COURT OF APPEALS DECISION DATED AND FILED January 14, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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 DYKMAN, P.J.[1] Jill Zohimsky appeals from a small claims judgment awarding Danielle Doocy $1,392 in Doocy’s action against Zohimsky for breach of a residential purchase contract. Zohimsky contends that the trial court erred in awarding Doocy the earnest money Zohimsky submitted with an offer to purchase residential property from Doocy, and in awarding Doocy attorney fees. Zohimsky also argues that she was denied due process because: (1) the trial court failed to provide its reasoning process in written form, (2) the trial court judge was biased, and (3) Doocy failed to notify Zohimsky that she obtained legal representation during the proceedings in this case. We reject each of these contentions, and affirm.
Defective
Appellate Record
¶2 Initially, we observe that the record does not contain a transcript of the reporter’s notes, as required by Wis. Stat. Rule 809.15(1)(a)13. Therefore, we do not know what findings of fact the trial court made or why the trial court ruled as it did. The transcript would have provided that information. As Zohimsky writes in her notice of appeal, the record contains the clerk’s minutes, which provide a skeletal account of the nature of this lawsuit, and a copy of an offer to purchase, signed by Zohimsky and Danielle M. Oftedahl.[2] The offer states that it was drafted by Zohimsky. But we know nothing about the testimony of Zohimsky and Doocy, apparently the only two witnesses who testified.
¶3 This is not a mere formality, or an unimportant omission. A transcript of the trial is necessary for our review of the trial court’s decision. See Manke v. Physicians Ins. Co. of Wisconsin, Inc., 2006 WI App 50, ¶60, 289 Wis. 2d 750, 712 N.W.2d 40. Zohimsky could have ordered and paid for the transcript. The court reporter’s name, Michelle Stello, is noted in the clerk’s minutes. It was Zohimsky’s “responsibility to present a complete record for the issues on which [she] seeks review, and we assume that any missing material that is necessary for our review, supports the [trial] court’s determination.” See id. Therefore, we will assume that all facts necessary for the trial court’s judgment against Zohimsky were found against her and in favor of Doocy. This is an almost insurmountable hurdle for Zohimsky.
Statement
of “Facts”
¶4 We have enclosed the word “facts” in quotations because, in the absence of a transcript, we have had to piece together the parties’ arguments in an attempt to determine what actually happened. We are assisted by various parts of the record, which includes letters, the complaint, answer and counterclaim and other material. But the only facts which would be dispositive to this appeal are the facts found by the trial court, which would be found in the transcript Zohimsky failed to provide. Thus, whether the “facts” we will relate reflect what occurred at trial is uncertain.
¶5 On May 27, 2008, Zohimsky drafted and signed an offer to
purchase property in
¶6 The purchase agreement provided that Zohimsky would purchase the property for $125,000. The agreement also stated that it was contingent on Zohimsky’s obtaining a mortgage loan at an annual interest rate not exceeding six percent. The financing section of the agreement stated that if financing were not available on the terms stated in the offer, Zohimsky must give Doocy written notice of her failure to obtain financing. Additionally, the contract allowed Doocy ten days to give Zohimsky written notice of her decision to finance the transaction.
¶7 On May 28, 2008, Zohimsky informed Brian Doocy that she no
longer wished to purchase the property. On
May 29, 2008, Zohimsky sent a letter to
¶8 On June 2, 2008,
¶9 Doocy filed a complaint alleging that Zohimsky breached their contract and sought judgment for $1,500. Doocy stated that this included additional expenses of renegotiating an underlying land contract plus carrying costs. Mediation was unsuccessful and the case went to trial. The trial court found in favor of Doocy and awarded her $1,000 in damages and $392 for attorney fees and costs. See Wis. Stat. §§ 799.25 and 814.04(1). Zohimsky appeals.
Discussion
¶10 Zohimsky argues that the small claims judgment in this action
is invalid. She claims that she did not
breach the contract because she was subject to duress and was unable to satisfy
the financial contingency of the offer to purchase agreement. Alternatively, Zohimsky asserts that Doocy
sought actual damages in her complaint and therefore may not recover earnest
money as liquidated damages. Accordingly,
Zohimsky claims that there was no basis for the trial court to award attorney
fees. Finally, Zohimsky argues that she
was denied due process of law because the judge was biased and failed to file a
written opinion explaining his decision.
We address each argument in turn.
¶11 Zohimsky argues that she did not breach the contract because
she signed the contract under duress and was unable to meet the contract’s financing
contingency. We disagree. “The acceptance of an offer to purchase
property results in a binding contract.”
Gregory v. Selle, 58
¶12 Zohimsky claims Brian Doocy physically restrained her and put
undue pressure on her to buy the property.
However, she apparently made this argument in the trial court and the
trial court apparently found against her.
Had Zohimsky filed the transcript of her trial, we could examine the
trial court’s reasons for disbelieving Zohimsky’s claim of duress. Without a transcript, we assume the circuit
court “implicitly made those findings of fact” necessary to support its
decision. See County of Dunn v. Goldie H., 2001 WI 102, ¶44, 245
¶13 Moreover, it appears that Zohimsky failed to follow the terms of the contract regarding the financing contingency.[3] Under the terms of the offer to purchase the property, Zohimsky was required to obtain a thirty-year loan of $50,000 or more at an annual rate of interest not exceeding six percent. If Zohimsky failed to secure a loan in this amount, she was obligated to notify the owner, Doocy,[4] and provide copies of the lenders’ rejection letter or other evidence of unavailability within twenty-one days of signing the contract, in order for the contract to be rendered void. There is no evidence in the record that Zohimsky notified Doocy about her failure to secure a loan in the required amount twenty-one days after signing the agreement. Zohimsky only provided a letter from the bank, stating what the interest rates were for a thirty-year fixed rate mortgage. That letter from the bank does not state whether Zohimsky even applied for a loan. More importantly, Zohimsky has not produced any documents establishing that she communicated her failure to secure a loan to Doocy within twenty-one days of signing the offer to purchase the property. Accordingly, we reject Zohimsky’s argument that she did not breach a valid contract with Doocy.
