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COURT OF APPEALS DECISION DATED AND RELEASED JUNE 14, 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. 95-0472-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
CLYDE KREUTTER,
Plaintiff-Respondent,
v.
MIDWEST MEDICAL
HOMECARE, INC.,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Waukesha County: ROGER P. MURPHY, Judge. Affirmed.
ANDERSON, P.J. Midwest
Medical Homecare, Inc. (Tenant) appeals from a judgment of the circuit court
granting summary judgment in favor of Clyde Kreutter (Landlord). Because we conclude that there is no genuine
issue as to any material fact regarding the Tenant's claim and the Landlord is
entitled to judgment as a matter of law, we affirm.
This is a small claims
action involving a dispute between a landlord and a tenant. The parties entered into a lease for office
space which was to run from August 1, 1989 through July 31, 1990, at a rent of
$400 per month. The lease provided:
The term hereof shall begin the first day
of August, 1989, and shall end at 5:00 o'clock P.M. on the thirty-first day of
July, 1990 and thereafter from year to year under the same terms and
conditions, provided, however, that either party may terminate this lease by
giving written notice, sixty (60) days before the end of any term, of its
intention to do so.
In
May 1991, the Landlord gave written notice to the Tenant that the rent would
increase by $50 per month beginning August 1.
The Tenant began making these increased monthly payments on August 1,
1991. In May 1993, the Landlord again
raised the rent by $25 per month beginning August 1. The Tenant began making these payments on August 1, 1993. On December 17, 1993, the Tenant gave the
Landlord written notice of intent to terminate the lease as of February 28,
1994. The Landlord filed an action
seeking to recover five months of rent due from March through July of
1994. The trial court held, and both
the Landlord and the Tenant agree, that the Landlord's first notice increasing
the rent terminated the written lease agreement. The written lease therefore was for one year.
The Tenant filed a motion for summary
judgment in August 1994. An amended
motion for summary judgment was subsequently filed. The Landlord filed a motion for summary judgment on September 19,
1994. In its decision, the trial court
denied the Tenant's motion for summary judgment and granted summary judgment in
favor of the Landlord, stating: “[T]his
Trial Court has found ¼ that
the said year-to-year periodic tenancy was not properly terminated on February
28, 1994, but properly terminated effective at the end of that year's periodic
tenancy, on July 31, 1994.” The Tenant
appeals.
The Tenant argues that
the “court erred in ruling that the relationship between the parties was a
periodic yearly tenancy. The
relationship was a periodic monthly tenancy which was lawfully
terminated.” In determining the type of
tenancy involved in the present case, we must apply the facts to the applicable
landlord/tenant statutes. This is a
question of law which we review de novo.
See Park Bank-West v. Mueller, 151 Wis.2d 476, 482, 444
N.W.2d 754, 757 (Ct. App. 1989).
This case is before us
on a motion for summary judgment.
Questions of law are properly resolved on summary judgment. IBM Credit Corp. v. Village of Allouez,
188 Wis.2d 143, 149, 524 N.W.2d 132, 134 (1994). In reviewing summary judgment determinations, we apply the same
standards as the trial court. Posyniak
v. School Sisters of St. Francis, 180 Wis.2d 619, 627, 511 N.W.2d 300,
304 (Ct. App. 1993). A summary judgment
motion will be granted “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Section 802.08(2), Stats.
We agree with the Tenant
that § 704.03(2), Stats.,[1]
does not apply to the present case.
Section 704.03(2) provides:
Entry under
unenforceable lease. If a tenant
enters into possession under a lease for more than one year which does
not meet the requirements of sub. (1), and the tenant pays rent on a periodic
basis, the tenant becomes a periodic tenant.
If the premises in such case are used for residential purposes and the
rent is payable monthly, the tenant becomes a month-to-month tenant; but if the
use is agricultural or nonresidential, the tenant becomes a year-to-year tenant
without regard to the rent-payment periods.
Except for duration of the tenancy and matters within the scope of ss.
704.05 and 704.07, the tenancy is governed by the terms and conditions agreed
upon. Notice as provided in s. 704.19
is necessary to terminate such a periodic tenancy. [Emphasis added.]
The
lease was for a period of one year; therefore, § 704.03(2) is inapplicable.
