COURT OF APPEALS DECISION DATED AND RELEASED May 14, 1996 |
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. 95-2640
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
MICHAEL R. WOLFE,
Plaintiff-Appellant,
v.
NATHEN SALOCH and
IRENE LORI SALOCH,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Milwaukee County:
FRANK T. CRIVELLO, Judge. Affirmed
in part, reversed in part and cause remanded with directions.
WEDEMEYER, P.J.[1] Michael R. Wolfe appeals from a judgment
rendered after a trial to the court involving a landlord-tenant dispute. Wolfe claims the evidence does not support
the trial court's conclusion that Nathen and Irene Lori Saloch are entitled to
damages in the amount of $389, and that the trial court erred in denying
Wolfe's claim that the landlord violated Wisconsin Department of Agriculture,
Trade and Consumer Protection rules.
Because it is not clear from the record exactly what constitutes the
$389 damage figure, this court remands this case to the trial court with
directions to conduct further fact-finding and state with particularity what
items support the $389, or to modify the damage award based on the findings
previously made by the trial court.
Further, because the trial court's findings are not clearly erroneous
regarding the alleged landlord violations, and because those findings support
the trial court's conclusion that the landlord did not violate any
administrative rules, this court affirms that portion of the judgment.
I. BACKGROUND
Wolfe signed a one-year
lease with the Salochs in September 1993.
Wolfe agreed to pay $289 per month for a bedroom with the use of a
bathroom and kitchen. In entering into
the lease, Wolfe paid a security deposit in the amount of $289 and an
additional $289 for the last month's rent.
Wolfe's bedroom was located in the upper unit of a home near the
University of Milwaukee campus. There
were two other tenants in the upper unit, each having his own bedroom, but sharing
the common bath and kitchen.
On January 2, 1994,
Wolfe received a five-day notice to vacate or pay the January rent. On January 4, 1994, Wolfe gave written
notice that he was vacating the premises because he felt the Salochs had
breached the lease by allowing their son, Peter Saloch, to enter the upper unit
unannounced and use the bathroom. Wolfe
vacated the premises on January 8th or 9th.
In a letter dated January 27, 1994, the Salochs advised Wolfe that they
would not refund his security deposit.
The letter provided in pertinent part:
According to our records and after
inspection of the above premises, the following is an itemized list of security
deposit deductions:
(1) Late January rent $ 45.00
(2) Cleaning fees as per contract/
addendum
(see attached list) 110.00
(3) Bad painting on partial wall (entire
room
will need repainting) 75.00
(4) Costs to mitigate damages (re-rent)
to date 134.16
(5) November, 1993, rent (partial)
unpaid 10.00
(6) Accustat cover, pin, time and
labor 34.77
(7) Electricity share above $40.00 7.90
(8) Malicious damage to door
(intentional) 75.00
(9) Holes in wall 25.00
(10) Clogging of sink (intentional) 150.00
$666.83.
The
letter advised that because this total exceeded the $289 security deposit, the
deposit would not be returned and Wolfe should submit $377.83 to cover the
additional expenses.
Wolfe disputed these
charges and filed suit against the Salochs for violating Wisconsin Department
of Agriculture, Trade and Consumer Protection Rules 134.06(3)
& (4), which prohibit withholding security deposits for items for which a
tenant is not responsible, and for failing to provide a tenant with an accurate
itemized list of damages and portions of the security deposit. Wolfe sought double the amount of the
security deposit, plus costs and attorney's fees pursuant to § 100.20(5), Stats.
The Salochs filed a counterclaim.
After a trial to the
court, it disallowed the Salochs's claim for the late January rent; stated
there was not enough evidence to support the claim for the accustat cover
($34.77); found that Wolfe was responsible for the door damage in the amount of
$75; and allowed the clogged sink charge, but reduced the $150 amount to
$60. The trial court did not address
any of the remaining items listed in the January 27 letter.
The trial court also
determined that the January 27 letter was in compliance with the
aforementioned rules and, accordingly, did not award Wolfe any double damages,
costs, or attorney's fees.
Based on the foregoing,
the trial court found that the Salochs were entitled to the sum of $389 for
damages, but that they had already received $289 in the retained security
deposit. Therefore, the trial court
entered judgment against Wolfe in the sum of $100. Wolfe now appeals.
II. DISCUSSION
A. The
$389 Damage Award.
As noted above, the
Salochs's itemized damages totalled $666.83.
The trial court only addressed the January rent, the accustat, the damaged
door and the clogged sink. It failed to
address the remaining items in the January 27 letter. Accordingly, the record is unclear as to how
the trial court reached the total damage figure of $389. The only items expressly allowed by the
trial court were the $75 for the damaged door and the $60 for the clogged
sink. The sum of these items is
$135. It is unclear from the record
whether the trial court's $389 figure was simply an erroneous calculation or
whether the trial court found, without stating it on the record, that certain
other items listed in the January 27 letter were recoverable.
