COURT OF APPEALS DECISION DATED AND FILED March 4, 2009 David
R. Schanker 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. |
2008AP1538-FT |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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Cartlein Investments, LLC c/o B.G. Lein Management Corp.,
Plaintiff-Respondent, v. Brandon Boyd and Jennifer Mosby,
Defendants-Appellants. |
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APPEAL
from a judgment of the circuit court for
¶1 SNYDER, J.[1]
Jennifer Mosby and Brandon Boyd (tenants)
appeal from a judgment of eviction and writ of restitution (judgment) entered
in favor of Cartlein Investments, LLC (landlord). The judgment was entered on May 19, 2008, after
trial to the court in a proceeding governed by Wis. Stat.
§ 799.01(1)(a) and Wis. Stat. ch.
799.[2] The tenants contend that the landlord failed
to comply “with the requirements of Wis.
Stat. § 704.17(2)(b) or with the specificity requirements of the [tenant’s]
subsidized housing lease,” and that the trial court wrongly vacated a Wis. Stat. § 799.45 undertaking
that the court had previously approved.
Because the tenants failed to timely appeal, we dismiss.
¶2 The procedural chronology is extensive but undisputed:
May 19, 2008: Eviction Judgment and Writ of Restitution entered. Writ is to issue May 26, 2008, if tenants have not vacated landlord premises.
May 29, 2008: Restitution writ extension hearing held at request of tenants. Writ of Restitution extended to June 7, 2008, because of minor children attending local schools.
June 5, 2008: Tenants file motion for reconsideration of eviction judgment and a stay of proceedings pending a hearing.
June 17, 2008: Tenants file notice of appeal and undertaking.
June 18, 2008: Tenants file motion for relief pending appeal.
June 19, 2008: Motion for relief pending appeal denied, but circuit court signs the undertaking and stays the eviction until June 23.
June 26, 2008: Small claims court vacates undertaking order.
June 27, 2008: Tenants file emergency motion for relief pending appeal in court of appeals; court of appeals stays eviction order and restitution writ temporarily and orders landlord to respond.
July 3, 2008: Court of appeals stays order vacating undertaking, parties ordered to address the validity of the June 26, 2008 order vacating the undertaking.
¶3 In spite of the extensive and convoluted chronology presented
above, this is a small claims action for eviction; therefore, the relevant
facts in this case are the date of entry of the judgment of eviction and the
date on which the notice of appeal was filed.
See Highland Manor Assocs. v. Bast, 2003 WI 152, ¶4, 268
¶4 An appeal from a judgment of eviction must be filed within a fifteen-day time period. Wis. Stat. § 799.445. The judgment of eviction was entered on May 19, 2008. Tenants, therefore, had until June 3, 2008, to file an appeal. Tenants filed their notice of appeal on June 17, 2008, twenty-nine days after entry of the judgment.
¶5 Prior to June 3, 2008, tenants filed a motion to stay the
writ of restitution to allow their children to finish school. Wisconsin
Stat. § 799.44(3) provides for such a stay of execution triggered “[a]t
the time of ordering judgment” and that the trial court “may, in cases where it
determines hardship to exist, stay the issuance of the writ by a period not to
exceed 30 days from the date of the order for judgment.” The trial court granted tenants a stay of the
writ until June 7, 2008, within the thirty days allowed. While a hardship stay under
§ 799.44(3) is triggered by the entry of the judgment and contains a time limit
related to the judgment, it does not stay the judgment.
¶6 The tenants filed a motion for reconsideration of the
judgment on June 5, 2008, more than fifteen days after the judgment date. While Wis.
Stat. § 805.17(3) reconsideration motions are authorized in
eviction matters, “[u]nder Wis. Stat. § 799.445,
a tenant must appeal from a judgment of eviction within 15 days of judgment,
and Wis. Stat. § 805.17(3)
does not extend the time for initiating an appeal from an eviction
judgment.” Highland Manor, 268
¶7 Our supreme court has acknowledged that “the legislature
intended eviction proceedings to be as summary as possible because there is
seldom an issue for trial.”
By the Court.—Appeal dismissed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This is a one-judge case pursuant to Wis. Stat. § 752.31(2)(a) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise stated.
[2] The landlord points to a record dispute as to whether the judgment and writ were entered on May 16, 2008, as referenced by the transcript or on May 19, 2008, the date in the circuit court docket. Tenants concede the date of the judgment was May 19, 2008. We will use May 19, 2008, as the date of the judgment of eviction and writ of restitution.