Petition — Behling v. Schmidt

79-2078 |

Gspreme Court, U. &

FILED

No. __ uy. 30 1980

| WICHAEL RODAK, JR. CLERM

In the ’

Supreme Court of the United States

OctToBER ‘l'eRM 1979

RUSSELL J. BEHLING and BEHLING’S TRANSFER, INC.,

Petitioners,

VS.

ROBERT E. SCHMIDT, JR. RICHARD M. EVANS and

ROBERT L. SABOW, d/b/a BROWN DEER

DEVELOPMENT COMPANY,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF WISCONSIN

ROBERT E. SUTTON

1409 East Capitol Drive

Milwaukee, Wisconsin 53211

Attorney for Petitioner

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

PAGE

Opinion Below ................-.--- SLE a ilies Ne OR 1

I ae caeepiolaaimnuiiens 2

Questions Presented For Review ...............-.-::-20-0--0+00 2

Constitutional Provisions Involved ......2......2222....-..20----- 2

I UE PU i slopmdasinteeimcnainnaticigocte 2

Reasons for Granting the Writ .......00.00002000....... hidiagaios 6

I. The Court Erred In Refusing To Allow Trial

STRIDE Ge US IR Oa oe 2 N e ce 6

Ul. The Opinion Of The Wisconsin Supreme Court

Should Have Been Published .......02.20.00.2.--...-- 8

ach clits comnaiwcicimeion 9

Appendix:

A—Decision of Wisconsin Supreme Court ........... App. 1

B—Order of Wisconsin Supreme Court .............. App. 21

C—Motion and Memorandum of Defendants ....App. 22

D—Motion for Reconsideration ............2.2............ App. 25

li

AUTHORITIES CITED

Cases

Boddie v. Connecticut, 401 U.S. 371 (1971) -0000000.....

Callanan v. Judd, 23 Wis. 343 (1868) W000...

Gaston v. Babcock, 6 Wis. 503 (1857)...

In re Murchison, 349 U.S. 1 (1955) 200

Labowe v. Balthazor, 180 Wis. 419, 193 N.W. 244, 32

ALR SOR CRI ances...

Millet v. Hayford, 1 Wis. 401 (1853) ww.

Noval v. Rice, 2 (Wis. 22 (1853) 2.20. eee ee

Poe v. Ullman, 367 U.S. 497, 6 L.Ed. 2d 989, 81 S.Ct.

vi BG) Re ee

Sniadach v. Family Finance Corp., 395 U.S. 337 (1969)

State v. Clark, 67 Wis. 229, 30 N.W. 122 (1886) ........

State ex rel. Prentice v. County Court of Milwaukee

County, 70 Wis. 2d 330, 234 N.W. 2d 283 (1975) ....

Tower Building Co. v. Andrew, 191 Wis. 269, 210 N.W.

SAS (ROR ah isecce evens...

Twentieth Century Co. v. Quilling, 136 Wis, 481, 117

NN. W. 2OGU (Re cee eatin...

In the

Supreme Court of the United States

OctToBer T'eRM 1979

No.

RUSSELL J. BEHLING and BEHLING’S TRANSFER, INC.,

Petitioners,

Vs.

ROBERT E. SCHMIDT, JR., RICHARD M. EVANS and

ROBERT L. SABOW, d/b/a BROWN DEER

DEVELOPMENT COMPANY,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF WISCONSIN

Petitioner prays that a writ of certiorari issue to review

the order of the Supreme Court for the State of Wisconsin

entered on April 1, 1980.

OPINION BELOW

The opinion of the Supreme Court for the State of Wis-

consin was filed on April 1, 1980 and is set forth in the

appendix, pp. App. 1-20. The Supreme Court’s denial

of petitioners’ Motion for Reconsideration was ordered on

May 1, 1980 and is set forth in the Appendix, p. App. 21.

2

JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C.

Sec. 1241(1).

QUESTIONS PRESENTED FOR REVIEW

1. Was it error for the Court to deny petitioner trial

by jury?

2. Is the Wisconsin Supreme Court’s failure to publish

its opinion a denial of petitioner’s right to due process?

