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COURT OF APPEALS DECISION DATED AND RELEASED November 19, 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. 96-1315
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
MARK ARMBRUSTER and
BETH ARMBRUSTER,
Plaintiffs-Respondents,
v.
DAVID M. COUNARD,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JOHN P. BUCKLEY, Reserve Judge. Affirmed.
FINE,
J. David M. Counard appeals from a judgment entered in a
small-claims case that awarded $980 plus costs to Mark and Beth
Armbruster. Both parties appear pro
se. Mr. Counard argues that there
is no evidence to support the judgment.
We affirm.
I.
This case arises out of
an automobile accident. The Armbrusters
sued Mr. Counard for damages they allegedly sustained when Mr. Counard's car
struck the car Mr. Armbruster was driving, a 1986 Cavalier. Mr. Armbruster testified that he was driving
east on Whitnall Avenue in Milwaukee, in the right lane, preparing to make a
right turn onto Pine Avenue when Mr. Counard “pulls out and hits me.” According
to Mr. Armbruster, Mr. Counard told him that he, Mr. Counard, was also going to
make a right turn onto Pine. Mr.
Armbruster testified that the accident happened when Mr. Counard changed lanes
preparatory to his turn, and that Mr. Counard's car hit the front driver's side
of Mr. Armbruster's car.
According to Mr.
Armbruster, the front left fender was “smashed in,” the plastic front bumper
containing the headlights was “all cracked,” the wheel rim was bent, and he
couldn't open his driver's side door after the accident because of the smashed
front fender. When asked by the trial
court about the dollar value of the damage, Mr. Armbruster replied that he did
not have any of the bills (he said that he gave them to the Department of Motor
Vehicles, and did not keep any copies), but that he received estimates that
“came out to like $1600, which would have totalled the car because the value of
the car was only like fourteen something.”
Although the estimates are not part of the appellate record, Mr. Armbruster
had them with him at the trial, and the trial court apparently examined them.[1] Mr. Armbruster did not have his car
repaired.
Mr. Counard testified
that he was stopped at a red light, partially into the lane from which he
wanted to make his right turn, with his right turn signal on. It had snowed the
day before and, according to Mr. Counard, the road was “still icy and
slippery.” He told the trial court what
then happened:
The
light turned green. I did look out of
my mirrors. Mr. Armbruster was not over there.
He was still in the same--right behind everybody else. I started--continued making my turn. Mr. Armbruster decided that he was going to
try to fit between the two points, I guess, and his front end ran into my
passenger car door. And that's
basically what happened.
Mr.
Counard testified that “when the light turned green, I had looked out and he
ran into me before I got a change [sic] to go anywhere.” Mr. Counard claimed that Mr. Armbruster was
“behind” Mr. Counard's car, and that he, Mr. Counard, saw Mr. Armbruster
“coming up.” Mr. Counard told the trial
court that there was no room for two cars at the “end of the road” because of
the accumulation of snow from the previous day's twelve-inch snow fall. Although the police-generated accident
report is not part of the appellate record, Mr. Counard described it as showing
“my front end of the car into his”; Mr. Counard contended that this was wrong
because “it was his front end of the car into mine.”[2]
The trial court ruled
that Mr. Counard was primarily at fault, with Mr. Armbruster being
thirty-percent negligent:
THE
COURT: All right. Whitnall Avenue was a two land highway with
a center line indicating the division between the right and left lanes or the
north and south lanes. The defendant
Counard was the third of three cars parked near the center line waiting for the
light, which was then red, to change.
And as it changed, the plaintiff was operating his vehicle in the
right-hand lane behind Counard; and as the light changed, the plaintiff pulled
out to his right and occupied the remainder of the lane in order to make a
right turn. Two vehicles ahead of Mr.
Counard were indicating left turn signals.
Mr. Counard said he was indicating that he was going to make a right
turn.
MR.
COUNARD: Sir, the vehicles in front of
me did not have no turn signals on.
THE
COURT: Anyway, they were making left
turns. So when impact occurred,
according to the accident report, primarily the collision was with Mr.
Armbruster's car in the right side of Mr. Counard's car. The damage was to the left side of
Armbruster's car. Based upon the facts
given and the information given, the Court is of the opinion that Mr. Counard
had a duty to yield the right of way.
Even though it is only a one lane highway, there's room for two cars. To Mr. Armbruster who was approaching, the
Court is of the opinion that Mr. Armbruster, however, exercising due caution
may or should have anticipated that turn.
He didn't do so.
The Court will find that the defendant is 70
percent negligent, the plaintiff is 30 percent negligent. The damages are the book value of the car at
the time, and the only testimony on that is $1400.
As to damages, the trial
court based its assessment on the range of values reported by the Blue Book,
which the parties apparently presented at the trial.[3]
Moreover, the owner of property is competent to give an opinion of that
property's value, Trible v. Tower Ins. Co., 43 Wis.2d 172, 187,
168 N.W.2d 148, 156 (1969), and may base that opinion on evidence that is not
admissible, see Rule
907.03, Stats.[4] The trial court assessed damages at
seventy-percent of what it determined as the car's value of $1,400.
II.
Our review of a trial
court's findings of fact is severely limited—we may not overturn a trial
court's factual findings unless they are “clearly erroneous.” Rule 805.17(2), Stats. Further, we
must accept reasonable inferences that the trial court draws from the
evidence. State v. Friday,
147 Wis.2d 359, 370-371, 434 N.W.2d 85, 89 (1989). Given the state of this record, we cannot conclude that the trial
court's findings of fact are “clearly erroneous.” We must, therefore, affirm.[5]
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] We are, of course, bound by the record as it comes to us. State v. Pettit, 171 Wis.2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992). It is the appellant's burden to ensure that the record is sufficient to address the issues raised on appeal. State Bank of Hartland v. Arndt, 129 Wis.2d 411, 423, 385 N.W.2d 219, 225 (Ct. App. 1986); see Rule 809.15(1)(a)9, Stats. (The record on appeal shall include “[e]xhibits material to the appeal whether or not received in evidence.”); Rule 809.15(2), Stats. (The parties receive ten-day notice of the provisional contents of the record prior to its transmittal to the appellate court.). Indeed, when the appellate record is incomplete in connection with an issue raised by the appellant, we must assume that the missing material supports the trial court's ruling. See Duhame v. Duhame, 154 Wis.2d 258, 269, 453 N.W.2d 149, 153 (Ct. App. 1989). When Mr. Armbruster indicated that he had the repair-shop estimates, the trial court responded: “I want to see those.”