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COURT OF APPEALS DECISION DATED AND RELEASED JANUARY 22, 1997 |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1662
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
DAIRY FARM LEASING
COMPANY, INC.,
a Delaware
Corporation,
Plaintiff-Appellant,
v.
DEAN WINK,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for St. Croix County:
SCOTT R. NEEDHAM, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Dairy Farm Leasing Company, Inc., appeals a
judgment dismissing its complaint against Dean Wink alleging conversion of
dairy cows and tortious interference with a contract. Dairy Farm argues that the trial court erroneously dismissed its
complaint at the close of its evidence.
It also argues that the trial court erroneously denied its motion for reconsideration
and a new trial. We reject these
arguments and affirm the judgment.
On December 3, 1988,
Dairy Farm leased fifty dairy cows to Mark and Sharon Wink. These cows
generally had a market value between $800 and $1,000 each. To secure performance of the lease, Mark and
Sharon provided Dairy Farm a security interest in all livestock they owned or
thereafter acquired. On June 18, 1990,
Dairy leased eight more dairy cows to Mark and Sharon.
On February 5, 1991,
Mark and Sharon defaulted on the leases.
On February 14, 1991, Mark and Sharon filed bankruptcy. A memo, attached to answers to
interrogatories filed in an adversary proceeding in Mark and Sharon's
bankruptcy, stated that pursuant to a verbal lease, they had leased eight cows
from Dean Wink, Mark's brother, and one had died. It also stated that they had returned the seven cows to Dean two
days before filing bankruptcy.[1]
Throughout the lease
period, Dairy Farm periodically visited Sharon and Mark's farm to audit the
herd. At the time of three of the
audits, fifteen cows were missing. On
November 7, 1990, Mark signed an affidavit that he culled fifteen cows and
replaced them with five cows he purchased with the proceeds from the culled
cows. He also listed ten heifers as
offspring from Dairy Farm leased cattle.
The lease required Mark and Sharon to replace culled cows. Dairy Farm's auditor testified that a 20%
cull rate per year was common. When he
audited the herd on December 24, 1990, he would put a tag on a cow that was not
tagged and list her as a replacement cow for one missing.
Dairy Farm eventually
recovered forty-seven adult cows and four head of young stock. Dairy Farm sought return of its missing cows
from Dean and filed this action alleging conversion of leased property,
conversion of collateral and tortious interference with contract.
The case was tried to
the court. To demonstrate that the
cattle transferred to Dean belonged to Dairy Farm, it relied principally on a
February 5, 1991, audit showing seven cows missing, a handwritten list from its
auditor dated December 24, 1990, as well as Mark's November 7 affidavit. It also relied on Mark's memo indicating
that he returned seven cows to his brother Dean pursuant to the terms of an
oral lease. Mark, Dean nor Sharon
testified at the trial.
At the close of Dairy
Farm's evidence, the trial court granted Dean's motion to dismiss. It concluded that Dairy Farm had not met its
burden to show conversion of leased property or conversion of collateral
because it failed to demonstrate that the cows returned to Dean could be
identified as Dairy Farm's missing cows.[2] Consequently, the court further concluded
that the record failed to support Dairy's claim that Dean tortiously interfered
Dairy Farm's contractual relationship with Mark and Sharon that existed under
the two leases. Dairy Farm appeals the
judgment of dismissal.
After Dairy Farm
completed the presentation of its evidence, Dean moved for dismissal. Since this was a trial by the court without
a jury, § 805.17, Stats.,
applies. This section states:
(1) Motion at close of plaintiff's
evidence. After the plaintiff, in
an action tried by the court without a jury, has completed the presentation of
his or her evidence, the defendant, without waiving his or her right to offer
evidence in the event the motion is not granted, may move for a dismissal on
the ground that upon the facts and the law the plaintiff has shown no right to
relief. The court as trier of the facts
may then determine them and render judgment against the plaintiff on that
ground or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits
against the plaintiff, the court shall make findings as provided in sub.
(2). Unless the court in its order for
dismissal otherwise specifies, a dismissal under this section operates as an
adjudication upon the merits.