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Fourteenth Amendment to the

Constitution of the United States.

STATEMENT OF THE CASE

In June of 1974 Brown Deer Development Company

through its co-partner owners Robert E. Schmidt, Jr.,

Richard M. Evans and Robert L. Sabow entered an agree-

ment with Russell J. Behling represented by documents

designated a Lease, Addendum to Lease Agreement and

Option to Purchase, modified by a document designated

Agreement dated November 21, 1974 executed on behalf of

Trebor Development Corporation and Brown Deer Develop-

ment Company by Messrs. Schmidt, Sabow and Evans and

on behalf of Behling’s Transfer, Inc. by Russell J. Behling

and Kathleen R. Behling. These documents were part of a

transaction relating to real property at 5400 West Brown

Deer Road, Brown Deer, Wisconsin upon which was to be

constructed a building which would house the business of

Behling’s Transfer, Inc. Financing for the construction of

the building was obtained by the respondent Brown Deer

Development Company by the execution of a mortgage to

Bankers Life of Des Moines, lowa. The documents repre-

senting the agreements between the parties were furnished

‘

3

to the mortgagee, Bankers Life, to obtain the loan commit-

ment. Subsequently a warehouse building was built upon

the property and the appellant took occupancy of the

premises.

By summons and complaint dated September 27, 1976

the plaintiffs-respondents, Brown Deer Development Com-

pany, a joint venture among Robert EK. Schmidt, Jr.,

Richard M. Evans and Robert L. Sabow purported to com-

mence an action in the Civil Division, Small Claims Branch

of the County Court of Milwaukee County alleging by non-

verified Complaint that the petitioner Russell J. Behling

had failed to comply with the terms and provisions of the

lease as amended by failing to pay rent and tax escrow,

improvement costs per addendum to lease, interest on de-

linquent taxes, liens filed by contractors and _ sprinkler

system for a total default of $193,988.72. (Ree. pp. 1-8, A-

Ap. pp. 114-119) The complaint further alleged that a

notice of default had been served in accordance with the

terms of the lease on September 15, 1976. A second cause

of action in the complaint alleged a claim for damages in

the amount of $203,988.72, the damages appearing to be a

duplicate claim of the amount delinquent under the lease

with the exception of a claim of $10,000 attorneys fees.

The addendum clause of the complaint asked for relief con-

sisting of (1) removal of the appellant from the premises

and restoration of possession to the respondent and (2)

judgment on behalf of the respondent against the appel-

lant in the amount of $203,988.72 together with interest of

not less than $7,000. The summons required the appellant

to appear in response to the complaint on October 6, 1976

at 9:00 a.m. and designated the nature of the demand as

made by an X in the column, Eviction-Commercial (57), and

claimed the amount of the damages, if any, demanded to be

$203,988.72 plus interest.

+

On October 6, 1976 proceedings were had before the

Hon. Elliot N. Walstead and at those proceedings the

respondent appeared by David A. Saichek and the peti-

tioner by Attorney Eli C. Frank. After argument as to

jurisdiction the court set October 18, 1976 as the date for

answer (Rec. p. 45) and October 20, 1976 at 9:30 a.m. for

trial.

The petitioner Behling had requested that Attorney

Frank request trial by jury and when he determined that

Attorney Frank failed to make such a demand, the peti-

tioner terminated the legal services of Attorney Frank

(Ree. pp. 79-80). On October 19, 1976 proceedings were

had before the Court at which time respondent was repre-

sented by Attorney Saichek and the petitioner by Attorney

Norman Skogstad. Attorney Skogstad requested an ad-

journment of the October 20, 1976 trial date (Ree. pp. 48,

53, 55, 56) and requested trial by jury (Rec. p. 60). The

court denied the motions.

