COURT OF APPEALS DECISION DATED AND FILED January 19, 2011 A.
John Voelker Acting 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 Nos. |
2010AP756 |
2009AP1459 |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT II |
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Kristine A. Panenka,
Plaintiff-Respondent, v. Kimberly Panenka,
Defendant-Appellant. |
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APPEAL
from judgments of the circuit court for
¶1 BROWN, C.J.[1] This is an appeal of two small claims judgments. Both were awarded to Kristine Panenka for reimbursement of money given to her sister, Kimberly Panenka. Kimberly[2] appeals both judgments. She contends that because they add up to more than $5000, they exceed the jurisdictional limit for small claims. She also argues that the trial court erred in granting judgment on one of the loans under a theory of unjust enrichment. Kristine responds that because there are two separate judgments, neither of which exceeds $5000, there is no jurisdictional issue, and the trial court’s findings regarding unjust enrichment should be upheld. We agree with Kristine, and affirm.
FACTS
¶2 On March 10, 2009, Kristine filed two separate small claims lawsuits alleging that Kimberly had failed to repay three loans. One of the complaints alleged that on December 4, 2007, Kristine gave Kimberly $4750 to help her pay her mortgage. A second lawsuit alleged that later that same day, Kimberly asked Kristine for an additional loan of $1100. The second lawsuit also sought reimbursement in the amount of $845.40 for sums paid by Kristine on December 10, 2007, when Kimberly asked Kristine to pay her dental bill.
¶3 At trial, Kristine testified that on December 4, 2007, Kimberly had contacted her asking to borrow money so that Kimberly could make her monthly mortgage payment. Kristine stated that she wrote a check for $4750 and deposited it at Kimberly’s bank. Several hours later the same day, Kimberly contacted her to request an additional $1100 because the loan for $4750 was not enough. In response to the second call, Kristine stated that she took out a cash advance on her credit card and deposited $1100 into Kimberly’s account at another bank location. She offered as evidence two separate bank deposit receipts and a handwritten note from Kimberly to Kristine, which stated “I, Kim[berly] Panenka, agree to pay back Kris[tine] Panenka $5,850.00 that she loaned me on December 4, 2007.”
¶4 Regarding the third alleged loan, Kristine testified that on December 10, 2007, Kimberly contacted Kristine to request that she loan Kimberly money to pay an outstanding dental bill in the amount of $845.40. That day, Kristine paid Kimberly’s dentist $845.40 by credit card, which was evidenced at trial by both Kristine’s credit card statement and a receipt. Kristine testified that she requested repayment on all three loans from Kimberly several times but that they were never repaid.
¶5 Kimberly also testified at trial as to her version of the
facts. Kimberly agreed that she had requested a loan from Kristine so that she
could pay her mortgage, but she stated that Kristine had told her that she only
had $4750 to give. Kimberly then
testified that later in the day, her sister contacted her with the idea that
Kristine could obtain an additional $1100 cash advance from her credit card. Kimberly also acknowledged that she asked
Kristine to pay her dental bill, but she denied any agreement to repay Kristine
that money. On cross-examination, Kimberly admitted that the dental bill
payment was not a gift, but stated
that she and Kristine had a long history of paying for things for each other
without expecting repayment. She claimed
that the dental payment was part of that arrangement, and listed several favors
she had done for Kristine that had gone uncompensated.
¶6 Following the close of evidence, Kimberly requested that the trial court only allow judgment on one of Kristine’s claims in the amount of $4750 because the total of both claims would exceed the small claims jurisdictional limit of $5000. The trial court pointed out that Kimberly had not previously brought a motion on the issue, but then stated that there were “three separate and distinct claims by the plaintiff.” Noting Kristine’s credibility, the trial court found that Kristine made two separate payments to Kimberly on December 4, 2007, and that they were “two separate transactions.” Because the amount sought in each of the two small claims cases was less than $5000, the trial court reasoned that the separate judgments were within the jurisdictional limit.
¶7 As to the $845.40 dental payment, the court rejected the idea that it was not meant to be repaid. Although there was no promissory note to evidence a loan, the court found in favor of Kristine. In so finding, the trial court stated the following:
All equities lie with the plaintiff and whether or not
there is a written contract to support the amount is not necessarily required. It’s whether or not someone gives something
over, pays something for somebody and it’s inequitable for that person to
retain the benefit of that without returning the money.
The trial court explicitly found there was no credibility with respect to Kimberly’s version of the events as to any offsets. Rather, the court stated “[t]he credibility here lies with the plaintiff concerning all of this.” The court thereupon granted two judgments in favor of Kristine for reimbursement of both mortgage loans and the dental payment—one for $4750 and the other for $1945.[3] Kimberly appeals.
