COURT OF APPEALS DECISION DATED AND RELEASED February 13, 1997 |
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.
96-1327
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
KAREN L. OLSON, Personal Representative,
Estate of Gertrude M. Mikalson,
Plaintiff-Cross Appellant,
v.
WILLIAM MIKALSON,
Defendant-Cross Respondent.
APPEAL from a judgment
of the circuit court for Jefferson County: JOHN M. ULLSVIK,
Judge. Affirmed.
ROGGENSACK,
J. Karen L. Olson, personal representative of the estate of
Gertrude M. Mikalson, appeals a judgment denying the estate's claim for rent
from William Mikalson, the son of the deceased, for the period of time when he
occupied his mother's house after her death.
Olson also claims the trial court erred by not granting the estate
statutory double damages after evicting Mikalson. However, because this court concludes that no rent was due to the
estate under an implied lease and that the trial court properly determined the
estate failed to prove its claim for statutory double damages, we affirm.[1]
BACKGROUND
Mikalson lived in a
house owned by his mother, with her permission and without paying rent, for
several years prior to her death. After
Gertrude's death, her estate advised Mikalson that if he did not begin paying
$800 per month rent as of January 1, 1996, he would be evicted. Mikalson refused to pay rent, but continued
to occupy the property after receiving notice to quit, until the Jefferson
County Circuit Court issued an eviction order.[2]
The estate sued to
collect rent at the rate of $800 per month from January 1, 1996 through
the time of the trial, on an implied lease theory. It also claimed it was due statutory double damages for each day
Mikalson remained in the house after receiving notice to quit. The trial court found there had been no
meeting of the minds, either as to forming a landlord-tenant relationship or as
to the amount of rent due, and that the estate failed to prove that $800 per
month was the reasonable rental value of the property. Therefore, it dismissed the estate's
claims. The estate appeals.
DISCUSSION
Standard
of Review.
Factual findings of the
trial court will be upheld unless clearly erroneous. Section 805.17(2), Stats. However, whether the established facts show
the existence of an implied lease is a conclusion of law, which we review de
novo. See First Nat'l
Leasing Corp. v. City of Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251,
253 (1977). Similarly, whether the plaintiff
has carried its burden of proving damages to a reasonable degree of certainty
is a question of law. However, that
conclusion is subject to the trial court's determination of the credibility of
witnesses. Thorp Sales Corp. v.
Gyuro Grading Co., 107 Wis.2d 141, 153, 319 N.W.2d 879, 884-85 (Ct.
App. 1982).
Implied
Lease.
A contract may be
implied from the conduct of the parties.
See Theuerkauf v. Sutton, 102 Wis.2d 176, 185, 306 N.W.2d
651, 658 (1981). The estate relies on
this basic tenant, and a line of cases in which holdover tenants were found to
have agreed to higher rent by continuing to occupy the premises after
notification of a rate increase, for its claim that Mikalson's failure to
respond to the estate's demand for rent constituted an implied agreement to pay
the amount requested. See Williams
v. Foss-Armstrong Hardware Co., 135 Wis. 280, 284, 115 N.W. 803, 804
(1908); Pabst Brewing Co. v. Milwaukee Lithographing Co., 156
Wis. 615, 618, 146 N.W. 879, 881 (1914).
However, the supreme court has held that the mere fact of occupancy does
not always give rise to an inference of intention to form a lessor-lessee
relationship. Town of Menominee
v. Skubitz, 53 Wis.2d 430, 436, 192 N.W.2d 887, 889 (1972). Rather, in order to find an implied lease,
"there must be a showing of circumstances which permits the inference that
the parties did intend to assume that relationship." M & I First Nat'l Bank v.
Episcopal Homes Management, Inc., 195 Wis.2d 485, 500, 536 N.W.2d 175,
183 (Ct. App. 1995).
The trial court's
finding that there was no meeting of the minds to pay $800 in rent is not
clearly erroneous. Unlike Williams
and Pabst, which dealt with modifications of existing leases,
this case involved no prior agreement to pay rent. Thus, there was no existing agreement by the tenant from which to
infer Mikalson's intention as a matter of law.
Mikalson's failure to respond to the estate's request for rent cannot be
interpreted as agreeing to the estate's proposal in light of his belief, even
if erroneous, that he was entitled to occupy the premises rent free as an
adverse possessor. Therefore, we
conclude, that based on the trial court's findings, there was no agreement to
pay rent.
Damages.
A landlord may recover
damages caused by the failure to vacate premises after service of a notice to
quit. Section 704.27, Stats., provides:
In
absence of proof of greater damages, the landlord may recover as minimum
damages twice the rental value apportioned on a daily basis for the time the
tenant remains in possession. As used
in this section, rental value means the amount for which the premises might
reasonably have been rented, but not less than the amount actually paid or
payable by the tenant for the prior rental period, and includes the money
equivalent of any obligations undertaken by the tenant as part of the rental
agreement, such as payment of taxes, insurance and repairs.
While
this statute entitles a landlord to twice the damages proved, it does not
relieve the landlord of the burden of proving the reasonable rental value of
the property. See Thorp Sales
Corp., 107 Wis.2d at 152-53, 319 N.W.2d at 884.
In this case, the estate
simply presented evidence that it had requested $800 per month rent from
Mikalson. However, there was no
evidence that anyone would have agreed to pay such a sum, nor any other
evidence to support a finding that $800 per month was the reasonable rental
value of the house. Indeed, the court
found:
The
evidence is that this is a 1400 square foot house with water damage, a very
ugly yard, and in utter disrepair. It
might not be worth 350.
In
the absence of the evidence required by the statute, the court's conclusion
that the plaintiff failed to prove damages was correct.
CONCLUSION
Mikalson's continued
occupancy of the house owned by his mother, where he had been living rent free,
did not constitute an implied agreement to pay rent after her death. Additionally, the trial court's finding that
the parties failed to reach a meeting of the minds that Mikalson would pay rent
after December 31 is not clearly erroneous. And finally, the trial court properly denied statutory damages
because the estate failed to prove the reasonable rental value of the property.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.