Booker Gutter v. Margaret Gutter

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 27, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP1407 Cir. Ct. No. 2022SC6330

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

BOOKER GUTTER,

PLAINTIFF-RESPONDENT,

V.

MARGARET GUTTER,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee
County: CYNTHIA M. DAVIS, Judge. Affirmed.

¶1 WHITE, C.J.1 Margaret Gutter appeals the judgment of replevin
granted in favor of Booker Gutter for the return of a number of items of personal

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(a) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2023AP1407

property and the dismissal of Margaret’s counterclaim seeking damages related to
the storage of Booker’s property. Margaret argues that the circuit court lacked
subject matter jurisdiction, that she was denied due process, and that the circuit
court’s conclusion is not supported by the facts in the record. For the following
reasons, we affirm the judgment of the circuit court.

BACKGROUND

¶2 On March 9, 2022, Booker commenced this case in the Milwaukee
County Circuit Court small claims division seeking the return of a number of
items of personal property held by his mother, Margaret.2 Booker alleged that he
had been living in a house owned by his parents. In September of 2021, about a
month before his father died from a prolonged illness, Booker alleged that
Margaret, through her counsel, requested that Booker move out by the end of the
month. However, prior to the deadline Margaret moved Booker’s remaining
belongings to a storage unit and changed the locks on the house. Booker
repeatedly requested his property returned, but Margaret refused to do so unless
Booker paid Margaret money owed for rent which Booker denied owing.

¶3 Margaret answered and counterclaimed that Booker had refused to
move his property from the home for months after he was initially asked to vacate
in July 2021, and that Booker owed Margaret a total of $24,150.07 for the cost of

2
Booker alleged that Margret refused to return the remains of his son’s mother,
“medicines, medical supplies, money, [two] snow blowers, [two] refrigerators, [two] dorm
refrigerators, [one] washer, [one] dryer, [one] lawnmower, [one] television, [two] beds, tools,
yard equipment, sports equipment, [one] bike, clothing, toys, electronics, jackets and coats, hats,
shoes, lamps, toiletries and cleaning supplies, [one] kitchen countertop, [one] dishwasher, [one]
safe, and a kitchen garbage disposal.”

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No. 2023AP1407

moving and storing his property, cleaning the home, unpaid utilities, and past
rent.3

¶4 At an August 17, 2022 hearing, the circuit court addressed
Margaret’s counterclaim. Margaret indicated that she wanted to pursue her
counterclaim for a higher amount of monetary relief than can be considered in
small claims, so the circuit court dismissed the counterclaim and instructed
Margaret to pay the required filing fee to reassign the case to large claims. At a
status conference the following week, Margaret indicated that she still wished to
pursue her counterclaim and requested an adjournment to pay the filing fee. The
circuit court granted the adjournment and set a deadline of September 7, 2022, for
Margaret to pay the filing fee. Margaret failed to pay the filing fee by the next
court date on November 8, 2022, so the circuit court stated that Margaret’s
counterclaim would remain dismissed.

¶5 On January 31 2023, Margaret filed her Second Amended
counterclaim renewing her request for the circuit court to award more relief than is
allowed under small claims procedure. At the hearing the next day, the circuit
court addressed the renewed counterclaim. The circuit court told Margaret, “So,
you still have the opportunity. If you want to, again, like we discussed last time.
You can file that [counterclaim] in large claims.” The circuit court also told
Margaret that she could agree to limit her counterclaim to $5,000 if she wanted the
circuit court to address it in small claims. Margaret indicated that she still wanted

3
Margaret filed an amended counterclaim on August 15, 2022, indicating that she also
sought monetary relief related to unpaid utility bills.

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No. 2023AP1407

more relief than is allowed under small claims procedure, so her counterclaim was
dismissed.

¶6 On June 28, 2023, the circuit court held a hearing where the parties
presented their testimony. During the first half of the hearing, Margaret moved
the circuit court to address her counterclaim again. Booker objected on the ground
that the parties had not finished presenting the relevant testimony and the circuit
court sustained the objection.

¶7 On July 12, 2023, Margaret moved for a continuance of the July 13,
2023 hearing arguing that the transcript of the June 28, 2023 hearing was not
available yet and was needed for impeachment purposes. The circuit court denied
the motion. The parties then finished presenting testimony and the circuit court
adjourned the hearing for final arguments and its decision.

