on the grounds of lack
of capacity to sue and failure to join a necessary party; erred in ruling that
his demand for a jury trial was untimely; and erroneously exercised its
discretion in denying his motion to enlarge the time to request a jury trial
and pay the fees. He also challenges
the court's findings and the sufficiency of the evidence to support the
judgment against him.[2] We reject each contention and affirm.
BACKGROUND
DOT notified Merten that it proposed to
acquire 1.69 acres of his land for the widening of Highway 67 as well as
acquiring a temporary limited easement during the year of construction on .08
acres. DOT also notified Merten that he
could obtain an appraisal of the property from a qualified appraiser and submit
a bill for the reasonable costs of the appraisal to DOT. Merten engaged Bowring and Callan to conduct
the appraisal. They submitted their
appraisal report to DOT along with a statement for services in the amount of
$2,473. DOT sent Merten a check payable
to him, Bowring and Callan in that amount.
However, Merten refused to negotiate the check to Bowring and Callan
because he believed there were deficiencies in their appraisal report and
statement for services.
Bowring
and Callan filed a small claims action, alleging that payment for their
appraisal services was due and owing from Merten.[3] The summons and complaint notified Merten
that he had to appear on July 18, 1995, at a certain place and time to dispute
the matter "and/or" file a written answer before that time; if
neither occurred, a judgment might be granted to the plaintiff. The initial complaint named W. George
Bowring Appraisal as the plaintiff. On
July 18, 1995, Merten personally appeared and filed a motion to dismiss on the
ground that W. George Bowring Appraisal lacked the capacity to sue and that a
necessary party had not been joined.
Bowring and Callan also personally appeared on that date. The minute sheet states that there was
"no resolution to issues."
Merten was directed to file a written answer by July 25, 1995, and trial
was set for August 3, 1995.
Merten
filed a written answer on July 25, 1995.
The trial did not take place on August 3. Instead, on that date the court heard Merten's motion to
dismiss. Upon learning the W. George
Bowring Appraisal was not a legal entity but rather the name under which
Bowring and Callan did business, the court permitted Bowring and Callan to
amend the complaint to name themselves individually as plaintiffs. They did so on that same day. Another pretrial conference was scheduled,
and trial was set for November 16, 1995.
Merten
filed a demand for a jury trial along with a check for $36; both were received
by the court on August 10, 1995.
On
August 30, 1995, the court entered an order directing return of the fee on the
grounds that the request for a jury trial was not timely because it was not
filed within twenty days of July 18, 1995, as required by § 799.21(3), Stats.,[4]
and was not accompanied by the fee required by the statute.
Merten
received the order on September 5, 1995.
On September 25, he filed a motion to extend the deadline for filing the
jury demand and fee under § 801.15(2)(a), Stats., alleging excusable neglect.[5] After a hearing, the court denied the motion
concluding that the demand was untimely, was not accompanied by the requisite
fee, and that the interest of justice did not require an enlargement of the
deadline.
After
a trial to the court, the court determined that reasonable compensation for the
services provided by Bowring and Callan was $2,273. It ordered that Merten satisfy the judgment by negotiating the
DOT check, paying $2,273 to Bowring and Callan and refunding $200 to DOT.
DISCUSSION
We
first address Merten's argument regarding his motion to dismiss due to lack of
capacity to sue and failure to join a necessary party. It is not clear to us whether Merten is
arguing that the court erred in denying the motion or erred in ordering a
written answer before deciding the motion.
The latter argument appears to be related to Merten's argument regarding
the timeliness of the jury demand, and we address that below. The former argument is without merit. The court may, on its own initiative, permit
an amendment to a complaint to add or drop parties at any time during the
proceeding on such terms as are just.
Section 803.06(1), Stats. The court properly exercised its discretion
when it permitted Bowring and Callan to amend the complaint to add their names
as individuals in place of W. George Bowring Appraisal, rather than dismissing
the complaint as Merten requested.
