COURT OF APPEALS DECISION DATED AND RELEASED SEPTEMBER 20, 1995 |
NOTICE |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95‑0145
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
JASON K. CROWELL
and DANA R. CROWELL,
Plaintiffs‑Respondents,
v.
STEPHEN KAO,
Defendant‑Appellant.
APPEAL from a judgment
of the circuit court for Racine county: DENNIS J. FLYNN, Judge. Affirmed.
ANDERSON, P.J. We affirm the trial court’s decision that
Stephen Kao intentionally misrepresented his knowledge of a water leak in a
house he sold to Jason K. and Dana R. Crowell and that he is accountable for
the costs of repairs. We do not address
the merits of the appeal because we are affirming the trial court on the
grounds that Kao has failed to follow the most basic rules of appellate
practice.[1] We also dismiss the Crowells’ request that
they be awarded costs and reasonable attorney's fees on the basis that this is
a frivolous appeal.
Kao defended himself in
the trial court and proceeds with this appeal pro se. The Wisconsin Supreme Court requires pro se litigants to satisfy
all of the procedural requirements that govern appeals. Waushara County v. Graf, 166
Wis.2d 442, 452, 480 N.W.2d 16, 20, cert. denied, 113 S. Ct. 269
(1992). In explaining why pro se
litigants are not granted leniency with regard to procedural rules or
substantive law, the supreme court wrote:
[Pro
se litigants] are bound by the same rules that apply to attorneys on
appeal. The right to
self-representation is “[not] a license not to comply with relevant rules of
procedural and substantive law.” While
some leniency may be allowed, neither a trial court nor a reviewing court has a
duty to walk pro se litigants through the procedural requirements or to
point them to the proper substantive law.
[Citations omitted.]
Id.
Kao’s initial brief and
reply brief are inadequate in every respect.
The briefs fail to fulfill the basic requirements established for an
appellant’s brief in Rule 809.19,
Stats. Kao’s main brief does not have a table of contents, a table of
cases, statutes and other authorities, Rule
809.19(1)(a); a statement of the issue presented or a synopsis of the trial
court’s ruling, Rule
809.19(1)(b); a statement on oral argument or publication, Rule 809.19(1)(c); a coherent statement
of the case, Rule 809.19(1)(d); a
rational legal argument supported by citation to pertinent parts of the record
and legal authority, Rule
809.19(1)(e); and Kao’s appendix does not include the findings or opinions of
the trial court, Rule 809.19(2).
The rules of appellate
procedure were not developed to make it impossible for a pro se appellant to
represent himself or herself; they are not an insurmountable barrier erected to
frustrate citizens. The rules of
appellate procedure were developed to compel an appellant to focus an appellate
court’s attention on the issues of fact and law that the appellant contends
were mistakenly decided by the trial court.
Compliance with the rules is required because a high-volume intermediate
appellate court is an error-correcting court that cannot take time either to
sift the record for facts that might support an appellant’s contentions, Keplin
v. Hardware Mut. Casualty Co., 24 Wis.2d 319, 324, 129 N.W.2d 321, 323
(1964); or develop legal argument on behalf of the appellant. State v. Gulrud, 140 Wis.2d
721, 730, 412 N.W.2d 139, 142-43 (Ct. App. 1987).
Kao has failed to make a
good faith effort to comply with the rules of appellate procedure and his
noncompliance has left us in the dark as to what factual findings and
conclusions of law he believes were erroneously made. We affirm the decision of the trial court because we are at a
loss to know what factual findings made by the trial court are a misuse of
discretion because they are not supported by substantial and credible
evidence. In addition, Kao’s failure to
develop any legal argument accompanied by citation to relevant authority
impedes our ability to consider whether the trial court reached the correct
conclusions of law.
We decline the Crowells’
request that we find this to be a frivolous appeal under Rule 809.25(3), Stats., and award them reasonable costs and attorney's
fees. Because we have not reached the
merits of the appeal, it is not possible to determine whether Kao knew or
should have known that the appeal was without any reasonable basis in the law. See Rule 809.25(3)(c)2.
And, the record is devoid of any substantial or credible evidence that
Kao has maintained this action for the purpose of harassing the Crowells. See Rule 809.25(3)(c)1.
This action was commenced by the Crowells who sought a de novo review in
the trial court after the court commissioner dismissed their original pro se
small claims action. Upon this state of
the record, we could not hold with any confidence, that Kao has maintained this
action for the purpose of harassing the Crowells.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] If we were to address the merits, we would adopt the learned trial court’s decision. The court’s bench decision is supported by substantial and credible evidence that Kao was informed about the water leak by the Racine Water and Wastewater Utilities more than one year before he sold the house to the Crowells, that he intentionally failed to disclose his knowledge and that the Crowells relied upon his representations to their detriment. See § 805.17(2), Stats. In the process of finding the controlling facts, the trial court exercised its discretion in weighing the evidence and determining the credibility of the witnesses. See Rucker v. DILHR, 101 Wis.2d 285, 290, 304 N.W.2d 169, 172‑73 (Ct. App. 1981). The trial court applied the appropriate law to the issues raised by the evidence and reached suitable conclusions of law.