COURT OF
APPEALS DECISION DATED AND
RELEASED July
25, 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. 95-3059
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
MARVIN
J. JENSEN,
Plaintiff-Respondent,
v.
HORST
JOSELLIS,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Sauk County: JAMES EVENSON, Judge. Affirmed.
VERGERONT,
J.[1] Horst
Josellis appeals from a judgment in favor of Marvin Jensen in the amount of
$375 plus costs for damage to vegetation on Jensen's property caused by
Josellis's cattle. Josellis contends
that: (1) the trial court
erroneously denied his motion for a more definite statement in Jensen's
complaint; (2) there was insufficient evidence that his cattle were on
Jensen's property on the date the damage occurred; (3) the trial court
erred in not admitting a map showing the property of both parties and the
property lines and fence lines; (4) Jensen is prohibited by statute from
recovering for damage caused by Josellis's cattle because Jensen did not give
Josellis notice of the deficiency in the fence between the two properties; and
(5) the damages were excessive. We
reject each of these contentions and affirm the judgment.
At
the start of the trial on this small claims action, Josellis moved for a more
definite statement, arguing that Jensen's complaint did not provide any details
regarding when and where Josellis's cattle damaged his property. The trial court denied the motion as
untimely. The trial court did not
erroneously exercise its discretion in denying the motion. The complaint was filed on August 11, 1995,
and explained the date of the occurrence, what occurred and the damages
caused. A pretrial was scheduled and
took place on September 8, 1995, and the trial was scheduled for September 19,
1995. Josellis was notified in advance
by mail of the pretrial and by personal service of the trial. The court could reasonably decide that
Josellis should have requested a more definite statement before the date of
trial.
At
trial, Jensen testified that when he woke up at approximately 5:00 a.m. on
the morning of July 25, 1995, there were eight or nine cattle on his lawn and
in the corn field behind his house on his property. Jensen tried to chase them away and got some of them out, but a
bull came around the corner of the house and he had to get out of the way of
the bull. The cattle had come from
Josellis's property and were Josellis's cattle. The cattle eventually went back to Josellis's property. The cattle got on Jensen's property because
there is only a one-wire electric fence on a portion of the property line with
posts from twenty to thirty feet apart, and the wire is drooped between the
posts. Jensen did not call Josellis
because Josellis was standing right there on his lawn that morning. Jensen testified that three trees were
damaged, a small lilac bush, some old lilac bushes and other plants, including
iris. He testified that the value of
the three trees was $100 each; the value of the lilac bush was $50; and the
value of the other plants was $50.
Jensen also testified that the cattle caused damage to the lawn and corn
crop, which was not his but belonged to the person who rented land from him.
Deputy
Sheriff Louise Crisman also testified.
She testified that Jensen called the sheriff's office on the morning of
July 25, 1995. She went out to his
property early in the afternoon on that day and took photographs. One of the photographs showed a tree with a
number of branches broken off and cow manure in front of the tree. Another photograph showed lilac bushes with
green branches lying on the ground.
Another showed iris plants with broken leaves on the ground. Crisman testified that three trees were
damaged and that the manure she saw in front of the photographed tree was
fresh. She observed cattle footprints
on the yard.
Josellis
testified. He denied that his cattle
were on Jensen's property on the morning of July 25 and denied that he was on
Jensen's property that morning. He
testified that when he got up that morning, at approximately 5:30 a.m., the
cows were behind the barn and he put them in the barn.
The
trial court found that Josellis's cattle were on Jensen's property on the
morning of July 25. We do not overturn
the trial court's findings of fact unless they are clearly erroneous. Section 805.17(2), Stats.
There is sufficient evidence to support the trial court's finding that
Josellis's cattle were on Jensen's property on the morning of July 25. The conflict in the testimony of Jensen and
Josellis on this point presented an issue of credibility, which was for the
trial court to resolve. See Gehr
v. City of Sheboygan, 81 Wis.2d 117, 122, 260 N.W.2d 30, 33 (1977).
The
trial court also determined that Josellis was liable to Jensen for damage to
Jensen's trees, shrubs and other plants.
Although the court did not make an explicit finding that Josellis's
cattle caused the damage that Jensen complained of, this is implicit in the
trial court's finding of liability. See
Schneller v. St. Mary's Hosp. Medical Ctr., 162 Wis.2d 296,
311-12, 470 N.W.2d 873, 879 (1991) (trial court's finding of fact may be
implicit from its ruling). The
testimony of Jensen, the deputy sheriff, and the photographs support a finding
that the cattle on Jensen's property on the morning of July 25 caused damage to
trees, shrubs and plants.
Josellis
contends on appeal that he wanted to introduce a map showing the fence between
the properties and to testify concerning the deficiency in the portion of the
fence that he claims is Jensen's responsibility. However, the court limited Josellis's testimony on the condition
of the fence, whose responsibility it was to maintain certain portions of the
fence and whether the fencing complied with the statutory requirements.[2] The court stated that a map of the fence,
which Josellis mentioned in his testimony, was not relevant. The court explained that since Josellis had
denied that his cattle were on Jensen's property on the morning of July 25,
these issues concerning the fence were not relevant.
