District III
January 13, 2015
To:
Hon. Dee R. Dyer
Circuit Court Judge
Outagamie County Courthouse
320 S. Walnut Street
Appleton, WI 54911
Lonnie Wolf
Clerk of Circuit Court
Outagamie County Courthouse
320 S. Walnut Street
Appleton, WI 54911
Michael C. Menghini
Herrling Clark Law Firm, Ltd.
800 N. Lynndale Dr.
Appleton, WI 54914
Daniel Wesley Zeratsky
207 Emily Way
Hortonville, WI 54944
Deborah Lynn Zeratsky
207 Emily Way
Hortonville, WI 54944
You are hereby notified that the Court has entered the following opinion and order:
|
|
|
|
|
|
|
|
|
|
Daniel Wesley Zeratsky v. Home Options Ltd. Partnership (L. C. #2014SC708) |
|
|
|
|
|
Before Hoover, P.J.[1]
Home Options Ltd. Partnership (Home Options) appeals a circuit court judgment awarding $7,450.00, plus court costs, to Daniel and Deborah Zeratsky (the Zeratskys). Home Options argues, inter alia, that the circuit court lacked personal jurisdiction over it and, therefore, the judgment must be vacated as void. Based upon our review of the brief and record, we conclude that this case is appropriate for summary disposition and we summarily reverse. See Wis. Stat. Rule 809.21.
The Zeratskys brought a small claims action against Metro Properties Trust[2] seeking the return of their option-to-purchase fee of $7,450.00. The Zeratskys alleged the land they leased with an option to purchase was misrepresented by the owners with respect to the dimensions of the lot. The court commissioner dismissed in favor of Metro Properties Trust, finding no boundary dispute existed. The Zeratskys appealed. The circuit court conducted a de novo trial, during which it granted an amendment denominating Home Options as the proper defendant. The circuit court determined a boundary dispute existed and that Home Options had negligently misrepresented otherwise. The court awarded damages to the Zeratskys. Home Options now appeals.
Home Options set forth a number of arguments on appeal that required a response. For example, Home Options asserted the circuit court lacked personal jurisdiction over it because Home Options was not denominated in the summons or complaint, in violation of Wisconsin’s requirement of strict adherence to the procedural elements of service. See Mech v. Borowski, 116 Wis. 2d 683, 685-86, 342 N.W.2d 759 (Ct. App. 1983). All arguments and allegations went unrefuted by the Zeratskys, who failed to file a response brief.[3] Their failure to respond accordingly relinquished their arguments in favor of Home Options’ arguments. See Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (arguments not refuted are deemed admitted).
THEREFORE, IT IS ORDERED that the judgment is summarily reversed pursuant to Wis. Stat. Rule 809.21.
Diane M. Fremgen
Clerk of Court of Appeals
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2). All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
[2] The initial action was commenced against Metro Properties Trust, an entity that collected the rental payments for the property in question. Home Options is a limited partnership that owned the property.
[3] A December 3, 2014 order notified the Zeratskys that they were delinquent in filing their brief. They were given an additional five days to either file and serve their brief or request an extension. The order warned that the failure to file a brief or request an extension with good cause shown could result in summary reversal under Wis. Stat. Rule 809.83(2). The Zeratskys submitted a letter indicating they would not be filing a brief. If, in fact, they intended the letter to serve as their responsive brief, it is wholly insufficient and does not comply with our appellate rules for briefing. See Wis. Stat. Rule 809.19(3)(a)2.; Wis. Stat. Rule 809.19(1)(e); see also Waushara Cnty. v. Graf, 166 Wis. 2d 442, 452, 480 N.W.2d 16 (1992) (Pro se litigants are “bound by the same rules that apply to attorneys on appeal”).