On October 20, 1976 proceedings were held before the

Court and the respondents appeared by Attorney Saichek

and the petitioner by Attorney Robert E. Sutton. Attor-

ney Sutton indicated that he had been retained that very

morning by the appellant and requested an adjournment for

the purpose of filing responsive pleadings (Ree. p. 68),

indicating a desire to plead jurisdictional objections (Ree.

pp. 70-75). The motion was denied and the Court held that

it would hold the eviction proceedings at that time. (Ree.

p. 76). A motion for a trial by jury was made and testi-

mony in support thereof furnished by the petitioner to the

effect that he had desired a jury from the commencement of

the proceedings and had fired Attorney Frank because of

his failure to make such a demand. (Rec. pp. 77-84). The

Court denied the motion indicating that the petitioner

‘¢| . ean sue his lawyer for malpractice’’ (Ree. p. 86). Trial

4)

was then held on October 20, 21 and 25, 1976. At the conclu-

sion of the trial the Court ordered the appellant evicted

from the premises. (Rec. pp. 369-375, A-Ap. 110-114) An ap-

peal from the decision of the Court was duly filed with the

Cireuit Court of Milwaukee County. The Circuit Court

affirmed the decision by its memorandum decision of April

20, 1977 and judgment of June 1, 1977. (Ree. pp. 411-4388,

A-Ap. pp. 101-110) The petitioner filed an appeal from

the Circuit Court’s decision with the Supreme Court of

the State of Wisconsin. The Supreme Court affirmed the

decision reached by the Cireuit Court on April 1, 1980. On

April 21, 1980 petitioner filed a motion for reconsideration

and motion and memorandum requesting publication and

challenging the filing of the opinion on April 1, 1980 as an

unpublished opinion. Petitioner’s motions were denied.

The petition for writ of certiorari is directec: to the order

denying reconsideration and the decision of the Supreme

Court dated April 1, 1980 on the issue of the right of peti-

tioner to trial by jury. The petition for certiorari is also

directed to the Wisconsin Supreme Court’s denial of the

motion of petitioner requesting publication of the opinion.

REASONS FOR GRANTING THE WRIT

I,

THE COURT ERRED IN REFUSING TO ALLOW TRIAL

BY JURY

The right of trial by jury in Wisconsin in a civil action

is preserved by Article I, Sec. 5 of the Wisconsin Constitu-

tion and the statutes made and provided. Sec. 805.01, Wis.

Stats.; Callanan v. Judd, 23 Wis. 343 (1868); Millet v.

Hayford, 1 Wis. 401 (1853); Noval v. Rice, 2 Wis. 22

(1853); Gaston v. Babcock, 6 Wis. 503 (1857).

A party is entitled to a jury trial as a matter of right

unless he waives it. Twentieth Century Co. v. Quilling,

136 Wis. 481, 117 N.W. 1007 (1908).

The evidence in the case at bar is uncontradicted that

the appellant desired a jury trial from the outset and in

fact fired the first attorney who represented him inter alia

because he failed to make the affirmative demand for a

jury. It must be noted that that attorney did not waive

a jury. The two attorneys who subsequently represented

the appellant made demand for a jury on the record.

Under the circumstances the denial of the jury to the

petitioner was a clear violation of his rights under the

Constitution of Wisconsin and his rights to due process

and equal protection under the Constitution of the United

States. Labowe v. Balthazor, 180 Wis. 419, 193 N.W. 244,

32 ALR 862 (1923); State v. Clark, 67 Wis. 229, 30 N.W.

122 (1886); State ex rel. Prentice v. County Court of Mil-

waukee County, 70 Wis. 2d 330, 234 N.W. 2d 283 (1975).

The position of the court that the literal provisions of

Sec. 299.21(3) were not met and that the petitioner could

7

sue his prior lawyer for malpractice should be unavailing

as servitude to form over substance. The petitioner

respectfully submits that the literal application of See.

299.21(3), Wis. Stats. by the Small Claims Court violated

the petitioner’s rights to due process and equal protection

under the Constitution of the United States. The fact that

the petitioner requested that his attorney demand a jury

trial was prima facie evidence that he was denied due

process. An attorney’s failure to demand a jury trial ac-

cording to the letter of Sec. 299.21(3) should not preclude

a client’s rights to equal protection in a civil action; the

fact that the petitioner had the misfortune of not having

his desire for a jury trial presented to the court in a

manner prescribed by a Wisconsin Statute because of his

attorney’s misfeasance should not bar him from the rights

bestowed by the constitutions of the State of Wisconsin and

the United States. The notion that the petitioner ‘‘can

sue his lawyer for malpractice’’ (Rec. p. 86) should have

no affect on the fact that the petitioner was denied his

constitutional rights to a jury trial and due process of

law.