¶8 On July 18, 2023, the circuit court granted a judgment of replevin in
favor of Booker for all of the personal property he requested except for the oven,
refrigerator, and washing machine. In coming to its decision the circuit court
determined that: (1) Booker failed to prove that he owned the oven, refrigerator,
and washing machine; (2) Booker was a tenant at will under WIS. STAT.
§ 704.01(5); (3) Booker did not surrender or abandon his property because Booker
did not vacate the house; (4) Margaret was not entitled to hold Booker’s property
because Booker had not been properly evicted at the time Margaret took his
property and placed it into storage due to Margaret failing to notify Booker in the
manner required by WIS. STAT. §§ 704.19(4) and 704.21(1); and (5) Booker owed
no expenses to Margaret since he was never properly evicted.

¶9 Margaret appeals. Additional relevant facts are discussed below.

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No. 2023AP1407

DISCUSSION

¶10 Margaret argues that the circuit court lacked subject matter
jurisdiction over the case because her counterclaim sought damages greater than
the statutorily prescribed $5,000 limit for small claims procedure and that this
issue cannot be waived.4 However, the circuit court had subject matter jurisdiction
regardless of whether the amount in controversy exceeded the statutory limit for
small claims procedure.

¶11 Under Article VII, § 8 of the Wisconsin Constitution, circuit courts
have “original jurisdiction in all matters civil and criminal”; therefore, “a circuit
court is almost never without subject-matter jurisdiction[.]” Walworth County v.
M.R.M., 2023 WI 59, ¶17, 408 Wis. 2d 316, 992 N.W.2d 809. Instead,
“noncompliance with statutory requirements pertaining to the invocation of that
jurisdiction” can result in the loss of the circuit court’s competency to exercise its
subject matter jurisdiction. Village of Trempealeau v. Mikrut, 2004 WI 79, ¶2,
273 Wis. 2d 76, 681 N.W.2d 190. See also Mueller v. Brunn, 105 Wis. 2d 171,
177, 313 N.W.2d 790 (1982) (“[T]here is lack of competency for excess sums
where a court has the power to deal with an action but for no more than a
designated amount”), abrogated on other grounds by Mikrut, 273 Wis. 2d 76, ¶29.

¶12 “The concept of competency has been characterized as a ‘narrower
concept’ involving a ‘lesser power’ than subject matter jurisdiction.” Mikrut, 273
Wis. 2d 76, ¶14. “A judgment rendered under these circumstances may be

4
WISCONSIN STAT. § 799.01 provides that small claims procedure is “the exclusive
procedure to be used” for “[a]ctions for replevin … where the value of the property claimed does
not exceed $10,000,” and “actions based in tort, where the amount claimed is $5,000 or less.”
Sec. 799.01(1)(c), (cr).

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No. 2023AP1407

erroneous or invalid because of the circuit court’s loss of competency but is not
void for lack of subject matter jurisdiction.” Id., ¶2. Unlike subject matter
jurisdiction, “challenges to the circuit court’s competency are waived[5] if not
raised in the circuit court.” Id., ¶30.

¶13 Therefore, it is clear that the circuit court had subject matter
jurisdiction over this case regardless of the amount in controversy.

¶14 Relatedly, Margaret argues that she never waived the issue regarding
the circuit court’s jurisdiction because she told the circuit court she wanted to
pursue her counterclaim in the large claims division and that she paid the filing fee
to do so. As a result, Margaret also maintains that the circuit court’s August 8,
2023 order denying her post-trial motion to transfer to large claims was erroneous
because it relied on a finding that Margaret had failed to timely pay the large
claims filing fee. However, after reviewing the record, we note that the evidence
does not support that Margaret ever paid the filing fee and we, therefore, conclude
that Margaret forfeited her right to transfer the case to large claims.

¶15 Margaret indicated to the circuit court multiple times that she wanted
to pursue a counterclaim greater than the limit for small claims procedure, and in
response the circuit court also informed her multiple times that she either needed
to pay the filing fee to do so or limit the amount of damages she was claiming.
The circuit court set a September 7, 2022 deadline for her to file with large claims
if she wished to pursue a counterclaim outside of small claims.

5
“Although cases sometimes use the words ‘forfeiture’ and ‘waiver’ interchangeably,
the two words embody very different legal concepts. Whereas forfeiture is the failure to make the
timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known
right.” State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612 (citation omitted).