In a trial to the court
without a jury, after the plaintiff has presented its case, the defendant may
move for dismissal on the ground that upon the facts and law the plaintiff has
shown no right to relief. Section
805.17(1), Stats. "The court as trier of the facts may
then determine them and render judgment against the plaintiff on that ground or
may decline to render any judgment until the close of all the evidence." Id. In determining the motion to dismiss, the
trial court, as trier of fact, is not required to view the evidence in the
light most favorable to the plaintiff. Household
Util., Inc. v. Andrews Co., 71
Wis.2d 17, 28, 236 N.W.2d 663, 669 (1976). "If the court renders judgment
on the merits against the plaintiff, the court shall make findings as provided
in [§ 805.17(2)]." Section
805.17(1), Stats.
In actions tried without
a jury, findings of fact shall not be set aside on appeal unless clearly
erroneous. Section 805.17(2), Stats.
Trial courts, not appellate courts, judge the weight and credibility of
the evidence. Estate of Wolff v.
Weston Town Bd., 156 Wis.2d 588, 597-98, 457 N.W.2d 510, 513-14 (Ct.
App. 1990).
Conversion has been
defined as the act of dominion wrongfully exerted over another's goods,
depriving him of possession permanently or for an indefinite time. Production Credit Ass'n v. Equity
Coop. Livestock Sales Ass'n, 82 Wis.2d 5, 10 n.8, 261 N.W.2d 127, 129
n.8 (1978). The principal dispute is
whether the cattle Mark and Sharon transferred to Dean belonged to Dean. Unless the court was satisfied that Dairy
Farm was entitled to the cattle, no action for conversion of collateral or
leased property, and no action for tortious interference of contract is shown.
On this record, the
trial court was not required to find that the transferred cattle belonged to
Dairy Farm. The circumstantial evidence
offered to support such a finding were Mark's and Sharon's answers to interrogatories,
which stated that one cow bearing "#376 red ear tag" was surrendered
to Dean. Also, Mark's November 7
affidavit stated that "35LBU3044, 376 or" was purchased with cow cull
money from Dairy Farm cows. The trial
court could conclude that the answer to the interrogatory was insufficient to
demonstrate that the cow bearing the a red ear tag #376 was the same cow
purchased with cow cull money bearing a tag "35LBU3044, 376 or."
Also, the answers to
interrogatories indicate that cows with blue tags #9019, #3805, #9020 and red
tag #373 were surrendered to Dean. The
auditor's December 24 handwritten list contains cows with identically numbered
ear tags, which the auditor recorded, in Mark's presence, as replacements for
culled Dairy Farm cows.[3] However, the auditor testified that he put a
replacement tag on any cow in the herd that did not have an ear tag. The court was not required to accept the
auditor's inference that every tagless cow was necessarily a replacement cow
for Dairy Farm.
Dairy Farm argues that
it presented sufficient circumstantial evidence to permit the trial court to
find in its favor. It argues that the
trial court erroneously denied its motion for reconsideration. However, our role on appeal is not to search
the record for findings the trial court could have but did not make. In re Estate of Becker, 76
Wis.2d 336, 347, 251 N.W.2d 431, 435 (1977).
If more than one reasonable inference may be drawn from the evidence, we
must accept the inference drawn by the trial court. See Hennekens v. Hoerl, 160 Wis.2d 144, 162,
465 N.W.2d 812, 819-20 (1991). Our
standard of review constrains us to accept the trial court's determinations as
to weight and credibility of the evidence.
Section 805.17(2), Stats. We conclude that on this record the trial
court could reasonably determine that Dairy Farm did not establish a leasehold
or security interest in the cattle Dean accepted from Mark and Sharon.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.
[1]
The memo described the cows as follows:
#376 Red ear tag
#373 Red ear tag
#27 White brand middle of back
#43 stall Big head & body
9019 Blue ear tag
#2 yellow ear tag 1st calf
#1 stall ... all black except bag
and feet #3805 blue ear
#38 yellow ear tag 3rd calf #
9020 blue ear tag
#37 yellow ear tag Died shortly after with twin calves