|
COURT OF APPEALS DECISION DATED AND RELEASED February 6, 1996 |
NOTICE |
|
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. 95-1569
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE FARM MUTUAL AUTO
INSURANCE COMPANY,
Plaintiff-Respondent,
v.
JOHN McCLELLAN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
WILLIS J. ZICK, Reserve Judge. Affirmed.
SULLIVAN,
J. John McClellan appeals pro se from a small claims judgment
awarding State Farm Mutual Automobile Insurance Co. $506.36 in damages and
costs arising from an automobile accident between McClellan and State Farm's
insured, Greg Olson. McClellan raises
the following issues for review: (1) whether the trial court erred when it
denied his request to compel production of documents; (2) whether the trial
court erroneously exercised its discretion “when it refused to order [American
Family] to produce the names of the witness, that [McClellan] might call for
his witnesses;” (3) whether the trial court “failed to consider [American
Family] continually changing his story;” and (4) whether the trial court's
finding that McClellan was negligent is contrary to the evidence. This court rejects all of the defendant's
arguments and affirms.[1]
The following facts were
adduced at trial. Olson testified that
he was pulling into the parking space next to McClellan's car, and that when he
was approximately three-fourths of the way into the space, McClellan backed his
car into Olson's car. McClellan
testified that he was attempting to back out of his parking space when he
stopped to let a vehicle pass. He
testified that while his car was still stopped, Olson's car struck his. He further testified that a van was in the
parking space next to his vehicle. A
State Farm estimator testified that he viewed the damage to Olson's car, and
that he estimated the damage to the left rear quarter panel would cost $463.73
to repair. The trial court found
McClellan ninety percent negligent and Olson ten percent negligent. The trial court then assessed costs and
entered judgment for American Family.
If a discovering party
receives an answer to an interrogatory that it believes is evasive or
incomplete, or fails to receive any answer at all, the discovering party may
move the trial court for an order compelling discovery. See § 804.12(1)(a) & (b), Stats.
Further, the burden is “on the frustrated party to seek a court order
compelling compliance.” 3 Jay E. Grenig & Walter L. Harvey, Civil
Procedure § 412.2 at 580 (2d ed., Wis. Prac. Series) (1994).
A motion for an order
compelling discovery should be filed with the court and served on all the
parties within a reasonable time after the moving party is served with the
allegedly insufficient response to the discovery request or, if no response has
been received, after the deadline for the response. The motion should be made in sufficient time so that it can be
decided and the moving party can obtain the requested material before the trial
and the discovery deadline.
Id. at
581 (footnotes omitted); see Hertlein v. Huchthausen, 133
Wis.2d 67, 71, 393 N.W.2d 299, 300 (Ct. App. 1986) (stating that § 804.12,
Stats., provides various remedies
to which party can avail itself if party is concerned about not receiving
discovery materials). Whether to grant
a motion compelling discovery is a matter within the discretion of the trial
court and we will not reverse the trial court absent an erroneous exercise of
that discretion. Earl v. Gulf
& Western Mfg. Co., 123 Wis.2d 200, 204-05, 366 N.W.2d 160, 163
(Ct. App. 1985).
McClellan argues that
the trial court erroneously exercised its discretion by denying his pro se
motion to compel discovery. The record
belies this argument. The trial court
ordered American Family to give McClellan copies of the insurance policy, a photograph of the damages, and an itemized
estimate of the damages to Olson's car.
The transcript shows that American Family complied with this order. There was no erroneous exercise of
discretion.
McClellan next argues
that the trial court erroneously exercised its discretion by failing to order
American Family “to produce the names of the witness, that [he] might call for
his witnesses.” This argument is
specious. The trial court cannot compel
a plaintiff to the produce the names of witnesses a defendant may call for his
witnesses. The defendant is free to
call any relevant witness he chooses, and only the defendant knows who he or
she intends to call.
McClellan argues that
the trial court erred when it failed to consider what he alleged was American
Family's “continually changing” the story of how the accident occurred. The trial court acted as finder of fact in
this case, and, as such, it is the ultimate arbiter of credibility of
witnesses. Cogswell v. Robertshaw
Controls Co., 87 Wis.2d 243, 250, 274 N.W.2d 647, 650 (1979). McClellan provides this court with no basis
to dispute the trial court's credibility determinations in this case.
Finally, McClellan
argues that the trial court erred when it found him negligent because he
alleges that this finding is contrary to the evidence. We will sustain a verdict “if there is any
credible evidence to support the verdict.”
Fehring v. Republic Ins. Co., 118 Wis.2d 299, 305, 347
N.W.2d 595, 598 (1984). Further, it is
this court's duty to search for credible evidence to sustain the trial court's
verdict. Id.
McClellan bases his
argument on the scientific principles of Newton's first and second laws of
thermodynamics. He argues that these
principles show that if Olson's version of the accident was accurate, “the
force of [McClellan's] vehicle moving rearward striking the lighter rear panel
of [Olson's] vehicle would cause two thing to happen. First the damage would be through the point of impact to the end
of the vehicle and [Olson's] car would be moved by the impact.”
The trial court believed
Olson's version of events, and the evidence presented supported this
version. Thus, this court must sustain
the verdict. Id.
In short, this court
rejects McClellan's arguments and the judgment of the trial court is affirmed.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.