COURT OF APPEALS DECISION DATED AND RELEASED October 11, 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. 95-1138
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
ARTHUR D. DYER and
GEORGE J. JENICH,
Plaintiffs-Respondents,
v.
ROSEMARIE ANNONSON,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Racine County: DENNIS J. FLYNN, Judge. Affirmed.
BROWN, J. Rosemarie
Annonson, arguing pro se, appeals a small claims judgment of eviction and
restitution in favor of her landlords, Arthur D. Dyer and George J.
Jenich. We affirm.
Annonson and her
landlords entered into a written month-to-month lease on a rental unit in
Caledonia on February 1, 1994. Various
disputes arose between the parties.
Annonson made complaints concerning the condition of the premises, the
safety of drinking water on the property and the electrical wiring of the
landlords' rental units. The landlords
objected to Annonson's keeping of numerous pets, her improper use of a garage
and her burning of brush on the property.
At any rate, on December 30, 1994, the landlords notified Annonson that
they would not renew the lease.
Annonson refused to move and the landlords brought an eviction
action. After a three-day trial, the
trial court found for the landlords.
Annonson appeals.
Annonson maintains that
the trial court neglected its duty under § 885.10, Stats., to waive witness fees and to direct the subpoena of
witnesses in light of her indigence.
She further argues that the trial court erred both in its rulings
regarding the admissibility of certain documentary evidence and in its
conclusion that the landlords' termination of her lease was not a retaliatory
eviction.
We find no merit in
Annonson's contention that under § 885.10, Stats., a trial court is required in a small claims
proceeding to waive witness fees for an indigent defendant or to direct the
subpoena of witnesses. The statute
Annonson relies upon reads, in relevant part:
the judge or court commissioner, in
any paternity proceeding or criminal action or proceeding, or in any other case
in which the respondent or defendant is represented by the state public
defender or by assigned counsel ¼ may direct the witnesses to be subpoenaed ¼.
Section
885.10 (emphasis added). The civil
small claims proceeding which resulted in this judgment is neither a paternity
proceeding nor a criminal proceeding, nor was Annonson represented by the
public defender or by assigned counsel.
The statute, then, is inapplicable to this case and the trial court's
ruling on this matter is correct.
As to Annonson's
remaining claims, this court is prevented from adequately addressing them
because of her decision not to include a copy of the trial transcript on
appeal. In her reply brief, Annonson
writes, “A transcript of the circuit court proceeding in this case ¼ is
not necessary as the arguments raised do not [rely] on facts presented in
testimony. Sufficient evidence is
discernable in the record.” She is mistaken,
and the mistake seems to stem from her misunderstanding of the role of an
appellate court.
It is not the function
of an appellate court to retry the facts of the case, simply giving the parties
a new opportunity to prevail with a different court. Where there are disputed questions of fact on appeal, an
appellate court must give deference to the factual findings of the trial court
unless they are clearly erroneous. See
State v. Turner, 136 Wis.2d 333, 343-44, 401 N.W.2d 827, 832
(1987). Questions of law, however,
require independent appellate review of the trial court's findings. State v. Lee, 122 Wis.2d 266,
274, 362 N.W.2d 149, 152 (1985).
Annonson has argued that
the trial court erred in its rulings on the admissibility of certain documentary
evidence. The question on appeal,
however, is whether the trial court exercised its discretion in accordance with
accepted legal standards and the facts of record. See State v. Pharr, 115
Wis.2d 334, 342, 340 N.W.2d 498, 501 (1983).
It is therefore necessary for this court to examine the trial court's
reasoning. Without a trial transcript,
we are unable to determine if its decision, based upon facts of record, was
faulty. We may not rely upon Annonson's
account of the trial court's ruling.
Indeed, without the trial transcript we are unable to even determine
whether any evidence was in fact excluded.
In the absence of a trial transcript, an appellate court therefore
assumes that every fact essential to sustaining the trial judge's exercise of
discretion is supported by the record. Austin
v. Ford Motor Co., 86 Wis.2d 628, 641, 273 N.W.2d 233, 239 (1979). For that reason, we must affirm.
We now address
Annonson's assertion that the landlords' election not to renew her lease was a
retaliatory eviction and that the trial court erred by finding otherwise. Section 704.45(1), Stats., states that a landlord may not refuse to renew a
lease “if there is a preponderance of evidence that the action or inaction
would not occur but for the landlord's retaliation against the tenant” for
asserting various legal rights. There
was a dispute between the parties in this case as to whether the landlords'
election not to renew the lease would have occurred but for Annonson's repeated
complaints to the landlords and to various municipal and state agencies. This is a dispute of fact, and we must
therefore apply the “clearly erroneous standard.” See Turner, 136 Wis.2d at 343-44, 401 N.W.2d
at 832. The trial court, having heard
all the testimony, apparently determined that the landlords had sufficient
reason aside from Annonson's complaints not to renew her lease. If Annonson wished to demonstrate to this court
that the trial court's finding was clearly erroneous and that she had met the
burden of proof at trial, she needed to support her contention by supplying
this court with the trial transcript.
In the absence of the transcript, this court is unable to determine
whether the trial court's finding was erroneous.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.