Because this court does
not act as a finder of fact, this matter must be remanded to the trial court
for clarification. Upon remand, the
trial court is instructed to make specific findings with respect to what
additional items were awarded in reaching the damage award of $389. If, however, the trial court simply made an
erroneous calculation and found that only the door damage and the clogged sink
costs were recoverable, the damage award should be modified accordingly.[2]
B. Violation
of Rules/Statutes.
Wolfe also claims that
the trial court erred in failing to award double damages, costs, and attorney's
fees for the Salochs's violations of administrative rules. Specifically, Wolfe addresses the Salochs's
charge of $150 for a clogged sink, when the lease specifically limited the
charge for a clogged sink to a maximum of $60.
Wolfe contends that this excessive charge was an attempt by the Salochs
to falsify a claim against his security deposit or hold monies for an
intentionally falsified claim in violation of the Wisconsin Department of
Agriculture, Trade and Consumer Protection Rule
134.06(5).
The trial court
determined that the Salochs did not violate any rules. This court reviews a trial court's findings
of fact under the clearly erroneous standard.
See § 805.17(2), Stats. If this court concludes that the findings of
fact are not clearly erroneous, they will not be overturned. Further, if a trial court's conclusions of
law are supported by the sustained findings of fact, this court will uphold the
trial court's conclusions.
There is evidence in the
record that the overcharge for the clogged sink may have been an attempt to
falsely withhold Wolfe's security deposit.
Specifically, Peter Saloch testified that despite knowing about the $60
limit, he charge $150 because “I was really out of my mind. I was very angry. Distressed, I suppose.”
This testimony may lead to the conclusion that the landlord falsified
the clogged sink charge. However,
Saloch's testimony on this issue is more extensive than the above excerpt. He also testified that he charged more than
$60 because Wolfe clogged more than one sink, the sinks were clogged on more
than one occasion, and he thought that the lease allowed him to charge more
than the $60 limit if multiple cloggings were involved.
When the trial court
acts as the finder of fact, it is the ultimate arbiter of credibility and the
trial court, not an appellate court, is charged with resolving conflicts in the
testimony. Gehr v. City of
Sheboygan, 81 Wis.2d 117, 122, 260 N.W.2d 30, 33 (1977). Further, if more than one reasonable
inference can be drawn from the evidence, this court will defer to the
inference that the fact finder accepted.
Rivera v. Eisenberg, 95 Wis.2d 384, 388, 290 N.W.2d
539, 541 (Ct. App. 1980). In the
instant case, the trial court determined that Saloch's testimony that he
believed the lease allowed him to exceed the $60 charge in multiple clogging
situations was credible. This
determination necessarily rejects Wolfe's contention that the excessive charge
constituted an attempt to falsely withhold his security deposit in violation of
the administrative rules. In reviewing
the record, this court concludes that the findings of the trial court in this
regard were not clearly erroneous and that the trial court's conclusion that
the Salochs did not violate the administrative rules is logically supported by
the trial court's findings.
Accordingly, this court
rejects Wolfe's claim that the trial court erred in denying his claim for
double damages, costs, and attorney's fees based on the landlord's violation of
the administrative rules.[3]
III. CONCLUSION
In sum, this court
affirms that portion of the judgment that denied Wolfe's claim seeking double
damages, costs and attorney's fees; this court reverses the judgment in part
and remands on the issue of the $389 damages found by the trial court,
directing the trial court to conduct further fact-finding to support the $389
award, or to amend the judgment to reduce the award to conform to the findings
originally rendered; this court also instructs the trial court on remand to
determine the amount of costs and attorney's fees that should be awarded to
Wolfe for having to respond to the arguments that the Salochs improperly raised
on appeal.
By the Court.—Judgment
affirmed in part, reversed in part and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] The Salochs agree
that the record is unclear as to exactly how the $389 figure was reached. They argue that the trial court intended to
include in its award all the remaining items in the January 27 letter that it
did not specifically disallow. They
argue that on this basis, the damage award should have been $497.06. They request that this matter be remanded for
a damage hearing so that the damage award can be increased.
This court rejects the
Salochs's arguments. The Salochs failed
to file a cross-appeal in this matter and, accordingly, the only valid argument
the Salochs can assert on appeal is a request to affirm the judgment. See 809.10(2)(b), Stats.; Auric v. Continental Cas.
Co., 111 Wis.2d 507, 515, 331 N.W.2d 325, 330 (1983).
In response to the Salochs's attempts to seek a modification of the judgment despite their failure to file a cross-appeal, Wolfe argues that he sustained costs and attorney's fees for having to argue against the Salochs's frivolous argument. This court agrees. It is clear under our laws that a respondent who has not filed a cross-appeal may not seek modification of a judgment. Id. Accordingly, upon remand, this court instructs the trial court to conduct a hearing to determine the appropriate award of costs and attorney's fees that Wolfe incurred in defending against the Salochs's improperly raised argument.