We
next address Merten's argument that his jury demand was timely filed because
joinder occurred on July 25, 1995, the date his answer was filed, rather than
on July 18, 1995, the return date. We
note that Merten appears to concede that the fee he filed with the demand was
insufficient.[6] We are at this point, then, concerned only
with the proper interpretation of the requirement in § 799.21(3), Stats., that the demand and fee be
filed within twenty days of the date of joinder. This presents a question of law, which we review de novo. See Torke/Wirth/Pujara v.
Lakeshore Towers, 192 Wis.2d 481, 501, 531 N.W.2d 419, 426 (Ct. App.
1995).
All
pleadings in small claims actions, except the complaint, may be oral, unless
the circuit court by rule requires written pleadings or a judge or commissioner
requires written pleadings in a particular case. Section 799.06(1), Stats. "Joinder" is not defined in the
statute. However, the function and
proceedings of the return date are prescribed in detail. Section 799.20(4), Stats., provides:
Inquiry of
defendant who appears on return date. If the defendant appears on the return date of the summons or any
adjourned date thereof, the court or court commissioner shall make sufficient
inquiry of the defendant to determine whether the defendant claims a defense to
the action. If it appears to the court
or court commissioner that the defendant claims a defense to the action, the
court or court commissioner shall schedule a trial of all the issues involved
in the action, unless the parties stipulate otherwise or the action is subject
to immediate dismissal.
The
record shows that this is what happened on July 18, 1995. Merten appeared; the issues were discussed; Merten
communicated that he contested the complaint and wished to present defenses;
and the matter was scheduled for trial.
The
statute also provides that if the defendant does not appear personally on the
return date then upon due proof, a default judgment in plaintiff's favor may be
entered. See § 799.22(2), Stats.
In the event a county permits the filing of a written answer by the
return date in lieu of a personal appearance, as is the case here, an answer
properly filed is considered an appearance for purposes of avoiding the entry
of a default judgment on the return date.
Section 799.22(4). The language
used in this section is particularly pertinent for our purposes because it uses
the term "join issue" in providing alternatives to a personal appearance
on the return date.[7]
We
conclude that joinder occurred on July 18, 1995, when Merten personally
appeared and contested the complaint.
The written answer he later filed at the court's direction did not
function as an alternative to personal appearance: it was not necessary to avoid a default and it was not necessary
to join the issues. Rather, in this
context it was a discretionary determination made by the court, see
§ 799.06(1), Stats., and
functioned to clarify and organize the many objections Merten had to the
appraisal report. The trial court
correctly ruled that Merten's demand for a jury trial, filed twenty-three days
after joinder, was untimely.
The
right to a jury trial is waived in civil proceedings if the statutory
procedures for asserting the right are not followed. State ex rel. Prentice v. County Court, 70 Wis.2d
230, 239-40, 234 N.W.2d 283, 288 (1975).
However, a court may, under § 801.15(2)(a), Stats., grant a motion made after the expiration of the
specified time for demanding a jury trial upon a finding of excusable
neglect. See Chitwood v.
A.O. Smith Harvestore, 170 Wis.2d 622, 628, 489 N.W.2d 697, 701 (Ct.
App. 1992). The court must first
determine if there is excusable neglect and, if there is, whether relief should
be granted in the interest of justice. Hedtcke
v. Sentry Ins. Co., 109 Wis.2d 461, 475-77, 326 N.W.2d 727, 734-35
(1982). "Excusable neglect"
is that neglect which might have been the act of a reasonably prudent person
under the same circumstances. Id.
at 468, 326 N.W.2d at 731. How promptly
the party acts in seeking the enlargement is a factor that may be relevant in
determining the plausibility to the justification for the neglect, and it is
relevant to determining whether relief is in the interest of justice. Id. at 477, 326 N.W.2d at
735.
We
do not reverse a circuit court's determination under § 805.15(2)(a), Stats., unless an erroneous exercise of
discretion is clearly shown. Id.
at 470, 326 N.W.2d at 732. Where the
trial court does not set forth adequate reasons to explain its decision, we may
review the record to determine whether it supports the trial court's
decision. Id. at 471, 326
N.W.2d at 732. Generally, we look for
reasons to sustain a trial court's discretionary decision. Schauer v. DeNeveu Homeowners Ass'n,
194 Wis.2d 62, 71, 533 N.W.2d 470, 473 (1995).
The
trial court determined that Merten's jury demand was untimely and not
accompanied by the required fee. It did
not expressly determine whether this was the result of excusable neglect. It did decide that the interests of justice
did not require granting the motion for enlargement.
