COURT OF APPEALS DECISION DATED AND FILED April 8, 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
from a judgment of the circuit court for
¶1 BRUNNER, J.[1] Tim Bradwell appeals a judgment awarding damages to John Snowbank. Bradwell argues the Wisconsin Consumer Credit Act did not apply to the transaction with Snowbank. He also argues that if the Act did apply he did not violate it, and therefore Snowbank was not entitled to damages. We disagree and affirm.[2]
BACKGROUND
¶2 On April 30, 2004, Snowbank met with Bradwell to purchase a
trailer. The parties filled out a
receipt indicating Snowbank “paid on account” $520 and had a balance due of
$89.97, which was due by May 7. Both
parties signed the receipt. Snowbank
took possession of the trailer at that time.
Bradwell did not transfer title to Snowbank at the time of the
sale. Snowbank did not pay the balance
due. Bradwell learned the trailer was
parked on Willis and Alice Burton’s property.
Bradwell then took the trailer from the
¶3 On November 15, 2005, Snowbank sued Bradwell in small claims court for violation of the Act and sought return of the trailer, damages, and attorney fees. Bradwell filed an answer and counterclaim. Both parties moved for summary judgment.
¶4 On February 13, 2007, the trial court granted partial summary judgment to Snowbank. The court noted that the bill of sale was “uncontroverted in terms of its authenticity” and was “clear and unambiguous with regard to the subject property, the total price, the amount of the down payment and the balance owed as well as when the balance was due.” The court concluded, Snowbank “is correct in asserting that through their actions the parties created a relationship which is subject to the provisions of the [Act] as a consumer credit transaction[]” and granted summary judgment on that issue. The court denied summary judgment on the rest of the matter stating,
There are genuine issues
with regard to other material facts including but not limited to whether the
defendant was entitled to take possession of the car trailer based on Mrs. Burton’s
consent. Also, there will need to be a
trial with regard to the basis on which the trailer was at the
In addition there will
undoubtedly be a genuine issue as to the reasonableness and necessity of the
attorney’s fees.
¶5 At trial on June 26, Bradwell admitted that Snowbank did not surrender the trailer to him, and he did not send Snowbank notice that he had taken possession of the trailer pursuant to Wis. Stat. § 425.207. Bradwell testified the trailer was on Willis Burton’s property, and Willis gave him permission to take the trailer. Willis’s widow Alice Burton testified that Snowbank left the trailer with Willis as collateral for money that Willis had loaned Snowbank. She also testified that Snowbank never told them that they could give the trailer away and he never told them that they owned the trailer. The court awarded judgment to Snowbank in the amount of $520 for the amount he paid on the trailer and $3,412 in attorney fees.
DISCUSSION
¶6 Bradwell first argues that the trial court erred by granting
summary judgment on the issue of whether the agreement constituted a consumer
credit transaction. Whether summary judgment is appropriate is a
question of law reviewed without deference to the trial
court. Green Spring Farms v. Kersten,
136
¶7 Whether the agreement between Bradwell and Snowbank is a
consumer credit transaction subject to the Consumer Credit Act is a mixed
question of fact and law. LeBakken
Rent-to-Own v. Warnell, 223
¶8 At the summary judgment hearing, Bradwell argued the transaction was not a consumer credit transaction. Bradwell contended he was “not a lender” and “there was never any intent to lend money or property of any sort to John Snowbank, and title ownership of the Trailer was never transferred by Bradwell Enterprises to John Snowbank.”
¶9 Under Wis. Stat. § 421.301(10), any “consumer
credit sale” is also a consumer credit transaction” and therefore subject to
the regulations of the Consumer Credit Act.
LeBakken, 223
[A] bailment constitutes a consumer credit sale if the bailee … pays or agrees to pay an amount substantially equivalent to or in excess of the ... value of the goods, and the bailee … for no other or a nominal consideration has the option to become ... the owner of the goods upon full compliance with the agreement.
Palacios v. ABC TV & Stereo Rental, 123
¶10 The
facts of this case clearly fit within the bailment requirements of the
Act. It is undisputed that Snowbank had
possession of the property. In addition,
the receipt filled out by the parties indicates Snowbank paid $520 and had a
balance due of $89.97. Neither party
disputes that Snowbank would have become the owner of the trailer if he had
paid the remainder of the balance.
Therefore, under the undisputed facts presented to the trial court, the
agreement was subject to the Act.
¶11 On
appeal, Bradwell argues that the Act does not apply because Snowbank was not a
customer. He failed to raise this issue
at the summary judgment hearing. Trial
courts “need not divine issues on a party’s behalf[]” and “we will not … blindside
trial courts with reversals based on theories which did not originate in their
forum.” Schonscheck v. Paccar, Inc.,
2003 WI App 79, ¶11, 261
¶12 Bradwell
next argues that even if there was a bailment, the trailer was voluntarily
surrendered by Snowbank to the
¶13 At
trial, Alice Burton testified that Snowbank left the trailer with her husband
as collateral for money that he had loaned Snowbank. She also testified that Snowbank never told
them that they could give the trailer away and he never told them that they
owned the trailer. Under these facts, we
cannot conclude that Snowbank surrendered ownership of the trailer to the
By
the Court.—Judgment affirmed.
This opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2). All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] Bradwell also purports to appeal from the court’s non-final order granting partial summary judgment. While the appeal of the judgment allows us to review prior non-final adverse rulings, only a final judgment or order is appealable. See Wis. Stat. § 808.03(1); Wis. Stat. Rule 809.10(4). A partial summary judgment is not a final order because it does not dispose of all of “the entire matter in litigation as to one or more of the parties.” See Wis. Stat. § 808.03(1).
[3] Bradwell
makes numerous other arguments regarding why the Act does not apply. Many of these arguments were not brought
before the trial court and will thus not be addressed on appeal. Schonscheck v. Paccar, Inc., 2003 WI
App 79, ¶11, 261
[4] Bradwell
makes a passing argument that the trailer was damaged by Snowbank, and he is
therefore entitled to damages. Bradwell
also briefly mentions that the amount of damages awarded to Snowbank was
incorrect. These arguments are not sufficiently
developed and we will not develop them for him.
See Barakat, 191