COURT OF APPEALS

                DECISION

   DATED AND RELEASED

 

            January 30, 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.  96-2464

 

STATE OF WISCONSIN                                                IN COURT OF APPEALS

                                                                                                                        DISTRICT IV           

                                                                                                                       

JAMES D. LUEDTKE,

 

                                                            Plaintiff-Appellant,

 

                        v.

 

ROGER A. LUEDTKE,

 

                                                            Defendant-Respondent.

                                                                                                                      

 

 

                        APPEAL from a judgment of the circuit court for Portage County:  THOMAS T. FLUGAUR, Judge.  Affirmed.

                        DEININGER, J.[1]   James Luedtke appeals from a small claims judgment awarding him $100 in damages from his brother, Roger.  James had originally sued for $2,118.  He claims the trial court erred (1) in denying his request for a jury trial, (2) in conducting the small claims proceedings by telephone, and (3) in handling the lawsuit "in a[n] arbitrary and capricious fashion."  We reject all three assertions and affirm.

                                                        BACKGROUND

                        James filed a summons and complaint seeking to recover $2,118 from his brother, Roger, alleging Roger's theft of cash and an automobile from James.   The trial court held return proceedings on June 21, 1996, at which James appeared by telephone from Oshkosh Correctional Institution and Roger appeared in person.  Both parties were sworn, examined by the court and testified on their own behalf.  The court continued the proceedings until July 11 to allow the parties to exchange and file written evidence regarding the dispute.

                        On the continuation date, James again appeared by telephone, Roger appeared in person, and both were again sworn and examined.  The trial court also reviewed the documents submitted by the parties and granted judgment to James for $100.  The clerk's minutes for July 11, 1996, recite the following:

BY THE COURT:  Evidence has not been proven by James Luedtke.  Credability [sic] is at issue before the Court.  Court thinks there is something sinnister [sic] between the parties.  Court finds as to theft of the money, James Luedtke has not met his burden.  Court finds car value to be $100.

The record contains no transcript for either the June 21 or July 11 proceedings.  The clerk's minutes reflect a reporter was present on the first date, but none is shown for the second.

                        James then filed a motion for reconsideration and a request for a jury trial.  The trial court denied the motion and request.  After filing his notice of appeal, James filed a statement on transcript indicating "[a] transcript is not necessary for prosecution of the appeal."  Roger did not respond to James' one-page brief, and we ordered submission for decision solely on James' brief.

                                                             ANALYSIS

                        James' brief does not clearly set forth nor provide much in the way of support for his claims of error.  We have determined, however, that he appears to raise three issues.  The first is his constitutional entitlement to a jury trial on his claim against Roger.  He cites the U.S. Const. amend. VII in support of his claim.[2]

                        Section 799.21(1), Stats., provides that the trial of a small claims matter shall be to the court unless a jury trial is demanded.  A party may demand a jury trial by filing a written demand and paying the required fees within twenty days of "joinder of issue."  Otherwise, the "right to trial by jury is waived forever."  Section 799.21(3)(a), Stats.  These requirements do not violate Luedtke's Seventh Amendment right to a jury trial or his similar right under Wis. Const. art. I, § 5.[3]  County of Portage v. Steinpreis, 104 Wis.2d 466, 471-476, 312 N.W.2d 731, 733-35 (1981). 

                        "Joinder of issue" occurred on the initial return date, June 21, 1996, when Roger appeared and contested James' claim.  James' request for a jury trial was not filed until July 26, 1996, more than thirty days after joinder and some fifteen days after judgment had been entered.  James thus waived his right to a have a jury trial by failing to file a timely demand.  Section 799.21(3)(a), Stats.

                        Next, James claims that "Statutes 805.01 thru 805.18 do NOT authorize ... a trial by telephone."  That may be true, but other statutes do.  Under § 807.13(2)(a), Stats., a court may admit oral testimony by telephone in evidentiary proceedings conducted in civil actions whenever "[t]he applicable statutes or rules permit."  Specific permission to take testimony by telephone in small claims trials is found in § 799.04(1), Stats. ("Any judicial proceeding authorized to be conducted under s. 807.13 may be so conducted in actions under this chapter.")  We also note that James does not claim, nor does the record indicate, that he objected to the trial court's taking of his testimony by telephone.  If he did not object in the circuit court, we need not consider the issue.  County of Columbia v. Bylewski, 94 Wis.2d 153, 171, 288 N.W.2d 129, 138-39 (1980).

                        Finally, James claims his lawsuit was "handled in a[n] arbitrary and capricious fashion" by the trial court.  The record we have before us, admittedly a scant one, indicates otherwise.  The trial court on two different days swore the parties, took their testimony, and examined each of them.  The trial court adjourned the proceedings to allow for the production and consideration of written evidence.  The minutes from July 11, 1996, indicate the court stated its findings to the parties and its reasons for granting the judgment it did.  We are satisfied the trial court gave James' claim proper consideration.  See § 799.209, Stats. (procedure in small claims hearings and trials is informal).

                        If, however, James' assertion of arbitrariness goes not to the process in the trial court but to its decision on the merits, the claim also fails.  An appellant has the burden of ensuring that the record on appeal permits us to review his or her claims of error.  See In re Ryde, 76 Wis.2d 558, 563, 251 N.W.2d 791, 793 (1977).  Without a transcript of the testimony, we must assume that the trial court's findings and conclusions (as reflected in the clerk's minutes for July 11, 1996) are supported by the evidence.  See Oxmans' Erwin Meat Co. v. Blacketer, 86 Wis.2d 683, 689, 273 N.W.2d 285, 287-88 (1979).

                        Thus, we find no merit in James' claims of error.

                        By the Court.—Judgment affirmed.

                        This opinion will not be published.  See Rule 809.23(1)(b)4, Stats. 


     [1]  This appeal is decided by one judge pursuant to § 752.31(2)(a), Stats.

     [2]  U.S. Const. amend. VII states in relevant part:

 

            In [s]uits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ....

     [3]  Wis. Const. art. I, § 5 preserves the right to a jury trial in civil actions as follows:

 

Trial by jury; verdict in civil cases.

SECTION 5. [As amended Nov. 1922] The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law.