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No. 2023AP1407

¶16 Even after the deadline had past, on February, 1, 2023, Margaret still
maintained that she wanted her counterclaim heard outside of small claims and the
circuit court gave her another opportunity to do so and stated that, “If you want to,
again, like we discussed last time. You can file that [counterclaim] in large
claims.”6 The CCAP7 record is devoid of any entry indicating that she ever paid
the required large claims filing fee.8 There is also no evidence in the record, like a
receipt, that shows that Margaret paid the filing fee as she claims she did.

¶17 On July 18, 2023, the circuit court started its decision by explaining
that the issue before the court was Booker’s replevin claim; however, it would also
address Margaret’s counterclaim because the counterclaim related to damages
from the disposition of Booker’s property which would necessarily be resolved by
deciding the replevin claim. The circuit court ultimately determined that Booker
was a tenant at will, never vacated the property, and had not been properly evicted.
Consequently, Booker could not owe any costs to Margaret related to the
disposition of his property because she was never entitled to hold his property.

6
Subsequently, on June 28, 2023, Margaret moved the circuit court to address her
counterclaim; however, the details of Margaret’s motion and whether she limited her
counterclaim are not part of the record submitted to this court.
7
Wisconsin’s CCAP (Consolidated Court Automation Programs) is a case management
system provided by the Wisconsin Circuit Court Access program, which “provides public access
online to reports of activity in Wisconsin circuit courts.” State v. Bonds, 2006 WI 83, ¶6, 292
Wis. 2d 344, 717 N.W.2d 133. “The online website reflects information entered by court staff.”
Kirk v. Credit Acceptance Corp., 2013 WI App 32, ¶5 n.1, 346 Wis. 2d 635, 829 N.W.2d 522.
We may take judicial notice of CCAP records. See WIS. STAT. § 902.01; Kirk, 346 Wis. 2d 635,
¶5 n.1, 829 N.W.2d 522.
8
Margaret points to the existence of Milwaukee County Circuit Court Case
No. 2022CV5466 to support that she paid the filing fee. The CCAP record indicates that this case
was closed before any claims were litigated. Notably, this record also does not contain an entry
showing that Margaret paid the requisite large claims filing fee.

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No. 2023AP1407

Notably, Margaret did not object to the circuit court’s consideration and dismissal
of her counterclaim during the trial.

¶18 Margaret claims that the circuit court confirmed that the filing fee
was paid at the November, 8, 2022 status conference. However, the CCAP record
for this hearing only shows that the circuit court dismissed Margaret’s
counterclaim, it does not indicate that any filing fee was paid or that the case
would be transferred to large claims. Margaret failed to submit the transcript of
the November 8, 2022 hearing to support her claim. Therefore, in the absence of
evidence showing the contrary, we must assume that the material in the transcript
supports the circuit court’s ruling. See Gaethke v. Pozder, 2017 WI App 38, ¶36,
376 Wis. 2d 448, 899 N.W.2d 381 (“It is the appellant’s responsibility to ensure
completion of the appellate record and when an appellate record is incomplete in
connection with an issue raised by the appellant, we must assume that the missing
material supports the [circuit] court’s ruling.”).

¶19 Ultimately, Margaret’s mere claim that she paid the filing fee is
insufficient proof for this court to find erroneous the circuit court’s August 8, 2023
order finding that she had not paid the fee. We conclude that Margaret forfeited
her opportunity to have the case reassigned to the large claims division by failing
to pay the filing fee.

¶20 Margaret also argues that she was denied due process
because: (1) the court trial took place on five different days over the course of
about five and a half months; and (2) she did not have access to the transcript for
the June 28, 2023 hearing prior to the hearing on July 13, 2023, because the circuit
court denied her motion for a continuance.

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¶21 Margaret cites to no relevant legal authority in support of her
assertion that her right to due process was violated because the replevin hearings
took place on five different days over the course of about five and a half months.
Instead Margaret cites solely to Lipeles v. Flood, 69 Wis. 2d 413, 230 N.W.2d 722
(1975), arguing that her due process rights were denied because this case presents
the opposite situation of the one found in Lipeles. Specifically, Margaret points to
our supreme court’s holding that due process was not denied when the circuit
court scheduled a trial sooner than originally planned for in the pretrial report. See
id. at 418.

¶22 It is unclear how this holding supports her argument and Margaret
does not elaborate. In Lipeles, our supreme court’s holding was based on the fact
that changing the trial date was not a surprise, and was instead done “for the
convenience of the [appellants] … and [that] the record show[ed] that the
[appellants] acquiesced in the completion of the trial on that date.” Therefore, the
Lipeles court concluded that “[a]ny possible objection was specifically waived.”
Id.

