Logterman v. Dawson

• Decision Date: 07 December 1994
• Docket Number: No. 93-3005,93-3005
• Citation: 526 N.W.2d 768,190 Wis.2d 90
• Parties: Douglas LOGTERMAN and Kristi Logterman, Plaintiffs-Respondents, d v. Mary C. DAWSON, d/b/a Rolling Acres Mobile Home Park, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 768

526 N.W.2d 768

190 Wis.2d 90

Douglas LOGTERMAN and Kristi Logterman, Plaintiffs-Respondents, ^d v. Mary C. DAWSON, d/b/a Rolling Acres Mobile Home Park,

Defendant-Appellant.

No. 93-3005.

Court of Appeals of Wisconsin.

Submitted on Briefs July 27, 1994.

Opinion Released Dec. 7, 1994.

Opinion Filed Dec. 7, 1994.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Richard Scholze of Konicek, Kaiser & Scholze, S.C. of Burlington.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Randall R. Garczynski of Garczynski & Brennan Law Offices, S.C. of Elkhorn.

On behalf of the Wisconsin Manufactured Housing Ass'n, there was a brief by Joshua L. Gimbel and Jonathan H. Margolies of Michael, Best & Friedrich of Milwaukee, amicus curiae.

Before ANDERSON, P.J., and BROWN and SNYDER, JJ.

SNYDER, Judge.

Mary C. Dawson appeals from a judgment for damages related to the termination of Kristi and Douglas Logterman's mobile home tenancy. We hold that the tenancy of a mobile home resident may be terminated under § 710.15(5m), STATS., where state or local authorities require a park owner to either abandon a failing septic system serving the tenant's lot or replace the system, and the park owner elects to abandon the lot. Therefore, we reverse the judgment in favor of the Logtermans.

Dawson is the owner of Rolling Acres Mobile Home Park in Walworth county. The Logtermans owned a mobile home and leased a site in Rolling Acres. Sometime during the fall of 1991, the park began experiencing problems with the septic system servicing various sites, including the Logtermans'. After a September 20, 1991, meeting with officials from the Department of Industry, Labor and Human Relations, Dawson was informed that any failing septic system "must be abandoned or replaced within a reasonable amount of time." DILHR provided Dawson with a list of acceptable replacement options including: (1) connection to the public sewer, (2) temporary modification of the current system, (3) replace all failing systems with one system or (4) use of temporary or permanent holding tanks.

Park management initially addressed the problem by pumping the system servicing the Logtermans' site on a regular basis. In February of 1992, the Logtermans notified park management that they intended to sell their mobile home. Park management did not inform them at that time that there was a problem with the septic system. The Logtermans moved at the end of April 1992 because they had purchased a home in Delavan. Prior to that date the Logtermans never experienced any problems with the septic system, such as sewage backup or problems with their drains.

At some point prior to May 5, 1992, Douglas Logterman accepted a verbal offer to purchase the mobile home from Ron DePriest for $29,500, contingent upon DePriest obtaining financing and upon Rolling Acres' acceptance of DePriest's rental application. DePriest was interested in purchasing the mobile home only if it could be occupied at its present location in Rolling Acres. Subsequently, DePriest stopped his loan application after park management told him that he could purchase the mobile home but would have to relocate it because the park did not believe it could supply adequate septic service to the site in the future.

On several occasions after the September 1991 meeting with DILHR, Assistant Sanitarian Jeffrey Selgren of the Walworth County Department of Planning, Zoning and Sanitation visited Rolling Acres in order to inspect the failing septic systems. "Some time in May" of 1992, Selgren gave Rolling Acres a verbal order to abandon or replace the failing system because "the system was failing to a point where it should not be used any more."

On May 5, 1992, park management informed the Logtermans that it intended to close the site which the Logtermans' mobile home occupied "based on the uncertain condition of the septic system serving that lot." Further, park management told the Logtermans that it had no objection to the mobile home remaining at the site while they were selling it, but that it would not permit any purchaser to occupy the mobile home at its present location in the park.

On August 6, Selgren issued a written order requiring Rolling Acres to replace or abandon all failing septic systems within thirty days. Selgren recognized that Rolling Acres had been pumping the systems regularly, but that the park failed to resolve the problem on a permanent basis pursuant to DILHR's September 1991 directive and his verbal order of May 1992.