DISCUSSION
¶8 Kimberly makes two arguments on appeal. First, she reiterates her argument that the
trial court could not award both judgments in Kristine’s favor because when
added together, they exceed the small claims jurisdictional limit. Her second claim is that there was
insufficient evidence to support the trial court’s finding in favor of Kristine
for the $845.40 dental payment based on a theory of unjust enrichment.
Jurisdictional Limit
¶9 Kimberly’s first argument appears to be that the trial court
lacked competency to award the judgments because when combined, they are in
excess of $5000. See Wis. Stat. § 799.01(1)(d)
(setting a jurisdictional limit of $5000 for small claims court).[4]
In our review, we will uphold the trial
court’s findings of fact unless they are clearly erroneous. Wis.
Stat. § 805.l7(2); Fryer v. Conant,159
¶10 This issue involves the interplay between the small claims
jurisdictional limit and procedure, so a brief overview of small claims case
law is helpful. First, small claims
courts have subject matter jurisdiction to hear claims that involve damages
greater than $5000, but they lack competency to award a single judgment higher
than that amount. Bryhan v. Pink, 2006
WI App 111, ¶¶15-16, 294
¶11 We see no reason why a small claims court may not hear two cases at the same time. And we see no reason why a court could not then render two separate judgments that, when combined, exceed $5000, so long as each individual judgment is under the $5000 limit. Kimberly cites no law that says otherwise. So, we are left with the same argument she made at the close of trial—that only one transaction occurred as shown by a single promissory note for $5850. This devolves into a factual determination to be made by the fact-finder as to the intent of the parties.
¶12 The trial court explicitly found that Kristine had given money to Kimberly through three separate transactions. In addition, it found that even though two of the transactions occurred on one day and shared a promissory note, they were still “two separate transactions.” Although the trial court heard both cases simultaneously, the issues and pleadings were not merged and each action resulted in a separate judgment. Kristine’s testimony that Kimberly asked for money on two separate occasions on the same day supports the trial court’s finding of fact that each of Kristine’s claims was based on a separate transaction. The trial court’s finding is not clearly erroneous, so we will not disturb it. See Wis. Stat. § 805.17(2). Then, since each claim was for an amount under the small claims jurisdictional limit of $5000, the trial court did not err when it concluded that the jurisdictional limit was not exceeded.
Unjust Enrichment
¶13 Kimberly’s second claim is based on sufficiency of the evidence
for the trial court’s finding of unjust enrichment requiring reimbursement of
the $845.40 dental payment. Once again, we
note that the trial court’s findings of fact will not be set aside unless they
are clearly erroneous. See Wis.
Stat. § 805.17(2). In
addition, unjust enrichment, or a quasi-contract, is a cause of action in
equity. See Puttkammer v. Minth, 83
¶14 There are three elements to a claim of unjust enrichment: (1) the plaintiff must confer a benefit upon
the defendant, (2) the defendant must appreciate or have knowledge of the
benefit, and (3) the defendant must have retained the benefit under
circumstances that would render it inequitable to retain the benefit without
paying the value of it. Watts
v. Watts, 137
¶15 The thrust of Kimberly’s argument is that the burden of proof
is on Kristine to show all three elements and that there was no evidence to
support the third element of an unjust enrichment claim—that it would have been
inequitable for Kimberly to retain the benefit without paying for it. She bases this argument on the fact that she
testified that the sisters were in the habit of helping each other out from
time to time without expectation of repayment.
She states that her testimony to this effect was uncontroverted because
Kristine did not explicitly refute it.
Instead, Kristine stated only that she had loaned Kimberly the money at
Kimberly’s request.
¶16 We point out that whether or not Kristine explicitly denied
Kimberly’s testimony, the trial court was free to disregard it entirely if it
chose to do so. See Dejmal, 95
¶17 And we disagree that Kimberly’s testimony regarding expectation of repayment was uncontroverted. Kristine stated that she “loan[ed]” Kimberly the money, which implies that she expected repayment. Thus, there was sufficient evidence for the trial court to find that Kristine gave her sister money with the expectation that she would be repaid. Therefore, it was not error for the trial court to conclude that it would be inequitable for Kimberly not to reimburse her.
By the Court.—Judgments affirmed.
This opinion will not be published pursuant to 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] Because both parties share the same last name, we will refer to them by their first names throughout this opinion.
[3] Costs and fees were also awarded, but they are not at issue so we do not discuss them.
[4] Although Kimberly did raise the jurisdictional issue in her answers to Kristine’s complaints, Kimberly did not make any motion to join, dismiss, or move the cases out of small claims court. Instead, she waited until after the close of evidence to argue that the total sum of the two separate small claims actions exceeded $5000 and therefore Kristine should be limited to one claim for $4750. Arguably, this issue is waived because of her failure to make a motion prior to trial. However, since Kimberly did raise the issue to the trial court and the trial court addressed it, we will consider it as well.