Merten
avers in his affidavit that at the pretrial on August 3, 1995, he stated he
wanted a jury trial and "the Court courteously checked the statute book
and said that the time for the demand was close (20 days after joinder) and
that the fee was $6.00 per juror."
At the hearing on the motion, the court stated: "I do recall the discussion of the fee
of $6 at the pretrial conference but I don't recall any representation as to
what was the time of joinder."
Although it is not clear whether the court is recalling that it told
Merten that the fee of $6 per juror was the entire fee, we will interpret the
court's comments most favorably to Merten--as the court's acknowledgment that
it did mislead or misinform Merten as to the amount of the fee. We will assume without deciding that
Merten's reliance on the court's statement and failure to check further on the
amount of the fee required was excusable neglect. However, the record provides no basis for a finding of excusable
neglect with respect to the untimeliness of the demand.
The
record shows that the court did not tell Merten that joinder did not occur
until he filed a written answer. There
is no evidence that Merten made an inquiry as to when the twenty days for
requesting a jury demand began to run.
On July 18, 1995, Merten appeared and contested the complaint. A trial was then scheduled for August 3,
1995. On July 25, 1995, the date on
which Merten filed his answer, a notice was sent to Merten notifying him that
"[t]he court has changed this court trial to a motion hearing/pretrial
conference" at the same time and place.
Merten was thus on notice that up to that time, the court was proceeding
as if trial would be to the court. At
the August 3 motion hearing/pretrial, the court, according to Merten, told him
that the time for requesting a jury trial was "close." Under these circumstances, a reasonably
prudent person who wants a jury trial, as Merten states he did, would immediately
seek further information as to the exact deadline for requesting a jury
trial. A reasonably prudent person
would not take it upon himself to determine that "joinder" means the
date the written answer was filed rather than the earlier return date and,
without any confirmation of this interpretation and knowing that the deadline
is "close," make a jury demand based on this interpretation.
Both
parties refer in their briefs to the fact that Merten was a retired trial
attorney. We cannot tell from the
record whether the trial court knew this at the time it denied the motion for
enlargement. However, it is obvious
from the motions and pleadings filed by Merten, which the trial court has read,
that Merten knew how to find, read and argue the applicable statutes. This is an additional basis in the record
indicating that Merten's conduct was not that of a reasonably prudent person
under similar circumstances.
We
conclude that the record supports the court's implicit finding that Merten's
untimely demand was not the result of excusable neglect. Denial of his motion on that basis is
therefore not an erroneous exercise of discretion. Since the "interests of justice" component enters in
only if there is excusable neglect, we need not consider that point.
Finally,
we address Merten's challenge to the judgment against him. There is no dispute that Merten engaged
Bowring and Callan to perform an appraisal.
The issues the court had to decide were whether they substantially
performed the contract and, if they did, the reasonable value of their
services. We do not reverse findings of
fact made by a trial court sitting as the trier of fact unless they are clearly
erroneous. Section 805.17(2), Stats.
The trial court gave a very detailed and thoughtful decision from the
bench on the day following the close of evidence, stating each of its findings
and the evidence that supported those findings and the legal standards it
applied. We conclude that the court
applied the correct legal standards and that all of its findings were supported
by the record.
There
was ample evidence to support the court's determination that Bowring and Callan
substantially performed the contract.
Two experienced real estate appraisers testified that the report Bowring
and Callan prepared conformed to the uniform appraisers' guidelines and the DOT
guidelines for appraisers. A DOT
employee, formerly a real estate appraiser, testified that the appraisal
complied with the DOT appraisal guidelines.
The court addressed the deficiencies that Merten's expert mentioned in
his testimony. The court agreed that
the evidence showed that the report failed to address the underground sprinkler
system and the large timbers and that there were certain other defects in the
report, such as failing to label the pictures properly and inaccurately
describing the size of the parcel before the taking. However, the court determined that these were minor and
unimportant deviations from the obligations of the appraisers. This determination is supported by the
record.
