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COURT OF APPEALS DECISION DATED AND RELEASED September 21, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1933-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
MACK SEAY,
Plaintiff-Appellant-Cross-Respondent,
v.
DEL GARDNER, and
LUCREETA GARDNER,
Defendants-Respondents-Cross-Appellants.
APPEAL and CROSS-APPEAL
from a judgment of the circuit court for Dane County: ANGELA B. BARTELL, Judge.
Affirmed.
Before Gartzke, P.J.,
Dykman and Vergeront, JJ.
PER CURIAM. Mack Seay appeals, and Del and Lucreeta
Gardner cross-appeal, from a judgment awarding the Gardners money damages. The litigation concerned the Gardners'
tenancy on property owned by Seay. The
jury found that Seay breached the rental contract in several respects and
brought an eviction action against the Gardners in retaliation when they
consequently withheld rent.
The issues on appeal are
whether the trial court properly sanctioned Seay by excluding certain evidence
at trial, whether the evidence absolutely established a defense to the
retaliatory eviction claim, and whether the trial court erred by awarding
damages on an unpleaded claim. On
cross-appeal, the issue is whether the Gardners are entitled to additional
damages. We conclude that any error in
excluding evidence was harmless, that Seay did not prove an absolute defense to
the retaliatory eviction claim, and that the court properly allowed recovery on
the unpleaded claim. We also conclude
that the Gardners should not receive additional damages. We therefore affirm.[1]
The Gardners began
renting from Seay on October 2, 1993.
After moving in, they discovered numerous problems with the condition of
the premises. As a result of Seay's
failure to remedy those problems, the Gardners withheld one-half of the
November rent, pursuant to the rent abatement statute, § 704.07(4), Stats.
Seay responded with a
five-day notice to pay the remaining rent due or vacate the premises. When the Gardners did neither, he commenced
an eviction action. On November 30, 1993,
the trial court dismissed the eviction complaint and held that no additional
rent was due for November, in effect upholding the Gardners' rent abatement
claim.
Several hours later,
still on November 30, Seay served the Gardners with another five-day notice,
demanding that they pay the November rent that the trial court had just
declared not due, and the December rent, or vacate the premises. When the Gardners again failed to do either,
Seay commenced this action, on December 22, 1993, with another eviction
complaint.
In their answer to the
complaint, the Gardners alleged retaliatory eviction and counterclaimed for
actual and punitive damages. Seay did
not file a timely reply to the counterclaim.
The trial court then ordered him to reply within seven days. When he failed to do so, the Gardners moved
for a default judgment. Seay finally
filed his reply several days after the trial court's deadline. The Gardners then moved to strike the reply
as late. Seay failed to appear at the
hearing on the Gardners' motions. The
court struck the reply, granted default judgment on the retaliatory eviction
claim, and set the damage issue for trial.
Seay subsequently
dropped the eviction complaint. The
Gardners left the premises about three weeks before the trial.
At trial, the court
revised its earlier ruling and required the Gardners to prove retaliatory
eviction, as well as damages. The only
sanction the court actually imposed on Seay for defaulting was an order
precluding him from introducing affirmative evidence on the retaliatory
eviction issue. The jury found for the
Gardners on all issues and awarded them $675 in actual damages for the
retaliation and $3,800 in punitive damages.
The Gardners also received an award of $450 representing the reduced rental
value of the premises due to Seay's failure to repair various defects.
Wisconsin
Adm. Code § ATCP 134.09(5) provides that "[n]o landlord
shall terminate a tenancy ... in retaliation against a tenant because the
tenant has: ... (c) [a]sserted, or attempted to assert any right specifically
accorded to tenants under state or local law." Violation of this rule entitles any person suffering pecuniary
loss as a result to recover double damages plus a reasonable attorney's
fee. Section 100.20(5), Stats. On motions after verdict, the Gardners moved under § ATCP
134.09(5) to double the $675 awarded for retaliatory eviction damages and for
an additional $1,000 in reasonable attorney's fees.[2] Seay moved to set aside the verdict.
