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COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER 5, 1996 |
NOTICE |
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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. 96-0466-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
VIVIAN JENSEN,
Plaintiff-Respondent,
v.
JOHN A. JROLF,
d/b/a J INVESTMENTS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
WILLIAM J. HAESE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Fine and Curley, JJ.
PER
CURIAM. John A. Jrolf, d/b/a J Investments (hereafter
"Jrolf"), appeals from a trial court judgment barring him from
claiming any right, title, or interest in certain real estate owned by Vivian
Jensen. Jrolf contends that he had
complied with the terms of a stipulation he entered with Jensen and that the
trial court should have dismissed Jensen's quiet-title action. By order dated March 15, 1996, this case was
submitted to the court on the expedited appeals calendar. Based upon our review of the briefs and
record, we conclude that the trial court did not err in granting judgment to
Jensen. We therefore affirm.
The relevant facts are
largely undisputed. In June 1985,
Marion Lybek deeded certain Milwaukee county real estate to Jrolf. Jrolf did not record the deed with the
county register of deeds, however.
In March 1990, Lybek
transferred to Jensen a portion of the real estate she had transferred to
Jrolf. Jensen properly recorded the
quit-claim deed with the register of deeds.
In April 1995, Jensen
commenced the action underlying this appeal.
She asked the circuit court to bar Jrolf from claiming any interest in
or title to the real estate she received from Lybek, and cited as the basis for
her claim her recorded deed to the real estate. When Jrolf failed to file an answer to Jensen's complaint, Jensen
moved the trial court for default judgment.
Prior to a hearing on
the motion, Jrolf and Jensen reached an agreement that established terms for
Jrolf to avoid a default judgment. The
stipulation required Jrolf to, among other things, "immediately undertake
such action as is necessary to accomplish the approval of the certified survey
map relating to the subject property ...." The parties agreed to adjournment of the default judgment hearing
"to accommodate [Jrolf's] efforts ... with respect to approval of the CSM
... and to accomplish whatever else is necessary to complete the [ ]
purchase." Jensen and Jrolf agreed
that if Jrolf did not satisfy the conditions of the stipulation by December 15,
1995, and "resolve the matter," Jensen could proceed with her
action. Jensen and Jrolf signed the
stipulation on September 29, 1995.
On October 2, 1995, the
parties informed the circuit court that they had reached a stipulation. The trial court docket entries indicate that
terms of the stipulation were discussed in court and placed on the record.[1] The trial court entered an order, noting that
the parties had entered "an oral stipulation in open court." The order provided that if, on December 18,
1995, Jensen provided the circuit court with an affidavit stating that Jrolf
had failed to comply with the conditions of the September 29, 1995 stipulation,
Jensen would "be granted judgment according to the demand of the
complaint." On the other hand, if
Jrolf complied with the terms of the written stipulation or if Jensen failed to
timely file an affidavit alleging Jrolf's noncompliance with the stipulation,
Jensen's action would be dismissed.
At a hearing on December
18, 1995, Jensen filed an affidavit with the circuit court in which she stated
that Jrolf had failed to complete the terms of the stipulation. Specifically, she noted that Jrolf had not
obtained final approval of the certified survey map, and she requested judgment
in her favor.
In opposition to
Jensen's request, Jrolf argued that he had substantially complied with the
terms of the stipulation. Specifically,
he contended that the certified survey map had received approval from the
appropriate authorities. He
acknowledged, however, that the map had not yet received an official
number. Jrolf argued that assignment of
a number to the map was a mere technical default that he was willing to
overlook to close the transaction.
Counsel for Jrolf noted that, in early December, a county official had
"asked that the legal description be redone by the surveyor." Jrolf's counsel suggested that from
"December 5 or 6, until the 14th, the surveyor had that legal description,
the certified survey map." Counsel
stated that Jrolf then "picked up the map" and returned it to the
appropriate authority, but that he was informed that the authorities would not
be able to take immediate action because "their engineer was in the
field."
Jensen contended that
she would not convey real estate with an incomplete legal description to Jrolf
and that she was under no obligation to do so.
In entering judgment for Jensen, the trial court noted that its prior order
was clear: If Jrolf completed all terms
of the stipulation, Jensen's action would be dismissed; if Jrolf failed to
comply with all terms of the stipulation, Jensen would be granted judgment. The trial court granted judgment to Jensen,
reasoning that Jrolf had failed to complete the approval process for the
certified survey map. Jrolf appeals.
The arguments on appeal
center on one question: whether Jrolf
had failed to obtain approval of the certified survey map by the December 15,
1995 deadline as Jensen alleged in her affidavit, and therefore whether Jrolf
had failed to fulfil the terms of the stipulation.[2] As noted, Jrolf maintains that the survey
map had been approved, even though it had not been assigned an official number,
and that he had therefore substantially complied with the terms of the
stipulation.
Although Jrolf contends
on appeal that the map had, in fact, been approved, the record indicates that
the map had not received final approval by all appropriate authorities. It is clear that official actions relating
to the map remained to be completed, but that they could not be accomplished
because the "engineer was in the field" as of December 14, 1996. Although Jrolf contends that he was, at the
December 15, 1995 closing, willing to waive final approval of the map that would
be evidenced by the assignment to the map of an official number, there was
nothing in the stipulation that required Jensen to waive final approval of the
map to complete the transaction.
The trial court's
October 17, 1995 order was clear. If
Jensen filed an affidavit on December 18, 1995 claiming that Jrolf had failed
to "comply with the conditions" of the September 29, 1995 letter,
judgment would be entered in Jensen's favor.
Jensen did so. The stipulation
further provided that if the transaction between Jensen and Jrolf was not
"satisfactorily resolved by December 15, 1995," Jensen could proceed
with her action. The record shows that
the survey map had not received final approval by December 15, 1995, and that
the transaction had not closed on that date.
The trial court's decision to grant Jensen judgment was not erroneous
because it was consistent with its October 17, 1995 order.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.