On August 21, 1992, the Logtermans initiated a lawsuit against Dawson alleging the following: (1) breach of contract for failure to provide an adequate septic system, (2) violation of a landlord's duties under § 704.07(2)(a) 1-3, STATS., (3) illegal termination of tenancy in violation of § 710.15(5m), STATS., (4) refusal to rent to a mobile home purchaser in violation of WIS.ADM.CODE § ATCP 125.06(1)(d), and (5) that the park's actions constituted a prohibited practice in violation of WIS.ADM.CODE § ATCP 125.09(2). ¹ Dawson argued that it was uneconomical to replace the septic system and she was therefore justified in abandoning the site pursuant to the state's and county's orders. The dispute was tried to a twelve-person jury, which found in favor of the Logtermans and awarded damages in the amount of $19,000.

The trial court denied Dawson's posttrial motion for judgment notwithstanding the verdict or, in the alternative, to change the jury's special verdict answers on insufficiency of the evidence grounds. The trial court also granted the Logtermans' posttrial motion for double damages and attorney's fees pursuant to § 100.20(5), STATS. ² The trial court entered judgment in the total amount of $48,277.50. Dawson appeals the judgment which incorporates the trial court's decision denying her postverdict motions. See RULE 809.10(4), STATS.

We begin with the relevant statutes. The Logtermans' primary argument is that Dawson terminated their lease in violation of § 710.15(5m), STATS., and refused to lease the lot to DePriest in violation of WIS.ADM.CODE § ATCP 125.06(1)(d). Section 710.15(5m) provides in relevant part:

TERMINATION OF TENANCY OR NONRENEWAL OF LEASE. Notwithstanding ss. 704.17 and 704.19, the tenancy of a resident or mobile home occupant in a park may not be terminated, nor may the renewal of the lease be denied by the park operator, except upon any of the following grounds:

....

(g) The park owner or operator is required to discontinue use of the park for the purpose rented as a result of action taken against the park owner or operator by local or state building or health authorities and it is necessary for the premises to be vacated to satisfy the relief sought by the action.

....

(k) Other good cause.

WISCONSIN ADM.CODE § ATCP 125.06(1)(d) provides that no mobile home operator may "[r]efuse to rent a mobile home site to the purchaser of a tenant's mobile home except for a reason specified under s. 710.15(5m), Stats."

Further, the Logtermans alleged that Dawson breached her duty as a landlord under § 704.07(2), STATS., for failing to provide adequate septic service. That statute provides in part:

DUTY OF LANDLORD. (a) Unless the repair was made necessary by the negligence or improper use of the premises by the tenant, the landlord is under duty to:

1. Keep in reasonable state of repair portions of the premises over which he maintains control;

2. Keep in a reasonable state of repair all equipment under his control necessary to supply services which he has expressly or impliedly agreed to furnish to the tenant....

On appeal, as in her motions after verdict, Dawson argues that the undisputed facts elicited at trial are insufficient to permit recovery as a matter of law. We review a trial court's denial of a motion for judgment notwithstanding the verdict (JNOV) de novo, applying the same standards as the trial court. See Allison v. Ticor Title Ins. Co., 979 F.2d 1187, 1195 (7th Cir.1992). A motion for JNOV may be granted when " 'the verdict is proper but, for reasons evident in the record which bear upon matters not included in the verdict, the movant should have judgment.' " Chevron Chemical Co. v. Deloitte & Touche, 168 Wis.2d 323, 331, 483 N.W.2d 314, 317 (Ct.App.1992) (quoting § 805.14(5)(b), STATS.), aff'd, 176 Wis.2d 935, 501 N.W.2d 15 (1993). A motion for JNOV does not challenge the sufficiency of the evidence to support the verdict, but rather whether the facts found are sufficient to permit recovery as a matter of law. Id.

A motion for JNOV presents the same determinations as those raised by a motion for directed verdict. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Boeck, 120 Wis.2d 591, 600, 357 N.W.2d 287, 292 (Ct.App.1984), rev'd on other grounds, 127 Wis.2d 127, 377 N.W.2d 605 (1985).

A motion notwithstanding the verdict amounts to a post-verdict motion for a directed verdict.... It is, in a sense, a demurrer to the evidence. It admits the facts found but contends that as a matter of law those facts are insufficient, though admitted, to constitute a cause of action. [Emphasis added.]

Id. (quoted source omitted). Neither a termination of the Logtermans' tenancy nor a refusal to rent to a prospective purchaser is permitted unless the facts as found establish an exception under § 710.15(5m), STATS. Whether a set of facts is sufficient to meet an exception under the statute is a question of law which we review de novo. See State v. W.R.B., 140 Wis.2d 347, 351, 411 N.W.2d 142, 143 (Ct.App.1987).

In denying Dawson's motion for directed verdict, the trial court ruled that there was a factual dispute as to whether Dawson was required by government authorities to discontinue use of the site leased by the Logtermans. In denying Dawson's motion for JNOV, the court ruled that there was evidence from which the jury could conclude that other options were available to...