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COURT OF APPEALS DECISION DATED AND RELEASED October 24, 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. 95-0902
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
PAUL EVERS,
Plaintiff-Appellant,
v.
EVERETT FRYER,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JACQUELINE D. SCHELLINGER, Judge.
Affirmed.
SCHUDSON, J.[1] Paul Evers appeals from a judgment[2]
dismissing his small claims complaint against his former landlord, Everett
Fryer, for the alleged wrongful withholding of Evers's security deposit. The trial court held that an accord and
satisfaction existed after Evers cashed Fryers's check, which was only for a
portion of Evers's security deposit.
This court concludes that the trial court correctly concluded an accord
and satisfaction existed and, therefore, the judgment is affirmed.
The relevant facts are
undisputed. On March 28, 1994, Evers
gave Fryer thirty days written notice that he would be vacating the leased
premises. On April 12, Evers wrote
to Fryer claiming that he was entitled to 100% of his security deposit. In his letter, Evers stated, “You have no
basis for withholding any part of my security deposit. I have discussed your assertion [regarding a
dispute over a fence erected on the property] with an attorney and have been
advised that it has no basis in court.”
On May 9, Fryer wrote to
Evers, indicating that $442 of the $545 security deposit was being retained
because of illegal tenants in the apartment, failure to clean “dog dirt,” the
need to repair a gate, and the need to replace a missing doorknob and a
fence. Fryer enclosed a check for
$103, specifically stating, “I feel this is a very fair settlement” in light of
the fact that he (Fryer) was not “at this point” charging Evers for additional
costs related to other problems during Evers's tenancy.
On May 28, Evers served
Fryer with a small claims summons and complaint for wrongful withholding of his
security deposit. Three days later,
Evers cashed Fryer's check. A small
claims hearing was held on February 13, 1995, where the trial court stated:
My understanding is that when the
security deposit return was made, that Mr. Evers held on to the check for about
four weeks and that then there were some discussions between himself and Mr.
Fryer where Mr. Fryer was claiming additional damages for a carpet he claimed
had been destroyed by pets owned by Mr. Evers, and so Mr. Evers then decided to
cash the check upon advice of counsel.
[Evers]
claimed he talked to [a legal aid attorney] who told him it was probably best
to cash the check so you at least have some reimbursement for your security
deposit.
The
trial court concluded that an accord and satisfaction existed between the
parties and dismissed Evers's complaint.
Evers appeals.
Whether the facts
fulfill a particular legal standard presents a legal question. See City of Brookfield v.
Milwaukee Metro. Sewerage Dist., 141 Wis.2d 10, 14, 414 N.W.2d 308, 309
(Ct. App. 1987). This court
independently reviews the trial court's determination. See In re Estate of Karrels,
148 Wis.2d 448, 450, 435 N.W.2d 739, 740 (Ct. App. 1988). Evers argues that an accord and satisfaction
was not reached and, alternatively, if one did exist, that it would be contrary
to public policy.
“An ‘accord and
satisfaction' is an agreement to discharge an existing disputed claim; it
constitutes a defense to an action to enforce the claim.” Flambeau Prods. Corp. v. Honeywell
Info. Sys., Inc., 116 Wis.2d 95, 112, 341 N.W.2d 655, 664 (1984). “[A]n accord and satisfaction requires an
offer, an acceptance, and consideration.”
Id. In order for
an accord and satisfaction to exist, the offer must be assented to. “Assent does not ... require mental assent
or a ‘meeting of the minds.'” Hoffman
v. Ralston Purina Co., 86 Wis.2d 445, 454, 273 N.W.2d 214, 217
(1979). The question is not the actual
intent of the offeree, but the offeree's manifested intent. Id. Assent or acceptance of an accord and satisfaction can be
manifested by word or action. Id. “[I]f a check offered by the debtor as full
payment for a disputed claim is cashed by the creditor, the creditor is deemed
to have accepted the debtor's conditional offer of full payment notwithstanding
any reservations by the creditor.” Flambeau,
116 Wis.2d at 101, 341 N.W.2d at 658.
Additionally, the
supreme court in Flambeau explained:
First,
the law in Wisconsin has long been that payment in full settlement of a claim
which is disputed as to amount discharges the entire claim. Resolution of an actual controversy
involving some subject of pecuniary value and interest to the parties is
sufficient consideration of an accord and satisfaction.
A second rule, also of long‑standing, is
that payment of part of a debt which is not disputed as to amount does not
discharge the debt altogether, even when it is expressly agreed that the
partial payment is received in full satisfaction. The debtor's mere refusal to pay the full claim does not make it
a disputed claim. Where the refusal is
arbitrary and the debtor knows it has no just basis, the payment of less than
the full amount claimed does not operate as an accord and satisfaction even
though it is tendered and received as
such. This rule is based on the
principle that a part payment furnishes no consideration for relinquishing the
balance of the debt.
Id. at
113‑114, 341 N.W.2d at 664 (citations omitted). Most significantly, for purposes of the instant case, the supreme
court reiterated:
The
doctrine of accord and satisfaction includes safeguards designed to protect a
creditor from an overreaching debtor:
there must be a good faith dispute about the debt; the creditor must
have reasonable notice that the check is intended to be in full satisfaction of
the debt.
Id. at
111, 341 N.W.2d at 663.
Here, there was a “good
faith dispute about the debt.”
Additionally, Evers had “reasonable notice that the check is intended to
be in full satisfaction of the debt” because it was accompanied by Fryer's
letter, which was more than a “mere refusal to pay the full claim.” It detailed the reasons for withholding
exact amounts and specified that “this is a very fair settlement.” Thus, Evers received reasonable notice that
the $103 check was intended to be in full satisfaction so, when he cashed the
check, there was an accord and satisfaction.
Evers also contends that
“the doctrine of accord and satisfaction [should not be applied] to defeat a
residential tenant's security deposit claim” given the public policy
surrounding landlord-tenant law in Wisconsin.
His arguments are powerful. They
are, however, arguments more properly addressed to our state legislature or
supreme court, given Evers's effort to fashion an exception to the general
doctrine of accord and satisfaction.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.