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COURT OF APPEALS DECISION DATED AND RELEASED June
21, 1995 |
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(1), Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-1232
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
M
& I FIRST NATIONAL BANK,
WEST
BEND, WISCONSIN, as TRUSTEE,
Plaintiff-Respondent,
v.
EPISCOPAL
HOMES MANAGEMENT, INC.,
Defendant-Respondent,
RICHARD
V. WILKINSON and
NANCY
V. WILKINSON,
Defendants-Appellants,
ELDERLY
HOUSING AUTHORITY,
MARY
D. PALMER, ROBERT T. ALLEN,
EARL
M. BOULTON, CHARLOTTE S. BOULTON,
ELIZABETH
A. BROWN, HOWARD G. BROWN,
JOSEPHINE
DIETRICH, FLORENCE DIETRICH,
MARY
ALICE HAMMOND, WILLIS R. HAMMOND,
GORDON
B. HOFFMAN, JESSIE HOFFMAN,
ELEANOR
G. JORGENSON, ESTHER M. KLEMP,
ERNEST
LIPMAN, SAMUEL LOOMIS,
MILDRED
G. MACEK, BARBARA F. MUCKLER,
DOROTHY
W. OSBORNE, IRVING W. ROANE,
ETHEL
V. ROANE, ROBERT ROSENWALD,
LAURA
ROSENWALD, MARION G. SANFORD,
RICHARD
C. THOMPSON, JUNE H. THOMPSON,
MARION
THORNBERY, ELIZABETH WALKER,
HELEN
M. WILSON, JAMES E. GRIFFISS
and
ELIZABETH H. MILLER,
Defendants.
APPEAL
from a judgment of the circuit court for Racine County: DENNIS J. BARRY, Judge. Reversed and cause remanded with
directions.
Before
Brown, Nettesheim and Snyder, JJ.
NETTESHEIM,
J. Richard V. and Nancy V. Wilkinson appeal from
a summary judgment dismissing their cross-claim against Episcopal Homes
Management, Inc. (EHM) and their counterclaim against M&I First National
Bank, West Bend, Wisconsin, in its capacity as a bond trustee. The Wilkinsons sought the damages contemplated
by § 100.20(5), Stats., based
upon their claim that EHM, as a landlord, failed to return their security
deposit or otherwise provide them with a written statement accounting for the
amount withheld pursuant to Wis. Adm.
Code § ATCP 134.06. The
Wilkinsons named M&I as a defendant because it held the security deposit
pursuant to certain financing agreements with EHM's predecessor, the Episcopal
Diocese of Milwaukee, Inc.
By
a separate decision issued this same day in a related appeal, M&I
First Nat'l Bank v. Episcopal Homes Management, Inc., No. 94-1294,[1]
we have held that: (1) the residency
agreements entered into between EHM and the residents, including the
Wilkinsons, of a housing facility for the elderly known as Lake Oaks at DeKoven
constituted rental agreements pursuant to Wis.
Adm. Code § ATCP 134.02(10); (2) the entrance fees paid by the residents
pursuant to the residency agreements were security deposits within the meaning
of § ATCP 134.02(11); and (3) the subordination provisions of the residency
agreements did not defeat the residents' right to a refund of their entrance
fees, less certain allowable deductions, upon termination of the agreement.
The
Wilkinsons are the only residents participating in this appeal who have vacated
the premises and terminated their residency agreement with EHM. Upon doing so, they requested EHM to refund
their entrance fee. EHM failed to
either refund the fee pursuant to Wis.
Adm. Code § ATCP 134.06(2) or to provide the written accounting required
by § ATCP 134.06(4) within the
requisite twenty-one days.
Based
upon our decision in the related appeal, we conclude that the Wilkinsons are
entitled to the damages contemplated by § 100.20(5), Stats. See also
Shands v. Castrovinci, 115 Wis.2d 352, 340 N.W.2d 506
(1983). We therefore reverse the trial
court's denial of the Wilkinsons' motion for summary judgment against EHM and
M&I. We remand with directions to
enter judgment for the Wilkinsons. The
court is authorized to conduct a hearing on this question if necessary.
By
the Court.—Judgment reversed
and cause remanded with directions.
Not
recommended for publication in the official reports.