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COURT OF APPEALS
DECISION
DATED AND FILED
February 7, 2012
A. John
Voelker
Acting Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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John
C. Weichman,
Jr.,
Plaintiff-Appellant,
v.
Walfrid
A. Friedman,
Nancy Friedman and Friedman
Family Trust,
Defendants-Respondents.
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APPEAL
from a judgment of the circuit court for Milwaukee County: paul r.
van grunsven, Judge. Judgment reversed and cause remanded.
¶1 FINE, J. John C. Weichman appeals the circuit court’s
dismissal of his small-claims action against Walfrid A.
Friedman, Nancy Friedman,
and the Friedman Family Trust. The circuit court held that Weichman’s action
was barred by claim-preclusion. Nothing
in the Record that the parties have caused to be sent to us, however, shows
that the circuit court’s claim-preclusion ruling is either correct or
incorrect. Further, we have no way of
assessing whether any of Weichman’s claims were not sufficiently supported by
the evidence, as the circuit court opined as to one of them an alternate reason
to dismiss. Accordingly, we must reverse
and remand for further proceedings.
I.
¶2 Weichman rented an apartment from the Friedmans. He brought this small-claims action against
them alleging in narrative form various wrongs in connection with his tenancy
and its termination. The Friedmans
counterclaimed for rent Weichman allegedly owed as well as for damages the Friedmans claim Weichman caused. As recited in the Friedmans’
counterclaim, they had sought to evict Weichman in an earlier case, Milwaukee
County 10-SC-022584, and that eviction action was dismissed by the circuit
court on the parties’ stipulation. The Friedmans’ counterclaim alleged that Weichman “breached the
terms of the Stipulation” because he did not vacate the apartment when he was
supposed to under the stipulation. The
circuit court here dismissed this case, ruling:
“All of these claims, all of the claims, every single thing that I have
heard, were claims that accrued and were claims that could and should have been
presented as part of the earlier case, 10-SC-022584.”
¶3 Weichman is pro se. The Friedmans are
represented by a lawyer.
II.
¶4 The main question here is whether claim-preclusion can
prevent a subsequent action asserting claims that perhaps could have been
raised in a counterclaim to an earlier eviction action.
Although the general
formulation of the doctrine of claim preclusion states that the final judgment
is conclusive between the same parties or their privies on “all matters which
... might have been litigated,” it is settled law that we employ a different
analysis when the matter that might have been litigated is a counterclaim.
Wisconsin Public Service Corp. v.
Arby Constr., Inc., 2011 WI App 65, ¶17, 333 Wis. 2d 184, 194, 798
N.W.2d 715, 720 (quoted source omitted).
This is because “counterclaims are generally permissive in Wisconsin and
if we were to apply claim preclusion whenever a defendant in a prior action
chose not to counterclaim, we would be improperly creating a compulsory
counterclaim rule.” Ibid. Wisconsin recognizes, however, “a narrow
exception called the common law compulsory counterclaim rule.” Id., 2011 WI App 65, ¶17 n.5, 333
Wis. 2d at 194 n.5, 798 N.W.2d at 720 n.5.
The circuit court’s conclusion that Weichman should have asserted his
claims in the Friedmans’ eviction action against him
raises issues addressed by Arby Construction.
Further, the supreme court has granted
review of Arby Construction, see
2011 WI 100, 337 Wis. 2d 48, 806 N.W.2d 637, and the supreme court heard oral
argument on January 12, 2012, so the future of the rule that we reference from
the court of appeals’s decision may be affected. Equally important, however, we do not have in
the Record the prior eviction action, so we have no way of knowing, on our de novo review, whether the circuit
court correctly applied the claim-preclusion doctrine, even apart from the compulsory-counterclaim
problem. See id., 2011 WI App 65, ¶13, 333 Wis. 2d at 192, 798 N.W.2d at 719
(Our review of the circuit court’s application of the claim-preclusion doctrine
is de novo.).
¶5 The parties to an appeal are responsible for designating the
Record for the clerk of circuit court. Wis. Stat. Rule 809.15(2) &
(3). Although the appellant has the
initial burden of ensuring that the clerk transmit a proper Record, any other
party to the appeal may seek to have the circuit court “supplement or correct
the record.” Rule 809.15(3). The Friedmans want us to uphold the circuit court’s conclusion
that claim-preclusion barred Weichman’s small-claims action. It was thus their
burden to ensure that the Record included support for that contention, namely,
the prior eviction action (10-SC-022584) on which the circuit court here based
its claim-preclusion ruling. The same
thing is true with the circuit court’s alternative ruling on one of Weichman’s
claims, a moving expense for $930. The
circuit court opined that if it reached the merits, it would not “find that the
plaintiff has met his burden of proof[.]”
Although it is true, as we have noted, that the appellant has the
initial responsibility to ensure that the Record suffices for appellate review,
any other party “who believes that the record, including the transcript of the
reporter’s notes, is defective … may move the court in which the record is
located to supplement … the record.” Rule 809.15(3). Here, the transcript does not include the
evidence presented by the parties.
Further, the circuit court did not explain in that part of its oral
ruling why Weichman’s proffer of a receipt for the $930 was not sufficient
proof of his payment even without the “invoice to accompany” it that the
circuit court ruled was a necessary part of Weichman’s proof.
¶6 Appellate courts are limited to the Record brought to
them. Herro, McAndrews & Porter, S.
C. v. Gerhardt, 62 Wis. 2d 179, 180, 214 N.W.2d 401, 402 (1974), overruled on other grounds by, Standard
Theatres, Inc. v. Department of Transportation, 118 Wis. 2d 730,
746–747, 349 N.W.2d 661, 670 (1984). On this Record, we cannot assess the
circuit court’s use of claim preclusion to dismiss Weichman’s small-claims
action, and we have no way of knowing whether the evidence presented to the
circuit court supports the circuit court’s alternate reason for dismissing one
of Weichman’s claims (the other claims were swept into the circuit court’s
claim-preclusion rationale). Accordingly,
we reverse and remand for further proceedings.
By the Court.—Judgment reversed and cause remanded.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)4.