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COURT OF APPEALS
DECISION
DATED AND FILED
May 18, 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 No.�
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STATE OF WISCONSIN�
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IN COURT OF
APPEALS
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DISTRICT II
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Racine Riverside Marine, Inc.,
���������
Plaintiff-Respondent,
���� v.
Hansel M. DeBartolo, Jr.,
���������
Defendant-Appellant.
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����������� APPEAL
from a judgment of the circuit court for Racine County:� EMILY
S. MUELLER, Judge.� Affirmed.�
�1������� BROWN, C.J.���� Hansel M. DeBartolo, Jr., appeals a
judgment entered against him granting Racine Riverside Marine, Inc. a lien for
unpaid storage fees for his sailboat. �His grounds are improper jurisdiction, lack of
contract, improperly amended complaint and failure to comply with Wis. Stat. � 779.43 (governing lien
rights). �He also argues that sanctions
should have been levied against opposing counsel for failure to appear at a
March 15, 2010 hearing. �We affirm the
decisions of the trial court.
FACTS
�2������� On August 13, 2009, Racine Riverside brought a small claims
action against DeBartolo seeking to enforce a lien for unpaid storage and
service fees. �The services were provided
while DeBartolo�s sailboat was located in Wisconsin. �According to Riverside�s
complaint, DeBartolo began storing his boat with Riverside on October 1, 2006, and did so for
a total of five storage seasons. �Riverside alleged that he
did not pay $4080 in storage and cradle rental fees. �Prior to the beginning of each storage season,
Riverside
provided DeBartolo a standard rate sheet which furnished its storage and rental
charges and also provided a standard contract. �DeBartolo never signed the contracts but did
in fact store his boat with Riverside.
�Prior to bringing the lien action, Riverside mailed a letter
to DeBartolo advising him of the unpaid fees and possible lien action.
�3������� DeBartolo moved to dismiss the action on the grounds that
there was no jurisdiction and that the action was brought in an improper venue.
�Specifically, DeBartolo argued that there was no jurisdiction over him because
he was a citizen of Illinois and never signed
a contract with Riverside.
�He testified that Riverside took control of his boat in the
fall of 2007 and told him it would be winterized. �He then testified that he told Riverside he would let its
staff know in the spring when he would put the boat back into the water. �He never made payments after May 2007.
�4������� DeBartolo also argued that the action was brought in an
improper venue because he believed this was not a claim for a lien but a suit
for a monetary judgment. �Based in part on
this premise, DeBartolo argued that the claim violated the Fair Debt Collection
Practices Act (FDCPA), 15 USC � 1601 et seq., because the action would
have needed to have been brought in the county in which he resides. �In response to the motion, Riverside filed an amended complaint,
affirmative defenses and counterclaim to confirm that the relief which it
sought was a lien against DeBartolo�s sailboat for the unpaid fees and not an
action for a personal judgment against DeBartolo.
�5������� The trial court determined that Riverside could pursue the claim as one for a
lien in accordance with Wis. Stat. �
779.43(3), which grants marinas lien rights under certain circumstances. �The court also denied DeBartolo�s motions to
strike Riverside�s
amended complaint, affirmative defenses and counterclaim after a March 30, 2010
hearing. �DeBartolo has not provided a
transcript of that hearing.�
�6������� A trial was held in July 2010. �The record on appeal contains the trial
transcript but does not contain a transcript of the court�s oral decision. �A subsequent written order indicates that the
court granted the lien, and we can infer from DeBartolo�s appeal that it also denied
DeBartolo�s requested sanctions. �DeBartolo
now appeals. �He makes substantially the
same arguments he did at the trial level.
DISCUSSION
�7������� DeBartolo�s first argument is that the trial court did not
have proper jurisdiction over the case. �This
argument is two-fold. �First, DeBartolo
argues the trial court did not have jurisdiction over him because he is a
citizen of Illinois and did not sign a
contract in Wisconsin.
�Second, DeBartolo argues that the court
lacked jurisdiction because the action was not brought in the proper
venue.� He argues that the lawsuit arises
from a consumer transaction, which according to him, would have to have been
brought in the place were he resides.
�8������� Determining whether the trial court had jurisdiction is a
question of law that is reviewed de novo. �See Kett
v. Cmty. Credit Plan, Inc., 222 Wis.
2d 117, 586 N.W.2d 68 (Ct. App. 1998). �State
v. Beck, 204 Wis.
2d 464, 467, 555 N.W.2d 145 (Ct. App. 1996).�
DeBartolo argues that since there was no signed contract between himself
and Riverside and since he is a citizen of Illinois, he was not amenable to suit in Wisconsin.� However, Wis.
Stat. � 801.07(1) provides that Wisconsin courts have jurisdiction when
the defendant has an interest in personal property located in Wisconsin, and the relief sought is
�excluding the defendant from any interest or lien therein.�
�9������� The record clearly indicates that this was an action to
enforce lien rights.� Wisconsin Stat. � 779.43(3) states
that �every keeper of a � marina � and every person � keeping any� boats �
shall have a lien thereon and may retain the possession thereof for the amount
due for the keep, support, storage or repair and care thereof until paid.�� The record contains a June 30, 2009 letter
written by Riverside
to DeBartolo. �The letter indicates that Riverside intended to enforce its lien rights
under � 779.43(3) for its unpaid storage and service fees.� When DeBartolo did not pay the fees, Riverside brought the
small claims action to enforce its lien. �The amended complaint clarified that the
relief sought was a lien for the unpaid storage fees.�
�10����� Furthermore, the trial court heard extensive testimony that
DeBartolo�s sailboat was located in Wisconsin and that Riverside provided the
services for which it claimed the lien in Wisconsin. �DeBartolo does not deny that his boat was
located in Wisconsin
during the pertinent time.� Because this
is an action that is attempting to exclude the defendant from his personal
property that is located in Wisconsin,
the trial court had jurisdiction to hear the action, regardless of DeBartolo�s state
of residency.� See Wis. Stat. � 801.07(1).
