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COURT OF APPEALS DECISION DATED AND RELEASED August 20, 1996 |
NOTICE |
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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. 95-3262
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
WALTER L. MERTEN,
Plaintiff-Respondent,
v.
ROBIN McGRUDER and TED
McGRUDER,
Defendants-Appellants.
APPEAL from a judgment
of the circuit court for Milwaukee County:
FRANK T. CRIVELLO, Judge. Reversed
and cause remanded with directions.
FINE,
J. Ted and Robin McGruder appeal from a judgment awarding
Walter L. Merten damages for the McGruders' alleged breach of an
apartment-rental application. The
McGruders argue that the trial court erred in ruling that Merten was entitled
to damages for lost rent and for his costs in attempting to re-rent the
apartment unit. The McGruders also
argue that the trial court misused its discretion in depriving them of their
right to cross-examination. We
reverse. The McGruders' argument,
asserted during the damages hearing, that they withdrew their offer to rent the
apartment before Merten accepted their application was, in effect, a motion for
reconsideration that should have been addressed by the trial court.[1]
On October 9, 1994, the
McGruders gave Merten a $250 deposit along with their application to lease an
apartment. The application was on a
form given to them by Merten. According
to the record created during the hearing on Merten's motion for summary
judgment, Merten wrote a letter that evening to the McGruders, informing them
that they had been selected as tenants.
This letter also set forth the time and place for the signing of the
lease. Subsequently, Merten was
notified by his bank that payment on the $250 check had been stopped.
The McGruders, appearing
pro se at the summary-judgment motion hearing, did not offer any
evidence as to when they contacted Merten to withdraw their application. The trial court, the Honorable Jacqueline D.
Schellinger presiding, granted Merten summary judgment, awarding Merten the
$250 security deposit together with costs.
The trial court set the case for trial on Merten's claims for lost rent
and related costs.
On August 30, 1995, the
Honorable Frank T. Crivello presided over the bench trial to determine whether
Merten was entitled to recover lost rents for November and December, 1994, and
the related costs of attempting to re-rent the apartment. During this trial, the McGruders repeatedly
attempted to offer testimony that they withdrew their offer to rent before
Merten notified them that they were accepted as tenants. Judge Crivello refused to consider this
testimony, stating: “I cannot revisit
that issue. Judge Schellinger has found
you are in breach of that contract.”
The trial court then entered judgment in favor of Merten ordering the
McGruders to pay Merten for November and December rent and the related costs of
advertising for new tenants.
When trial-court
proceedings in a case are split between two or more judges, the successor judge
has the power to reconsider a ruling made by the predecessor just as he or she
would have the authority to reconsider his or her own rulings. Dietrich v. Elliott, 190
Wis.2d 816, 823 & 823 n.4, 528 N.W.2d 17, 20 & 20 n.4 (Ct. App.
1995). Thus, Judge Crivello had the
authority to revisit Judge Schellinger's earlier grant of summary judgment. His conclusion to the contrary was
wrong. As noted, during the damages
hearing before Judge Crivello, the McGruders repeatedly attempted to prove that
they withdrew timely their offer to rent the apartment. The McGruders are not lawyers, and their
efforts amounted to seeking reconsideration of Judge Schellinger's earlier
ruling granting Merten summary judgment.
Judge Crivello should have considered their evidence and determined
whether, in light of all the circumstances, reconsideration was appropriate.
It appears from the
McGruders' arguments that there is a material issue of fact as to whether the
McGruders withdrew their offer to rent the apartment before Merten accepted
their rental application, and, therefore, summary judgment should not have been
granted. See Zimmerman v.
Thompson, 16 Wis.2d 74, 75-76, 114 N.W.2d 116, 117 (1962) (“[T]he power
of the courts under the summary-judgment statute ... is drastic and should be
exercised only when it is plain there is no substantial issue of fact or of
permissible inference from undisputed facts to be tried.”). Moreover, the rental application has a
liquidated-damages clause: “I enclose
herewith $250.00, which will be forfeited, as provided by law, if you accept
this application, and I do not take the premises.” In the event the fact-finder rules in favor of Merten on the
breach-of-apartment-rental-application issue, his damages are limited to the
$250 liquidated-damages clause provided for by the application. See Trans World Airlines, Inc.
v. Travelers Indemnity Co., 262 F.2d 321, 325 (8th Cir. 1959) (“[W]here
the parties especially provide or stipulate for liquidated damages, such
liquidated damages take the place of any actual damages suffered and that any
recovery for breach is limited to the amount so agreed upon.”).
We reverse the judgment
granting summary judgment to Merten and remand this case to the trial court so
that the trial court can determine whether reconsideration of the grant of
summary judgment is appropriate and, if so, whether the McGruders breached the
rental-application agreement.
By the Court.—Judgment
reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.