Lacosse v. Wergin, 92-1475
| Decision Date | 31 March 1993 |
| Docket Number | No. 92-1475,92-1475 |
| Citation | 1993 WL 91578,175 Wis.2d 624,502 N.W.2d 283 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Patrick A. LaCOSSE and Patricia LaCosse, Plaintiffs-Respondents, v. Daniel P. WERGIN, Jr., Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before NETTESHEIM, P.J., and ANDERSON and SNYDER, JJ.
NETTESHEIM.
Daniel P. Wergin, Jr. appeals from a default judgment awarding damages to Patrick A. and Patricia LaCosse for breach of the covenant against encumbrances contained in Wergin's warranty deed to a previous owner. The LaCosses' claim of breach is based on their discovery that a neighbor, Henry F. Ospedale, held a lease interest in a fifteen-foot strip of their property pursuant to an unrecorded lease executed in 1973 by the then owner of the property, Marvin P. Meyer. Although Wergin raises a variety of appellate issues, he essentially contends that his warranty deed conveyance to a previous owner did not breach the covenant against encumbrances and, even if it did, such was not enforceable by the LaCosses, who are remote grantees as to Wergin.
We begin our discussion with two important observations: (1) this case comes to us via a default judgment, and (2) Wergin does not challenge the trial court's use of default judgment to resolve this case. This, we conclude, bears upon the scope of our appellate review and controls most of the appellate issues. We first discuss this aspect of the case.
A default judgment may be rendered if no answer has been served by the defendant within twenty days after service of the complaint. Sections 802.06(1) and 806.02(1), Stats.; Martin v. Griffin, 117 Wis.2d 438, 441, 344 N.W.2d 206, 208-09 (Ct.App.1984). Section 806.02(1) confers wide discretion upon trial courts. Riggs Marine Serv. v. McCann, 160 Wis.2d 846, 850, 467 N.W.2d 155, 157 (Ct.App.1991).
Section 806.02(1), Stats., provides that the trial court may--not shall--render judgment in such a default situation. Failure to interpose a responsive pleading does not automatically entitle the claimant to judgment. See Davis v. City of Elkhorn, 132 Wis.2d 394, 400, 393 N.W.2d 95, 98 (Ct.App.1986); Sibley v. Weinberg, 116 Wis. 1, 6-7, 92 N.W. 427, 429 (1902). We have stated that it is "proper and commendable for a court to require proof on the merits in a default situation if it doubts the justice of the case after reading the complaint." Davis, 132 Wis.2d at 400, 393 N.W.2d at 98. This principle is recognized in sec. 806.02(3)(a) which provides that where a personal claim is made against the defendant, "[t]he court may require such additional proof as the interests of justice require."
Here, despite his default status, Wergin contended on both legal and factual grounds that the LaCosses were not entitled to judgment. Therefore, pursuant to both the case law and the statute, the trial court properly and commendably conducted a hearing on these claims.
However, our scope of appellate review in such a situation is decidedly limited. We will affirm unless it was impossible for the trial court to grant the default judgment in the exercise of its discretion; and, to the extent that the sufficiency of the evidence is challenged, we will affirm even where the evidence supporting the default judgment is slight. Martin, 117 Wis.2d at 442, 344 N.W.2d at 209.
On appeal, Wergin raises a variety of issues, 1 and he argues these as if they had been fully litigated in a contested trial setting in the trial court. This, of course, is not so. Given our limited scope of appellate review, we do not see ourselves as obligated to address Wergin's appellate issues as he has constructed them. Instead, we will address Wergin's issues on appeal only insofar as they bear on two questions: (1) whether the LaCosses' complaint stated a theory of recovery recognized in law; and (2) whether the facts adduced at the default judgment hearing minimally supported that claim and the damages. 2
Having put this case in its proper appellate perspective, we now turn to the facts and our analysis of the issues.
The controlling facts are not disputed. In 1973, Meyer executed an instrument entitled "Lease" by which Meyer leased fifteen feet of his property to Ospedale, an adjoining landowner. The agreement also gave Ospedale the right "to construct any improvements" on the fifteen-foot strip of land. The lease recited that the term was for ninety-nine years and that it was binding on "heirs, successors, assigns and personal representatives of both the lessor and lessee and can be broken only by mutual agreement." As consideration, Ospedale agreed to pay Meyer $300 as well as the property taxes on the leased portion of the property and any improvements thereto. Neither Meyer nor Ospedale ever recorded the lease.