�11����� DeBartolo alternatively argues that the action was brought in
an improper venue. �Determinations of venue are also questions
of law, which we review de novo. �See Irby v. Young, 139 Wis. 2d 279, 281, 407 N.W.2d 314 (Ct. App.
1987). �DeBartolo claims that the action
should have been brought in the county in which he resides pursuant to the
FDCPA.� See 15 U.S.C. � 1692i(a)(2).�
The FDCPA requirement that DeBartolo references applies to �[a]ny debt
collector who brings any legal action on a debt against any consumer�.� �15 U.S.C. � 1692i(a). �As we already explained, this is an action to
enforce a lien, not an action against a consumer to collect a debt.� See
Rosado
v. Taylor, 324 F. Supp. 2d 917, 924 (explaining that �[s]ecurity
enforcement activities fall outside the scope of the FDCPA because they aren�t
debt collection practices.�).� DeBartolo
offers us no compelling reason that the FDCPA should apply, so we will not
address it further.
�12����� DeBartolo�s next argument is that Riverside�s amended complaint, affirmative
defenses and counterclaim should have been stricken. �A trial court�s decision on a motion to strike
will be upheld unless there is an erroneous exercise of its discretion. �See State v.
Smith, 291 Wis.
2d 569, 573, 716 N.W.2d 482 (2006). �DeBartolo
argues that �because [Riverside]
filed his amended complaint without leave of court while [DeBartolo�s] motion
was pending,� the court erred �as a matter of law� in not granting DeBartolo�s
motion to strike. �While DeBartolo claims that his motion to
strike should have been granted as a matter of law, he cites to no applicable
law as authority.� This issue is
therefore undeveloped and we decline to do DeBartolo�s legal research for him. �See State v. Gulrud, 140 Wis. 2d
721, 730, 412 Wis. 2d
139 (Ct. App. 1987).� We affirm the trial
court�s ruling denying DeBartolo�s motions to strike Riverside�s amended complaint, affirmative
defenses and counterclaims.
�13����� DeBartolo�s third argument is that the circuit court erred in
granting judgment against him. �DeBartolo
argues, in only one sentence, that there was no consent given for the
sailboat�s storage, there was no contract between him and Riverside
and that Riverside
failed to post signage as required by Wis.
Stat. � 779.43(3), which states that no marina keeper �shall
exercise the lien upon any � boat unless the keeper gives notice of the charges
for storing � boats on a signed service order or by posting in some conspicuous
place in the � marina a card that is easily readable at a distance of 15 feet.�� His reply brief elaborates only by
referencing the record in two places: �where
DeBartolo testifies that Riverside was holding his sailboat �hostage,� and
where DeBartolo testifies that a photo accurately depicting signage is not
readable at a distance of fifteen feet, as required� by � 779.43(3).� As legal authority, he cites only to
� 779.43(3) and Bob Ryan Leasing v. Sampair, 125 Wis. 2d 266, 371
N.W.2d 405, a case dealing with the requirement of consent between parties for
a lien to arise.
�14����� As Riverside points out, the record does not contain the
transcript from the trial court�s oral decision.� This is an important omission because each of
these assertions raise credibility issues that the trial court had to decide,
i.e., did he consent or not?� Did the
parties agree to a contract or not? �Was
the sign readable or not?� Because we do
not have the trial court�s credibility assessments, we must assume that every
fact essential to the judgment of the court was in the record. �See Austin v. Ford Motor Co., 86 Wis. 2d 628, 641, 273
N.W.2d 233 (1979).� Thus, we assume that
the trial court found his story not credible.�
We affirm the trial court�s decision granting judgment against
DeBartolo.
�15����� As his final argument, DeBartolo contends that the trial court
should have awarded sanctions against Riverside
for failing to appear at a hearing on March 15, 2010. �This is a specious argument. �The hearing was scheduled by DeBartolo, who
was conveniently present. �But it is
unclear from the record whether Riverside had
actual notice of the hearing and it is
clear that DeBartolo did not serve Riverside
with notice as required by Wis. Stat. �� 801.14(2)
and 802.01(2)(b).� Interestingly, DeBartolo
then filed motions seeking sanctions against Riverside for failing to appear at the
hearing soon after it took place. �The
trial transcript indicates the trial court intended to make a final ruling on
the motion for sanctions as part of its oral decision.
�16����� As we already stated, the appellate record lacks the transcript
of the oral decision rendered by the trial court.� It is well-settled law that sanctions are
discretionary decisions of the trial court and those decisions will not be
overturned unless there is an erroneous exercise of discretion. �See Ably
v. Ably, 155 Wis.
2d 286, 293, 455 N.W.2d 632 (Ct. App. 1990); Lee v. GEICO Indem. Co.,
321 Wis. 2d
698, 706-07, 776 N.W.2d 622 (Ct. App. 2009). �Without the transcripts of the trial court�s
decision, just as we did the preceding issue, we assume that the trial court�s
decision was supported by the record and affirm.� See Austin, 86 Wis. 2d at 641 (�[T]he court will assume, in
the absence of a transcript, that every fact essential to sustain the trial
judge�s exercise of discretion is supported by the record.�).
����������� By the Court.�Judgment affirmed.
����������� This opinion will not be published. �See WIS. STAT RULE 809.23(1)(b)4.