CA Blank Order

Hon. Patrick J. Madden

Circuit Court Judge

Iron County Courthouse

300 Taconite Street

Hurley, WI 54534

Diane L. Sennholz

Clerk of Circuit Court

Marathon County Courthouse

500 Forest St.

Wausau, WI 54403

John A. Cravens

Mallery & Zimmerman, S.C.

P.O. Box 479

Wausau, WI 54402-0479

Timothy L. Kostka

Kostka & Associates

P.O. Box 1291

Wausau, WI 54402-1291

Ryan D. Lister

Attorney Ryan D. Lister

415 Division Street, Suite A

Wausau, WI 54403

Diane L. Meulemans

Marathon County Corporation Counsel

500 Forest Street

Wausau, WI 54403

Mary M. Foss

c/o Metro Ride

420 Plumer Street

Wausau, WI 54403

United States of America

Department of Justice

660 W. Washington Ave., Ste. 200

Madison, WI 53701-1585

You are hereby notified that the Court has entered the following opinion and order:



	2012AP2360	Associated Bank v. Darryn W. West (L. C. No. 2006CV478)

Before Hoover, P.J., Mangerson and Stark, JJ.

Darryn West appeals an order dismissing his cross-claim against Mary Foss arising out of a foreclosure action. Based upon our review of the briefs and record,[1] we conclude at conference that this case is appropriate for summary disposition. We summarily reverse and remand for further proceedings. See Wis. Stat. Rule 809.21 (2011-12).

In 2006, Associated Bank commenced foreclosure proceedings against West and Foss. West cross-claimed against Foss, claiming conversion, theft and intentional misrepresentation. West essentially alleged Foss absconded with proceeds received from the promissory note.[2]

Associated Bank moved for summary judgment of foreclosure, which the circuit court granted on October 23, 2006. On May 28, 2008, the circuit court held an “ancillary hearing in which Mr. West is alleging that Ms. Foss is obliged to him for some money.” The court stated it “has reviewed documents and heard statements by Mr. West.” The court also indicated it had received a document from the district attorney’s office indicating there was “a lack of any evidence to issue any criminal charges, which answers any questions about any wrongdoing.” The court stated Foss’s “credibility is not questioned by the Court,” based on “a document by Ms. Foss indicating her indebtedness ….” The court further found “Mr. West’s credibility is doubtful.” The court concluded, “[I]t’s Mr. West’s obligation and not Ms. Foss,” and dismissed the cross-claim with prejudice. A written order was filed on October 30, 2012. A subsequent motion by West was denied after a hearing on July 30, 2013.[3] West now appeals.

This appeal presents itself in an unusual posture. The transcript of the May 28, 2008 hearing indicates the circuit court “reviewed documents and heard statements,” and it determined credibility on that basis. However, the court apparently neither heard sworn testimony nor received any exhibits into evidence. Moreover, the circuit court never addressed the elements relating to the conversion and intentional misrepresentation claims, or determined how the facts supported or failed to support those claims. Although the court mentioned the district attorney declined to pursue criminal proceedings arising from this matter, there was also no attempt to address whether the failure to prosecute criminally would be dispositive of a civil burden of proof for theft.

Here, the lack of an opportunity for the parties to testify under oath and introduce exhibits or other evidence into the record indicates the real controversy has not been fully tried nor justice done. Accordingly, we choose to invoke our statutory discretionary reversal power under Wis. Stat. § 752.35 (2011-12), and remand the matter to the circuit court for further proceedings in accordance with this decision.

Therefore,

IT IS ORDERED that the order is reversed and cause remanded for further proceedings.

[1] We note Foss did not file a response brief to this court.

[2] Foss filed a cross-claim against West for breach of implied contract. Foss alleged she agreed to borrow money from Associated Bank to consolidate West’s debts on the proviso that West would make all mortgage payments, the parties would live together and share expenses. Foss also alleges that after their break-up, she offered to return the funds if West agreed to arrange for her to be released from liability to Associated Bank, but West failed to make such arrangements. Foss’s cross-claim is not the subject of this appeal.

[3] The basis of this motion is unclear from the record. It appears the hearing involved West’s attempt to create a supplemental or “reconstructed” record for appeal.