|
COURT OF
APPEALS DECISION DATED AND
RELEASED July
3, 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. 96-0485
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
RIPPLE
MANAGEMENT,
Plaintiff-Respondent,
v.
JEANNE
HANKINS,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: ERVIN M. BRUNER, Reserve Judge.
Affirmed.
VERGERONT,
J.[1] Jeanne
Hankins appeals from a judgment of eviction.
It appears that she is contending that the trial court erred in ordering
eviction because: (1) she paid her rent; (2) her landlord,
Ripple Management, did not keep certain promises it made to her when she first
moved in; and (3) Ripple Management discriminated against her because of
her disabilities. We affirm the
judgment.
Ripple
Management initiated an eviction action against Hankins, contending that it had
properly served her with a non-renewal notice as provided by the lease and that
she failed to vacate the premises at 910 Ann Street #203, Madison,
Wisconsin. The matter was tried to the
court. Hankins and the property manager
for Ripple Management testified. The
court found that the tenancy was properly terminated by the service on Hankins
of a non-renewal notice dated September 7, 1995, stating that she must vacate
the premises by November 30, 1995. The
lease provided that the lease could be terminated upon sixty days' notice. The judgment of eviction was entered on
February 6, 1996. The record contains
no stay of the eviction.
Ripple
Management contends that the appeal is moot because it is undisputed that Hankins
vacated the premises on February 13, 1996.
Hankins did not file a reply brief.
A proposition asserted by a respondent on appeal and not disputed by the
appellant's reply brief is taken as admitted.
See Schlieper v. DNR, 188 Wis.2d 318, 322, 525 N.W.2d
99, 101 (Ct. App. 1994). We take as
admitted the assertion that Hankins has vacated the premises and conclude on
that basis that the appeal is moot. See
State ex rel. Watts v. Combined Community Servs. Bd., 122 Wis.2d 65,
71, 362 N.W.2d 104, 107 (1985) (case is moot where the determination sought
cannot have any practical effect on a then-existing controversy).
Although
the appeal is moot, we have nevertheless reviewed the record to determine
whether there is any merit to Hankins's challenges to the judgment of
eviction. We conclude there is
not.
Because
the lease permits termination of the lease upon sixty days' notice and requires
no cause for such a termination, timely payment of rent is not a defense to
this termination. The other two issues
Hankins raises--promises not kept and discrimination based on
disabilities--involve credibility determinations. The trial court heard the conflicting testimony of the property
manager and Hankins on these issues, and the matter of credibility was argued
to the court. Although the court did
not make a finding on credibility, we may assume such a finding was implicitly
made in favor of its decision. See State
v. Hubanks, 173 Wis.2d 1, 27, 496 N.W.2d 96, 105 (Ct. App. 1992), cert.
denied, 114 S. Ct. 99 (1993). We
therefore assume the trial court rejected Hankins's testimony on these issues
based on its assessment of her credibility.
In a trial to the court, the trial court is the ultimate arbiter of the
credibility of the witnesses. Fidelity
& Deposit Co. v. First Nat'l Bank, 98 Wis.2d 474, 485, 297 N.W.2d
46, 51 (Ct. App. 1980).[2]
Hankins
also appears to object to Ripple Management's treatment of her since the
judgment of eviction was entered. This
court's independent review of the record is confined to those matters properly
included in the record on appeal. See
State v. Aderhold, 91 Wis.2d 306, 314, 284 N.W.2d 108, 112 (Ct.
App. 1979).
By
the Court.—Judgment affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.