¶23 The facts of this case are not truly opposite to those in Lipeles;
rather, as Booker points out, they are strikingly similar in some ways. Margaret
does not dispute that she had notice of each of the five scheduled hearings, nor did
she object when the circuit court initially scheduled them. Furthermore, some of
the delays were to Margaret’s benefit. For example, at the February 1, 2023
hearing the circuit court granted Margaret an adjournment to brief her argument
that Booker abandoned his property, and at the March 24, 2023 hearing the circuit
court gave the parties time to attempt to reach a resolution between themselves.
Ultimately, Margaret’s argument is undeveloped and not supported by relevant
legal authority; therefore, we decline to address it further. See Wisconsin Conf.

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Bd. of Trs. of United Methodist Church, Inc. v. Culver, 2001 WI 55, ¶38, 243
Wis. 2d 394, 627 N.W.2d 469 (explaining that due to the complicated nature of
constitutional claims we do not decide these issues when they are inadequately
briefed).

¶24 Regarding Margaret’s other due process argument, she cites solely to
Petitioner v. Garland, No. 2020AP1695 unpublished slip op. (WI App Jan. 11,
2022), to argue that she had a due process right to the transcript of the June 28,
2023 hearing prior to the next scheduled hearing. Garland is an unpublished per
curium opinion and per curiam opinions “may not be cited in any court of this
state as precedent or authority, except to support a claim of claim preclusion, issue
preclusion, or the law of the case[.]” WIS. STAT. RULES 809.23(3)(a), (b).
Margaret does not cite Garland for one of these permissible reasons. We remind
counsel that we expect compliance with the rules of appellate procedure and
decline to address to Margaret’s argument. See RULE 809.23(3)(b) (“A court need
not distinguish or otherwise discuss an unpublished opinion[.]”); State v. Pettit,
171 Wis. 2d 627, 492 N.W.2d 633 (Ct. App. 1992) (“Arguments unsupported by
references to legal authority will not be considered.”); see also Tamminen v.
Aetna Cas. & Sur. Co., 109 Wis. 2d 536, 563-64, 327 N.W.2d 55 (1982)
(imposing a $50 penalty on the attorneys for citing an unpublished court of
appeals opinion in violation of the rules of appellate procedure).

¶25 Next, Margaret challenges the sufficiency of the evidence supporting
the circuit court’s determination that Booker was a tenant at will under WIS. STAT.
§ 704.01(5), that Booker did not abandon his personal property, and that Margaret
was not owed any damages. Instead, Margaret claims that the evidence only
supports that Booker was a trespasser who surrendered his property and that
Margaret is entitled to the expenses incurred in removing and storing the property.

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¶26 Whether Booker was a tenant at will is a question of law that we
review independently. Sheppard v. Jensen, 2004 WI App 216, ¶22, 277 Wis. 2d
260, 689 N.W.2d 667. A tenant at will is “any tenant holding with the permission
of the tenant’s landlord without a valid lease and under circumstances not
involving periodic payment of rent[.]” WIS. STAT. § 704.01(5).

¶27 We will not disturb the circuit court’s factual findings unless they
are clearly erroneous. WIS. STAT. § 805.17(2). Furthermore, this court does not
review questions regarding the weight of testimony and credibility of witnesses.
Johnson v. Merta, 95 Wis. 2d 141, 151-52, 289 N.W.2d 813 (1980). “These are
matters to be determined by the trier of fact and their determination will not be
disturbed where more than one reasonable inference can be drawn from credible
evidence.” Id. at 151. “We will search the record for evidence to support the
findings that the [circuit] court made, not for findings that the [circuit] court could
have made but did not.” Global Steel Prod. Corp. v. Ecklund, 2002 WI App 91,
¶10, 253 Wis. 2d 588, 644 N.W.2d 269.

¶28 The circuit court explained that, based on the evidence, Booker was
a tenant at will, not a trespasser. The circuit court discussed Booker’s testimony
that his father had given him permission to live in the house, that Booker had keys
to the property, that Booker maintained the property, that Booker’s father would
come by to check on him and the house, and that no action had been taken to
remove Booker until he had been living there for about two years. The circuit
court emphasized that “it’s hard to believe, and entirely incredible, that [Booker]
could live there that long, for two years, if he didn’t at least have the implicit
permission of the landlord.”