At the hearing on these
motions, the Gardners also asked the court to resolve the parties' newly added
dispute regarding return of the Gardners' security deposit. The court noted that it was not pleaded or
tried, but informed Seay that if it was not now resolved, the Gardners could
bring a separate action for double damages and attorney's fees under Wis. Adm. Code § ATCP 134.06 and
§ 100.20(5), Stats. Seay agreed that the court should decide it
and the court did, in the Gardners' favor.
The court also denied
Seay's motion to set aside the verdict and the Gardners' claim for double
damages and $1,000 in additional attorney's fees under § ATCP 134.09(5). The court reasoned that the rule applied
only to successful, not attempted, terminations of tenancies. The court added that even if double damages
were available, the Gardners would have to elect between receiving double
damages under the rule or actual damages plus the $3,800 in common law punitive
damages awarded in the verdict. The
court entered judgment accordingly, awarding the Gardners their actual and
punitive damages, plus damages on their security deposit claim, plus $7,640 in
attorney's fees, less the amount of rent the Gardners still owed Seay.
Seay first contends that
the trial court exceeded its authority by sanctioning him under the default
judgment statute, § 806.02, Stats. Under that section, the trial court can only
sanction a defendant. Pollack v.
Calimag, 157 Wis.2d 222, 235, 458 N.W.2d 591, 598 (Ct. App. 1990). However, we need not decide whether the
decision to exclude liability evidence was an impermissible exercise of
authority under § 806.02 because Seay was not harmed by that
decision. Seay stated throughout the
proceeding that he wanted to defend the retaliatory eviction claim by
collaterally attacking the trial court's decision in the first eviction action. However, Seay never appealed that decision
and it was final and therefore binding on him when this trial occurred. Once the trial court took judicial notice of
the decision that no rent was due for November, and instructed the jury
accordingly, Seay's defense no longer remained available to him.
The Gardners' remaining
evidence on retaliatory eviction was the timing of the notice and a letter Seay
received from the Gardners' counsel, before he commenced the eviction
proceeding, advising him that he could not evict the Gardners for nonpayment of
rent that the trial court held was not due.
Seay did not dispute this evidence and therefore needed no defense to
it. In effect, once the jury learned of
the trial court's eviction decision, the timing of the notice, and Seay's
disregard of the subsequent warning not to evict, only one reasonable inference
was available. Seay could have done
nothing to avoid that inference. The
error complained of therefore provides no basis for reversal. See § 805.18(2), Stats. (no judgment shall be reversed
unless the error complained of has affected the substantial rights of the party
seeking reversal).
Seay did not have an
absolute defense to the retaliatory eviction claim. He relies on § 704.45(2), Stats.,
providing that an eviction action is not retaliatory if the tenant has not paid
rent that is due. However, Seay ignores
the fact that the eviction action he commenced here was based on failure to
comply with the five-day notice served on November 30, 1993. When he served that notice, the Gardners had
just received a judicial declaration that no rent was due. Therefore, the Gardners' subsequent decision
to withhold some of December's rent did not permit the eviction action because
no subsequent termination notice was served on them for that act of
withholding.
The trial court properly
resolved the security deposit dispute on motions after verdict. Seay contends that the trial court obtained
his uninformed consent to trying that issue by advising him, incorrectly, that
the Gardners could commence a separate action against him if he did not so
consent. He contends that the trial
court was wrong because the claim preclusion doctrine would bar any such
action. That is not correct. Having just moved out, the Gardners' cause
of action on the security deposit would not have accrued before the trial. Seay's consent was not, therefore, based on
misinformation from the court.
The Gardners are not
entitled to additional damages under § ATCP 134.09(5) and § 100.20(5),
Stats. A purpose of statutory double damages under § 100.20(5) is
to deter wrongful acts. Armour v.
Klecker, 169 Wis.2d 692, 701, 486 N.W.2d 563, 566 (Ct. App. 1992). That is also the purpose of punitive
damages. Wis J I—Civil § 1707 (1994). The Gardners' acceptance of the punitive damages award therefore
precluded a duplicative recovery on their § 100.20(5) claim.[3] We therefore need not decide whether the
statutory damages were available despite the fact that Seay was unsuccessful in
his eviction attempts.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.