Ospedale used the property leased from Meyer to widen his driveway, and he poured a concrete strip over the fifteen-foot area for that purpose.
During the next ten years, Meyer's property was the subject of six conveyances by warranty deed: (1) Robert H. Horner acquired the property from Meyer's estate; 3 (2) during February 1975, Horner conveyed the property to Edgar Mundt and Wergin; (3) on July 14, 1975, Mundt and Wergin conveyed the property to Gary and Betty Stahl; (4) on July 15, 1976, the Stahls conveyed the property to Norman and Eleanor Krause; (5) on August 22, 1977, the Krauses conveyed the property to Richard D. and Vickie L. Smith; and (6) on December 15, 1983, the Smiths conveyed the property to the LaCosses. As this chronology indicates, the LaCosses were not in privity with Wergin.
None of the warranty deeds given by these successive grantors excepted the unrecorded lease from the covenant against encumbrances. With the possible exception of Horner, apparently all of the owners in this chain of title never realized that the legal description in their respective warranty deeds included the fifteen-foot strip covered by Meyer's lease to Ospedale.
Six years after the LaCosses became the owners, a city sidewalk inspection generated a question as to ownership of the strip. As a result, the LaCosses learned of Ospedale's unrecorded lease interest and that the calls of their warranty deed included the area covered by the lease. Ospedale recorded the lease on June 19, 1989.
The LaCosses brought an action to quiet title against Ospedale, seeking to extinguish Ospedale's right to use the disputed area under his unrecorded lease. The LaCosses and Ospedale settled that lawsuit. 4
On March 13, 1991, the LaCosses commenced this action. With the exception of Mundt, they named as defendants each of the prior owners since Meyer. The complaint alleged breaches of the various covenants in the warranty deeds given by these successive grantors. Specifically, the LaCosses contended that the existence of Ospedale's unrecorded lease from Meyer constituted a breach of the covenant that the property was free from encumbrances. The LaCosses failed to obtain service on the two immediately preceding owners, the Smiths and the Krauses. Horner, the Stahls and Wergin brought a motion to dismiss contending that the complaint did not state a claim for relief. The trial court denied this motion. Thereafter, the LaCosses dismissed their action against Horner and the Stahls. 5 This left Wergin as the only remaining defendant.
On January 16, 1992--ten months after the LaCosses' action was commenced--Wergin filed his answer. The LaCosses moved to strike the answer as untimely and for default judgment. See Martin, 117 Wis.2d at 441, 344 N.W.2d at 209. The trial court granted the motion and this ruling is not challenged by Wergin on appeal. However, the court also conducted a limited hearing to assure that the LaCosses had a lawful claim upon which a judgment could be granted and to assure that the facts alleged supported the claim.
At this hearing, Patrick LaCosse testified that until he discovered the true calls of his deed in 1989, he believed that the fifteen-foot parcel upon which the concrete driveway had been constructed was owned by Ospedale. Like Wergin and the other previous owners, the LaCosses apparently purchased the property not knowing that it was subject to the unrecorded lease agreement between Ospedale and Meyer. LaCosse further testified that Ospedale enlarged his concrete driveway by extending it onto the leased fifteen-foot parcel in "[a]pproximately" 1973. 6 Robert Horner, who acquired the land from Meyer, testified that he conveyed the land by warranty deed to Wergin and Mundt in 1975, but never met either Wergin or Mundt because his attorney handled the matter. Horner testified that he was aware of Meyer's lease to Ospedale at the time of his conveyance to Wergin and Mundt but that he "really never paid no [sic] attention to it."
At this hearing, Wergin argued that the LaCosses' failure to notify him of their quiet title action against Ospedale deprived him of the opportunity to defend the title against Ospedale's claim. The trial court rejected this argument, finding that Wergin had constructive notice of Ospedale's interest based on Ospedale's use of the land for a concrete driveway during Wergin's period of ownership. 7 The court also concluded that the covenant against encumbrances is a warranty that runs with the land. Therefore, the court held that Wergin breached this covenant by warranting to his successors in title that the land was free of encumbrances.
Wergin also argued that Meyer's original grant to Ospedale was an easement, not a lease. Thus, Wergin argued that he did not breach any covenant because sec. 706.10(5), Stats., which recites the covenants which are presumptively included in a conveyance of land, excepts claims that "arise out of open and notorious rights of easement." 8 The trial court rejected this argument, concluding that Meyer's...
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