In this regard it must be remembered that Sec. 299.21

speaks in terms of ‘‘joinder of issue’’ and, although the

Court rushed the trial, it allowed for additional time for

the responsive pleadings to be filed. (Rec. p. 76) Although

the trial was held on the eviction issue, issue had not been

joined and the time for jury demand had not run. It is

respectfully submitted, regardless of the determination of

whether or not See. 299.21(3) had been literally complied

with, the circumstances revealed by the record compel a

determination that the jury demand of the appellant’s

counsel made on both October 19 and 20, 1976 should have

been accommodated as a matter of constitutional due

process.

8

II.

THE OPINION OF THE WISCONSIN SUPREME COURT

SHOULD HAVE BEEN PUBLISHED

Under the criteria for publication of opinions set forth

in Rule 809.23, Wis. Stats. for the Court of Appeals—

which by implication should apply to opinions filed by the

Supreme Court—the opinion with respect to the issues

decided in Sections I, II and III enunciates and clarifies

new rules of law or at least applies established rules of

law to a factual situation significantly different from any

found in prior published opinions and contains an inter-

pretation and application of Chapter 299 and Section

704.17, Wis. Stats. which should be of substantial public

interest. In addition, the opinion makes a significant

distinction concerning a prior decision—TZ'ower Building

Co. v. Andrew, 191 Wis. 269, 210 N.W. 842 (1926). And

finally, Section II of the opinion appears to be an initial

interpretation of waiver of trial by jury under Chapter

299.

It is respectfully submitted that failure to publish the

opinion is a violation of the rights of the defendants under

the Fourteenth Amendment to the Constitution of the

United States. An essential concomitant of due process of

law as it relates to meaningful access to the courts and

appeal is a resolution of issues raised in such a manner

as to instill confidence of the litigants in the integrity of

the legal process. One of the methods of maintaining faith

in this integrity is that the decisions reached by the appel-

late tribunals shall be subject to scrutiny within the process

and utilized as precedent in subsequent cases. With the

enactment of a rule which prevents such scrutiny and

declares an opinion to be of no precedential value a funda-

mental value served by the appellate process is undermined.

9

As Justice Black stated In re Murchison, 349 U.S. 1

(1955) :

sé

.. . to perform its high function in the best way

justice must satisfy the appearance of justice.’’

Cf. Boddie v. Connecticut, 401 U.S. 371 (1971) and Sniadach

v. Family Finance Corp., 395 U.S. 337 (1969).

The concept of due process is not merely a procedural

safeguard, it affords freedom from arbitrary action. It

has been said that the protection from arbitrary action

is the essence of substantive due process. Poe v. Ullman,

367 U.S. 497, 6 L.Ed. 2d 989, 81 S.Ct. 1752 (1961) and

16 Am. Jur. 2d Const. Law, Chapter 550, pp. 946-949,

Chapter 575, p. 980.

It is respectfully submitted that the unpublished opinion

by its very nature invites arbitrary action. The general

practice and Rule 809.23 should be struck down as uncon-

stitutional on its face and as applied to the instant case.

CONCLUSION

For the foregoing reasons stated above certiorari should

be granted and the order of the Wisconsin Supreme Court

dated April 1, 1980 should be reversed.

Respectfully submitted,

Rosert E. Sutrron

Attorney for Petitioner

APPENDIX

APPENDIX A

STATE OF WISCONSIN : IN SUPREME COURT

No. 77-290 (Filed April 1, 1980)

ROBERT E. SCHMIDT, JR., RICHARD M. EVANS and

ROBERT L. SABOW, d/b/a BROWN DEER DEVEL-

OPMENT COMPANY,

Plaintiffs-Respondents,

Vs.

RUSSELL J. BEHLING and BEHLING’S TRANSFER,

INC.,

Defendants-Appellants.

