COURT OF APPEALS DECISION DATED AND FILED January 23, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT I |
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Meadow Village, Ltd., Plaintiff-Respondent, v. Christine Jackson Smith, Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Christine Jackson Smith appeals from a judgment for $6240 plus interest entered against her in favor of Meadow Village, Ltd., for breach of contract and for intentional misrepresentation of her income on a rent subsidy application. We conclude that the trial court properly exercised its discretion in denying Jackson Smith’s motion to dismiss the complaint or adjourn the trial and that she has failed to preserve the right to review the dismissal of her counterclaim. Therefore, we affirm.
¶2
¶3
¶4 At trial,
¶5 The next day, Jackson Smith told the trial court that she preferred to continue without counsel. Defense counsel explained to the trial court that he and Jackson Smith disagreed on strategy, and Jackson Smith concluded that it would be in her best interests to proceed pro se.
¶6 Jackson Smith told the trial court that she was prepared to
proceed, and sought to re-call several of
¶7 The trial resumed one month later. When the trial court inquired whether Jackson
Smith had any further evidence to present, she claimed that she had “reserved”
Tom Kroscher as a witness. Kroscher was
not in the courtroom that day. Jackson
Smith asked to adjourn the trial to allow Kroscher to testify on a future date,
or to dismiss
¶8 Wisconsin Stat. § 906.11(1) (2005-06) entrusts the trial court with the discretion to control the mode and order of interrogation and presentation of witnesses at trial.[2]
906.11 Mode and order of interrogation and presentation. (1) Control by judge. The judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to do all of the following:
(a) Make the
interrogation and presentation
effective for the ascertainment of the truth.
(b) Avoid needless consumption of time.
(c) Protect witnesses from harassment or undue embarrassment.
Section
906.11(1) empowers the trial court to control the presentation of witnesses as
long as that control is exercised “reasonabl[y,]” the truth is sought to be
ascertained, time is not wasted, and the witnesses are protected “from
harassment.”
¶9 The trial court denied Jackson Smith’s requests to adjourn the trial or dismiss the complaint against her because of Kroscher’s unavailability, and explained why it denied her requests.
Mr. Kroscher was named by the plaintiff, not by the defendant. He was called as a witness. He was available for questioning by the defendant. She wasn’t represented by counsel at that point but he was available to her.[3] At the end of his testimony, [Kroscher] was not ordered to remain under subpoena. He was not told to return on any particular date. He was apparently not subpoenaed for any further testimony. He’s not here today and [the trial court] ha[s] to decide whether to delay this protracted proceeding further or perhaps grant a dismissal.
The motion for dismissal is denied. Absent naming a witness, or at least subpoenaing him at the last moment or requesting an order from the Court that he return on a certain date, he’s not obligated to be here. And the sanction of dismissing a case, which is a pretty dramatic sanction, is not simply appropriate for a party who may not have gone out of its way to assist, may not have gone out of its way to help but was not obligated to help prove the defense case. So the Motion[] to Dismiss is denied. Ms. Smith, do you wish to present any further evidence?
(Footnote added.) The trial court then swore Jackson Smith as a defense witness. Jackson Smith, at the end of that day in response to the trial court’s calendaring inquiries, sought to recall Kroscher on the next trial date. The trial court denied the request, explaining that it did “not intend to prolong these proceedings simply because we haven’t been able to finish them in order to bring back a witness who testified, who was cross-examined by [Jackson Smith’s] lawyer. So [the trial court is] not going to entertain further testimony from Mr. Kroscher.”
¶10 The trial court properly and patiently exercised its discretion in denying Jackson Smith’s request to allow her to recall Kroscher. She had not identified Kroscher as a defense witness prior to trial as required by the scheduling order. She could have recalled Kroscher when he was in the courtroom while she was presenting her defense pro se. She could have subpoenaed Kroscher to compel his appearance during the month-long adjournment of the trial. The trial court denied her request because she failed to compel Kroscher’s testimony by the foregoing means available to her. Denial did not compromise the interests of ascertaining the truth or fairness to both parties because Kroscher had already testified, and Jackson Smith’s counsel had already cross-examined him. See Wis. Stat. § 906.11(1). Moreover, the trial court declined to prolong this trial, which had consumed over ten hours in more than five days of court time to recall a witness who had already testified and been cross-examined by her counsel. See § 906.11(1)(b). The trial court’s reasons were reasonable, accommodating the statutory considerations and its major objective of being fair to the parties. We will not interfere with the trial court’s proper exercise of discretion in denying Jackson Smith’s motions.
¶11 Jackson Smith also contends that the trial court erred by failing to consider her counterclaims against Meadow Village—for the belated return of part of her security deposit and for her spoiled food—to offset the amount of her liability. We deny her claim for a variety of reasons.
¶12 Preliminarily, Jackson Smith’s failure to move for
reconsideration of her counterclaim pursuant to Wis. Stat. § 805.17(3) constitutes a waiver of her right
to appellate review of this claim. See Schinner
v. Schinner, 143
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] The
monthly governmental subsidy for the apartment rented to Jackson Smith was $624
and was erroneously paid to
[2] All references to the Wisconsin Statutes are to the 2005-06 version.
[3] The trial court was presumably referring to Kroscher’s availability during the defense case because he had already testified (and was cross-examined) during the plaintiff’s case-in-chief. On the first afternoon of the defense case, although Jackson Smith was proceeding pro se, her recently discharged counsel remained in the courtroom available to her in a standby capacity.