A
court conducting a small claims trial shall, with certain exceptions not
applicable here, admit all evidence "having reasonable probative value,
but may exclude irrelevant ... evidence." Section 799.209(2), Stats. We will not reverse the trial court's
refusal to admit evidence on the ground of irrelevancy unless the court has
erroneously exercised its discretion. See
Chart v. General Motors Corp., 80 Wis.2d 91, 102, 258 N.W.2d 680,
684 (1977).
We
conclude the trial court properly exercised its discretion in limiting this
testimony based on relevancy. The court
could reasonably conclude that evidence concerning the legality of,
responsibility for and condition of the fence at various portions along the
property line did not have reasonable probative value. Josellis's defense was not based on an
assertion that the cattle could not have gotten through the fence at the
location at which Jensen testified they came through. His defense was that his cattle were not on Jensen's property on
that morning. The evidence he wished to
introduce concerning the fence did not have a tendency to make it more or less
probable that his cattle were or were not on Jensen's property on that
morning. See § 904.01, Stats. ("`Relevant evidence' means
evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence").
Josellis
contends that Jensen could not recover because he did not notify Josellis of
any deficiency in Josellis's fence.
Josellis does not provide a statutory or case cite for this
proposition. It does not appear that
Josellis raised this argument before the trial court. We also note that this contention is inconsistent both with
Josellis's defense before the trial court--that his cattle were not on Jensen's
property--and with other contentions in his appellate brief--that if his cattle
did get through the fence, it was the portion of the fence Jensen was
responsible for maintaining. For these
reasons, we decline to consider this issue on appeal. See Wengerd v. Rinehart, 114 Wis.2d 575,
580, 338 N.W.2d 861, 865 (Ct. App. 1983) (appellate courts generally do not
consider issues raised for the first time on appeal).
Josellis
claims the damages are excessive. He
relies on § 799.209(2), Stats.,
which provides that "an essential finding of fact may not be based solely
on a declarant's oral hearsay statement unless it would be admissible under the
rules of evidence." Josellis
argues that the testimony on damages was based solely on Jensen's oral hearsay
statement.
The
trial court asked Jensen how he arrived at the figure of $100 for each of the
three trees. Jensen answered, "I
just--we talked to the--at Reedsburg, they have a florist place where they sell
plants and like that, and that's where I got that from." On cross-examination, Josellis asked Jensen
whether he had any receipts. Jensen
stated he had them at home but did not know where. However, Jensen also stated that his figures were based on those
receipts and that the value was probably more than the receipts showed. "A tree of that size, if you [were] to
price a tree of the size of that one there that was damaged ... it would be up
around Four Hundred Dollars, or better."
Josellis asked Jensen whether he had hired a professional to give a
damage estimate and Jensen stated no.
Josellis did not submit any evidence on the amount of damages except his
testimony that, based on his prior experience, the amounts Jensen testified to
were too high. Josellis did not testify
regarding what he thought was a reasonable value. In addition to Jensen's testimony, the court had before it the
photographs taken by the deputy sheriff.
The
trial court awarded no damages concerning the lawn and the corn because there
was no evidence provided as to the amount of those damages. It found the damage to the three trees to be
in the amount of $100 each, and to one lilac, $50. It found that $50 for damage to other plants, including some
iris, was excessive and found that $25 was a reasonable value.
Josellis
did not object to any of Jensen's testimony as hearsay. But that is not necessary in a small claims
proceeding because § 799.209(2), Stats.,
waives the rules of evidence in small claims proceedings and renders hearsay
admissible if relevant. Scholten
Pattern Works, Inc. v. Roadway Express, Inc., 152 Wis.2d 253, 259, 448
N.W.2d 670, 672 (Ct. App. 1989). The
issue is whether the evidence is sufficient to sustain the trial court's
determination on damages, given the fact that § 799.209(2) requires more
than "oral hearsay" as a basis for an essential finding. See id. at 258, 448
N.W.2d at 672.
The
basis for Jensen's testimony on damages is not clear. A portion of his testimony could be interpreted as stating that
the $100 figure was based on what a florist told him--clearly "oral
hearsay." But that same testimony
could also be interpreted as stating that he bought the trees at the florist
and the actual purchase price was the basis for his testimony, particularly in
view of his later testimony that the figures were based on the receipts. If the receipts had refreshed his
recollection about what he paid, his testimony of what he paid is not
hearsay. See State v. Wind,
60 Wis.2d 267, 274, 208 N.W.2d 357, 362 (1973) (if witness can look at writing
which refreshes his memory as to the facts and he can then testify from his
independent recollection, his testimony, and not the writing, is admitted in
evidence; there is no hearsay problem in admitting witness's testimony). The photographs showing the damaged tree,
bush and plants were not hearsay because of the foundation laid by the deputy
sheriff who took the photographs. Given
the trial court's better position from which to interpret the oral testimony,
and the fact that it also had the photographs, we are not persuaded that the
determination of the amount of damages was based solely on oral hearsay.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.