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No. 2023AP1407

¶29 The circuit court also discussed the evidence and testimony
presented by Margaret and found that Booker’s testimony was more credible. The
circuit court addressed the unpaid utility bills that Margaret had submitted and
found that they did not refute Booker’s testimony that he only paid the utility bills
for the lower unit because the unpaid utility bills were solely for the upper unit.
The circuit court also discussed how Margaret’s testimony conflicted with facts in
her counterclaim and that those facts supported that there was a landlord-tenant
relationship. Thus, the circuit court determined that Booker was a tenant at will.

¶30 The circuit court then moved on to analyze whether Margaret
properly evicted Booker as a tenant at will. The circuit court explained that
Booker never gave notice that he was terminating his tenancy and that none of the
evidence presented by Margaret regarding possible eviction notices could qualify
as the twenty-eight day written eviction notice required to evict tenants at will
under WIS. STAT. § 704.19. Thus, the circuit court concluded that Booker had not
been properly evicted and consequently did not owe any money to Margaret
related to her storage of Booker’s property because Margaret had never been
entitled to hold it.

¶31 To the extent that Margaret argues that the evidence she presented
was more credible than Booker’s evidence, we defer to the circuit court’s
credibility findings. See Johnson, 95 Wis. 2d at 151-52. Furthermore, our review
of the record shows that the evidence the circuit court relied on is sufficient to
support its determination and that the court’s factual findings are not clearly
erroneous. See Global Steel Prod. Corp., 253 Wis. 2d 588, ¶15.

¶32 Margaret also argues that even if Booker was a tenant at will then
she is still entitled to expenses under WIS. STAT. § 704.05(5)(c). Under

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No. 2023AP1407

§ 704.05(5)(c) the landlord only has the power to dispose of “property left on the
premises by the tenant,” and is entitled to expenses related to the disposition of
that property. See also Sec. 704.05(5)(a)1. As discussed above, the circuit court
found that Booker neither vacated nor was properly evicted from the house;
therefore, Margaret is not entitled to the costs of disposing his property because
Booker never abandoned his property at the house.

¶33 Finally, Margaret challenges the sufficiency of the evidence
supporting the circuit court’s finding that Booker owned the dryer. “[W]hich
party is entitled to possession of the disputed property becomes the ultimate fact
question in a replevin action.” Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 468,
405 N.W.2d 354 (Ct. App. 1987). The plaintiff bears the burden of proving
ownership. First Nat. Bank of Glendale v. Sheriff of Milwaukee Cnty., 34
Wis. 2d 535, 538, 149 N.W.2d 548 (1967). See WIS. STAT. §§ 810.02(1),
810.13(1)(a).

¶34 The circuit court found that Booker proved that he owned the dryer
because he testified that he purchased it and Margaret offered no contradictory
testimony. Margaret maintains that the move-out letter written by Megan Haak,
Booker’s ex-wife who rented the house until October 31, 2018, constitutes
contradictory evidence that the circuit court should have relied on. Haak’s letter
briefly addressed the appliances that she had replaced while she was living there.
Specially, Haak stated that “[a]ll appliances, including a brand-new oven, a
refrigerator, and a new washing machine will remain. All furniture and other
items belonging to your son, Booker, will remain on the premises on as well.”

¶35 The circuit court explained that it “found that the letter really wasn’t
helpful one way or the other…. There’s no indication, of one way or the other

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No. 2023AP1407

really who’s that the replacement items were; who was supposed to own the
replacement items.” It was reasonable for the circuit court to infer that Haak’s
letter failed to indicate who owned the dryer because the phrasing and context of
Haak’s letter does not necessarily mean that Booker did not own the dryer like
Margaret suggests it does. See Global Steel Prod. Corp., 253 Wis. 2d 588, ¶10
(“It is not within our province to reject an inference drawn by a fact finder when
the inference drawn is reasonable.”). Thus, the circuit court’s finding—based on
Booker’s testimony that he owned the dryer because he had bought it—was not
“against the great weight and clear preponderance of the evidence.” See Phelps v.
Physicians Ins. Co. of Wisconsin, 2009 WI 74, ¶39, 319 Wis. 2d 1, 768 N.W.2d
615 (citation omitted).

CONCLUSION

¶36 We conclude that the circuit court had subject matter jurisdiction,
that Margaret was not denied due process, and that the evidence sufficiently
supports the circuit court’s determinations.

By the Court.—Judgment affirmed

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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