We conclude from our
independent review of the record that the Landlord was entitled to summary
judgment as a matter of law pursuant to § 704.25(2), Stats. Section 704.25(2)
provides:
Creation of
periodic tenancy by holding over. (a) Nonresidential leases for a year or longer. If premises are leased for a year or longer
primarily for other than private residential purposes, and the tenant holds
over after expiration of the lease, the landlord may elect to hold the tenant
on a year-to-year basis.
(b) All other leases. If premises are leased for less than a year
for any use, or if leased for any period primarily for private residential
purposes, and the tenant holds over after expiration of the lease, the landlord
may elect to hold the tenant on a month-to-month basis; but if such lease
provides for a weekly or daily rent, the landlord may hold the tenant only on
the periodic basis on which rent is computed.
(c)
When election takes place.
Acceptance of rent for any period after expiration of a lease or other
conduct manifesting the landlord's intent to allow the tenant to remain in
possession after the expiration date constitutes an election by the landlord
under this section unless the landlord has already commenced proceedings to
remove the tenant.
In
the present case, the premises was leased for a year for nonresidential use,
placing it under subsec. (a). The
Tenant decided to pay the higher rate of rent and “hold over” after the
expiration of the lease agreement. The
Landlord elected to hold the Tenant on a year-to-year basis when it accepted
rent after the expiration of the lease.
See § 704.25(2)(c). There
is no genuine issue as to any material fact and the Landlord is entitled to
judgment as a matter of law; therefore, summary judgment was appropriately
granted. See State v. Alles,
106 Wis.2d 368, 391, 316 N.W.2d 378, 388 (1982) (stating that we will affirm a
trial court's decision where the court reaches the correct result but for the
wrong reason).
We do not read § 704.25,
Stats., as narrowly as the Tenant
suggests: “In this case the Landlord authorized
the Tenant to remain on the premises after the expiration of the lease provided
the tenant paid an additional fifty dollars per month in rent. A hold over as set forth in s. 704.25,
Stats., occurs when a tenant remains in the premises without permission from
the landlord.” Although our research
has been unable to uncover a suitable definition in the statutes of the term
“holding over,” 49 Am. Jur. 2d, Landlord
and Tenant § 378 (1995), provides helpful guidance:
As a general rule, if a landlord notifies a tenant for a fixed term,
before the termination of the term, that in case the tenant holds over beyond
the term the rent will be increased by a specified amount, the tenant will
become liable for the increased rental if he in fact holds over and either
remains silent with reference to the notice or fails to express nonassent to
the new terms.
¼.
A landlord's notice of a change merely in the amount of rent does not,
as to matters other than the amount of rent, affect the obligations or rights
of the tenant impliedly arising by reason of his holding over.
In
the present case, the Landlord notified the Tenant of the increased rent if the
Tenant were to hold over. Nothing was
ever said, nor was any agreement made, to change the tenancy to a term other
than year-to-year. Therefore, the
Tenant could not legally terminate the periodic tenancy before the end of the
rental year. See § 704.19(2), Stats.
The Tenant also argues
that “[t]he trial court erred by granting respondent summary judgment when a
dispute of material fact exists regarding the mitigation of damages.” We conclude that the Tenant waived the issue
of mitigation of damages. Although the
Tenant raised mitigation as an affirmative defense in its responsive pleading,
it was not raised or argued at the summary judgment hearing. The Landlord is correct in that the Tenant
should have raised the issue of mitigation at the summary judgment hearing by
responding with affidavits or otherwise, but not by relying upon the mere
allegations or denials of the pleadings.
See § 802.08(3), Stats. The issue of mitigation was waived by the
Tenant's failure to properly raise the issue before the trial court. See Evjen v. Evjen, 171
Wis.2d 677, 688, 492 N.W.2d 361, 365 (Ct. App. 1992).
The Landlord states in
its brief: “The trial court did not
properly grant the appellant damages for 200% of the appellant's security
deposit because the lease which is the subject of this case is not a
residential property.” The Landlord
raises this issue as the third issue in its series of arguments. We do not address this issue because the
Landlord did not follow the correct appellate procedure. Section 809.10(2)(b), Stats., provides:
Cross-appeal. A respondent who seeks a modification of the
judgment or order appealed from ¼ shall file a notice of cross-appeal within the period
established by law for the filing of a notice of appeal, or 30 days after the
filing of a notice of appeal, whichever is later. A cross-appellant has the same rights and obligations as an
appellant under this chapter.
In
order to argue for a modification of the trial court's order, the Landlord was
required to file a cross-appeal.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.