With
respect to the reasonable value of the services, the court did not consider
itself bound by DOT's determination that the amount charged was reasonable but
instead made its own evaluation.
Bowring and Callan's witnesses testified that the statement for services
complied with DOT guidelines for such statements, that the amount charged was
reasonable, and that the hourly rate--$50--was at the low end of the range of
charges for such work in the area. They
also testified that it was customary to use materials submitted by clients in
preparing an appraisal report, as Bowring and Callan had done. Merten's expert did not present testimony on
the reasonableness of the charges.
The court determined that there was an error
in the computation of hours on one date, overstating the hours by one
hour. The court also found that, in
view of the information Merten gave Bowring and Callan, Bowring's testimony
that it took nine hours to do certain evaluations was not credible. The court therefore reduced this time to six
hours. After making these reductions,
the court concluded that Merten owed Bowring and Callan the resulting amount of
$2,273. The court's findings of fact
are supported by the record and it made no errors of law.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] The notice of appeal specifically refers to
the first three issues. In his brief,
Merten also challenges the court's findings and the sufficiency of the evidence
to support the judgment as well as the court's later determination that he was
in contempt. The respondents apparently
are of the view that an appellant's brief is limited to those issues
specifically mentioned in the notice of appeal. That is not the case. The
failure to specify in the notice of appeal that he is challenging the judgment
against him, as well as the three non-final orders specifically referred to, is
not a jurisdictional defect. See
Northridge Bank v. Community Eye Care Center, 94 Wis.2d 201, 203,
287 N.W.2d 810, 811 (1980). Since we
are able to determine from the notice of appeal the judgment that Merten is
challenging, the notice of appeal is sufficient to give us jurisdiction to
review the judgment against him and any prior non-final orders. See State v. Avery, 80
Wis.2d 305, 309, 259 N.W.2d 63, 64 (1977).
Because we have the record of the trial and because the respondents do
discuss the sufficiency of the evidence in the context of addressing other
issues, we choose to address Merten's challenges to the judgment.
However,
we do not have jurisdiction to review the determination of contempt. That order was entered on April 8, 1996,
after the filing of the notice of appeal on January 18, 1996.
[4] Section 799.21(3)(a), Stats., provides:
(a) Any party
may, upon payment of the fees prescribed in ss. 814.61(4) and 814.62(3)(e),
file a written demand for trial by jury.
If no party demands a trial by jury, the right to trial by jury is
waived forever. In eviction actions,
the demand shall be filed at or before the time of joinder of issue; in all
other actions within 20 days thereafter.
[5] Section 801.15(2)(a), Stats., provides:
When an act is
required to be done at or within a specified time, the court may order the
period enlarged but only on motion for cause shown and upon just terms. The 60 day period under s. 801.02 may not be
enlarged. If the motion is made after
the expiration of the specified time, it shall not be granted unless the court
finds that the failure to act was the result of excusable neglect. The order of enlargement shall recite by its
terms or by reference to an affidavit in the record the grounds for granting
the motion.
Merten's
motion actually requested that the August 30, 1995 order be vacated and that an
order be entered extending time to supplement the fee. We interpret this as a request for
enlargement both of the time to file the demand and to submit the fee, since
both must be done within twenty days of joinder.
[6] In addition to $6 per juror, see
§ 814.61(4), Stats., Merten
should have paid $53--the difference between the fee of $75 required under §
814.61(1)(a)2 and the fee of $22 required under § 814.62(3)(a)2, Stats.
Section 814.62(3)(e).
[7] Section 799.22(4)(am), Stats., provides:
If the defendant is
a nonresident of this state, the circuit court shall adopt a rule to permit the
defendant to join issue in any of the actions specified in s. 799.01
without appearing on the return date by answering by mail, in such manner as
the rule permits, and if the court adopts a rule under par. (a) to permit the
defendant to join issue without appearing on the return date by answering by
telephone, then the defendant shall also be permitted to join issue by
answering by telephone, in such manner as the rule permits. (Emphasis added.)