COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER 7, 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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0777
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
ROBERT STANEK,
Plaintiff-Appellant,
v.
JOHN C. MICKELSON,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for St. Croix County:
ERIC J. LUNDELL, Judge. Affirmed
in part and cause remanded with directions.
LaROCQUE, J. Robert Stanek appeals a small claims judgment in favor of his
former landlord, John Mickelson. Stanek
raises various issues regarding the sufficiency of the evidence and trial court
procedure that cannot be reviewed without a trial transcript. Stanek also notes, however, that the court
appears to have mistakenly included Stanek's statement of costs in Mickelson's
judgment. The matter is remanded for the
limited purpose of recalculating Mickelson's court costs. Because this court concludes that the
remaining legal questions are without merit, the judgment is affirmed in all
other respects.
The lack of a transcript
limits review to those parts of the record available to the appellate
court. In re Hyde, 76
Wis.2d 558, 563, 251 N.W.2d 791, 793 (1977).
This court by order dated April 4, 1995, dismissed Stanek's motion for a
transcript paid for at public expense and referred him to the trial court
pursuant to State ex rel. Girouard v. Circuit Court, 155 Wis.2d
148, 454 N.W.2d 792 (1990). There has
been no appeal of the trial court decision regarding the request for a
transcript at public expense. By order
dated May 22, 1995, this court noted Stanek's delinquency regarding his
required statement on transcript and, after extending the time for filing
without effect, ordered the appeal to proceed without transcripts. The order also precluded Stanek from raising
issues on appeal that require a transcript for resolution.
Stanek contends that it
was "procedural error" for the court to entertain Mickelson's
counterclaim outside the $2,000 small claims limit. Although the jurisdictional limit for a money judgment brought
pursuant to ch. 799, Stats., is
now $4,000, the increase is applicable to actions commenced after August 1,
1994, the
effective
date of the amendment. See 1993 Wis. Act 181 § 2.[1] The clerk's minutes demonstrate the court
awarded a judgment on the counterclaim only for $2,000 (less the award of
$1,400 on Stanek's doubled security deposit claim). Although the absence of a transcript prevents a review of the
trial court's rationale, it is apparent that the court reduced the counterclaim
to $2,000 based upon the statutory limit.
Stanek does not develop his argument concerning the error other than to
state it in a single conclusory sentence.
An issue raised but not briefed or argued is deemed abandoned. Reiman Assocs. v. R/A Adver.,
102 Wis.2d 305, 306 n.1, 306 N.W.2d 292, 294 n.1 (Ct. App. 1981). Arguments unsupported by reference to legal
authority will not be considered. State
v. Shaffer, 96 Wis.2d 531, 545-46, 292 N.W.2d 370, 378 (Ct. App.
1980). Stanek does not provide any
legal authority to demonstrate a lack of jurisdiction to hear a counterclaim as
long as the court limits the claim to the statutory amount.
Finally, Stanek contends
that the court erroneously awarded Mickelson's court costs based upon Stanek's
statement of costs. Stanek's contention
is supported by the record. Stanek
submitted a bill of costs dated January 6, 1995, totaling $270.85. The notice of entry of judgment dated
January 9, 1995, in favor of Mickelson awarded costs to Mickelson totaling
$270.85. It would appear that this was
an administrative error in light of the clerk's minutes of the trial dated
December 21, 1994. Those minutes
indicate Mickelson was to recover costs and disbursements and state,
"submit costs issues in writing ... submit Bill of Costs." Mickelson submitted a bill of costs of his
own, totaling $804.10, date stamped by the clerk of court January 11,
1995. Because the issue has not been raised
or briefed on appeal, this court need not resolve the timeliness or validity of
Mickelson's bill of costs. He included
$649.10 for attorney fees as well as "wages" for witnesses. The matter is remanded to the trial court to
resolve the apparent miscalculation of costs.
The court may enter a revised judgment showing the proper sum, if any,
for Mickelson's costs.
By the Court.—Judgment
affirmed in part and cause remanded with directions.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.
[1] This court previously reversed and remanded for further proceedings a judgment on Mickelson's counterclaim in this action, Stanek v. Mickelson, No. 93-2638 (Wis. Ct. App. June 1, 1994). The basis of the decision was the failure to give the tenant an opportunity to be heard regarding the counterclaim and the trial court's failure to consider the application of § 100.20(5), Stats., providing for a double damages award for failing to comply with the law regarding return of security deposits. Those concerns are no longer at issue in this appeal.