¶14 Next, Zohimsky argues that the trial court improperly awarded Doocy actual damages. The trial court did not do that.
¶15 When a buyer defaults in a failed real estate transaction and
the seller wants damages, the seller has the option of pursuing either
liquidated damages or actual damages, but not both. Osborn v. Dennison, 2009 WI 72, ¶48,
318
¶16 While a seller must release a buyer’s earnest money to pursue a claim for actual damages, nothing prevents a seller from advancing a claim for both types of damages in his or her complaint. Under Wis. Stat. § 802.02(1m), “[r]elief in the alternative or of several different types may be demanded.” Thus, at the time a complaint is filed, an aggrieved seller can demand both liquidated damages and actual damages in a breach of contract matter. See Wis. Stat. § 802.02(1m).
¶17 Based on Wis. Stat. § 802.02(1m)
and Osborn,
we affirm the circuit court’s judgment that Doocy was entitled to the earnest
money. Under Wis. Stat. § 802.02(1m), Doocy was permitted to seek
both liquidated and actual damages in her complaint, even though she ultimately
could not recover both forms of damages.
We agree that Doocy sought actual damages in her complaint by stating she
incurred additional expenses in renegotiating the land contract and had
carrying costs through Zohimsky’s breach of contract. At the same time, Doocy stated that she was
seeking the earnest money. Thus, Doocy sought
both liquidated and actual damages in her complaint, which is permitted under Wis. Stat. § 802.02(1m). By failing to release Zohimsky’s earnest
money to her, Doocy limited herself to seeking liquidated damages in the form
of the earnest money. See Osborn, 318
¶18 The trial court judge was entitled to award Doocy attorney fees. Doocy was represented by an attorney. In small claims cases, an award of attorney fees is limited to the amount recoverable under Wis. Stat. § 814.04(1) and (6), “except if the amount of attorney fees is otherwise specified by statute.” Wis. Stat. § 799.25(10). Under Wis. Stat. § 814.01(1), when judgment is entered for a value equal to or less than $5,000, but is $1,000 or more, a judge must award attorney fees in the amount of $300. Here, the trial court entered a judgment in Doocy’s favor in the amount of $1,000. Therefore, the trial court judge was required to award Doocy $300 in attorney fees. See Wis. Stat. § 814.04(1).
¶19 Finally, we conclude that Zohimsky was not denied due process
when the trial court failed to file a written opinion stating its reasons for
finding in favor of Doocy. Wisconsin Stat. § 799.215 reads: “[U]pon a trial of an issue of fact by the
court, its decision shall be given either orally immediately following trial or
in writing and filed with the clerk within sixty days after submission of the
cause, and shall state separately the facts found and the conclusions of law
thereon; and judgment shall be entered accordingly.” We must assume that the trial court gave its
decision orally. See Manke, 289
¶20 Zohimsky’s argument that the trial court’s decision should be
overturned because the trial court judge was partial fails to satisfy
¶21 We cannot apply the subjective test because apparently, Zohimsky
never asked the trial court judge to recuse himself and thus the court never
had to determine whether it could proceed impartially. Under the objective test, the content of the clerk’s
minutes and the trial court’s decision do not reveal actual bias. Zohimsky claims that because Doocy was an
employee of
¶22 We have no basis to overturn the trial court’s judgment because
Doocy failed to notify Zohimsky that she obtained legal representation for the
trial proceedings. Zohimsky fails to
cite any authority prohibiting Doocy from obtaining legal representation during
the trial proceedings without notifying Zohimsky. Arguments unsupported by references to legal
authority will not be considered. Pettit,
171
By the Court.—Judgment affirmed.
Not
recommended for publication 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) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] At some point after the parties signed the contract but before this appeal was filed, Danielle Oftedahl married one Brian Doocy, and assumed his surname. Zohimsky does not complain of this difference in names.
[3] Once again, we are hampered by Zohimsky’s failure to provide us with a transcript. We reiterate that in the absence of a transcript, we will assume all facts necessary to support the trial court judgment. See Manke v. Physicians Ins. Co. of Wisconsin, Inc., 2006 WI App 50, ¶60, 289 Wis. 2d 750, 712 N.W.2d 40.
[4] Zohimsky
questions whether Doocy is the actual owner of the property, but has not
provided any evidence suggesting otherwise nor any reason why this court should
think that Doocy is not the owner of the property. We can assume the circuit court “implicitly
made those findings necessary to support its decision,” including a finding
that Doocy is the owner of the property.
See Town of Avon v. Oliver, 2002 WI App 97, ¶ 23, 253
[5] The
primary basis of Zohimsky’s argument is that Doocy was not entitled to actual
damages. Although the trial court did
not specify that it awarded Doocy “liquidated damages,” as opposed to “actual
damages,” we can infer that the trial court found Doocy was entitled to only
liquidated damages, not actual damages. Oliver,
253
[6] In
her brief, Zohimsky cites Guthrie v. Wisconsin Employment Relations
Comm’n, 111