COURT OF APPEALS DECISION DATED AND FILED December 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 WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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Gurwant Kaleka and Parminder Kaleka,
Plaintiffs-Respondents, v. Durand Shell, Inc.,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 BROWN, C.J.[1] Durand Shell, Inc. rented a gas station for
five years from Gurwant and Parminder Kaleka.
A written lease agreement detailed the repairs that the Kaleka’s agreed
to perform. They did not do these
repairs. As a self-help remedy, Durand
Shell stopped paying rent. The Kaleka’s
then brought this eviction action, alleging that the lease agreement called for
the timely payment of rent and Durand Shell breached this provision. After a bench trial, the trial court found
that both parties had breached the lease agreement, but ordered a judgment for
eviction on the grounds that the self-help remedy of abatement was foreclosed
by a specific lease provision prohibiting it.
Durand Shell appeals, claiming that its self-help abatement remedy is
authorized by Wis. Stat. § 704.07(4)
and that the court’s decision leaves it without a remedy contrary to Article I,
Section 9 of the
¶2 We do not need to recite the facts in detail. Suffice it to say, the written lease
agreement called for the Kaleka’s to repair the driveway, fix the leaky storage
tanks on the property and be responsible for all structural repairs and
maintenance, which would include keeping the diesel fuel stations in repair. The
Kaleka’s welshed on each of these promises.
After trying without success to get the Kaleka’s to do what they had
agreed to, Durand Shell simply stopped paying rent. The Kaleka’s then brought this in rem action
for eviction.
¶3 The trial court was not very solicitous of the Kaleka’s. Nonetheless, the trial court felt duty-bound
to administer the law. The court focused
on paragraph twenty-four of the written lease that says: “Independent Covenant. The obligation to pay rent is an independent
covenant and no right of offset is allowed hereunder.” The trial court reasoned that the plain
meaning of this paragraph was to say that, irrespective of the other paragraphs
outlining the Kaleka’s duties, the agreement to pay rent was “independent” and
had to be paid regardless. The trial
court came to this conclusion based on the clause spelling out that Durand
Shell had “no right of offset”. The
trial court obviously equated “offset” with “abatement” and held that the
self-help remedy of abatement was not allowed by the plain meaning of the
written contract. So, Durand Shell
breached the contract and eviction was the proper remedy.
¶4 On appeal, Durand Shell points us to Wis. Stat. ch. 704, this state’s landlord and tenant legislation. More particularly, Durand Shell directs our attention to Wis. Stat. § 704.07, which is entitled “Repairs; untenantability.” Without going into specifics, it is Durand Shell’s theory that this statute applies in all nonresidential landlord-tenant situations unless there is a contrary provision expressed in writing. Such being the case, Durand asserts that while the lease agreement did spell out the Kaleka’s repair and maintenance responsibilities in writing, it was silent regarding the remedy for breach of those responsibilities. Thus, since § 704.07(1) says that “[t]his section applies to any non-residential tenancy if there is no contrary provision in writing signed by both parties .…” and there was no contrary provision about remedies in the agreement, the section therefore applies. And if the section applies, then § 704.07(4) allows a tenant to abate rent in the event of untenantability.
¶5 There are a host of problems with this theory. First, it is raised for the first time on
appeal, as the Kaleka’s reveal in their response brief. We are a reviewing court and that means we
“review” issues that were contested and decided in the trial court. When a legal argument is raised for the first
time on appeal, it can hardly be called a “review.”
¶6 Durand Shell complains that, if things are left the way they
are, it is without a remedy. It cites
our state constitution, Article I, Section 9 for the proposition that every
right has a remedy. Like the first
issue, this constitutional argument was not raised before the trial court and
is waived. See Conway, 34
By the Court.—Judgment affirmed.
This opinion will not be published in the official reports. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(a) (2005-06). All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.