APPEAL from a judgment of the cireuit court for Mil-

waukee county: WILLIAM R. MOSER, Circuit Judge.

Affirmed.

PER CURIAM. This is an appeal from a circuit court

judgment affirming a county court judgment for eviction

of the defendants from premises owned by the plaintiffs

and used by the defendants as a warehouse.

This action was brought under Chapter 299 of the Stat-

utes,’ the small claims procedure. The summons and com-

plaint were dated September 27, 1976, received by the

sheriff on September 28, 1976, served on September 30 and

' Actions for eviction may be brought under the procedure for

small claims type actions ‘‘regardless of the amount of rent claimed

therein.” Sec. 299.01(1), Stats.

See note 4.

App. 2

October 1, 1976, and filed on October 4, 1976. The ‘‘re-

turn date,’’ the date on which the defendants were re-

quired to appear in court and to plead, was designated as

October 6, 1976. Secs. 299.05, 299.20, Stats. A notice to

quit or pay rent had been sent to the defendants by cer-

tified mail; it had been received on September 15th.

The complaint sought eviction of the tenants and dam-

ages in the amount of $203,988.72 plus interest. The dam-

ages were for past due rental and tax escrow, for improve-

ment costs pursuant to an addendum to the lease, interest

on delinquent taxes, liens filed by contractors hired by

tenant, sprinkler system, and attorney’s fees. The com-

plaint alleged that the tenants had been under notice of

their default since December 30, 1975.

On October 6, 1976 (the return date), Attorney Eli

Frank appeared on behalf of the defendants. He objected

to the service of the notice because it was addressed to

Behling’s Transfer, Inc. and not to Russell J. Behling. The

court found there was a prima facie case of proper service

because the certified mail receipt had been signed by

Russell J. Behling.

Defendants’ attorney requested the production of docu-

ments and challenged the complaint’s allegations of dam-

ages as being: too indefinite and uncertain. Plaintiff’s at-

torney agreed to provide the documents and further in-

formation concerning damages. Plaintiffs requested that a

trial date be set promptly and stated that they were pre-

pared to proceed on both the eviction and damages, but that

the eviction proceeding could be heard first to avoid delay.

Defendants stated that their defense to eviction would

be that they had lost money because of plaintiffs’ breach of

the lease by their improper construction of the building and

their failure to complete construction and that the question

App. 3

of defendants’ damages was an issue in the eviction part of

the proceeding.

The court noted that normally an eviction proceeding is

a summary proceeding and cannot be adjourned without

good cause shown. Defendants thought the larg. amount

of money involved and the complexity was good cause to

adjourn. The court stated that its initial decision was to

treat the eviction part of the proceedings as a summary

action, that the parties could be granted additional time to

prepare for the damage issue, and that it would be willing

to change the proposed procedure as the proceeding

developed.?

The defendants were granted twelve days to answer

(until October 18, 1976), and the trial was set for October

20, 1976.

On October 14th, a stipulation was filed relieving At-

torney Frank as the defendants’ attorney. No new at-

torney was named in the stipulation. An answer was not

filed on October 18. On October 19, Attorney Norman

Skogstad appeared for the defendants. He requested an

adjournment, and after hearing testimony and arguments

from both attorneys, the court found there was no good

cause shown for adjournment and denied the motion. The

defendants’ attorney orally requested a jury trial.

* Although the county court separated the eviction proceedings

from the proceedings to determine damages, the county court did

consider evidence during the eviction proceeding relating to de-

fendants’ arguments that they were justifiably in default on rent

payments.

The county court concluded that the defendants’ arguments were

without merit for the purposes of the eviction proceeding. The

viaintiffs’ claim for damages and the defendants’ counterclaim are

still to be tried.

App. 4

On October 20, Robert Sutton appeared as the defen-

dants’ attorney. Sutton requested additional time to file

an answer and requested a jury trial. The defendant testi-

fied that one of the reasons he had fired Attorney Frank

was because he had not requested a jury trial.

The court decided that the eviction proceeding would be

held as planned and that the consideration of the exact

amount owing would be held on a later date, with time for

the defendants to file an answer as to the issue of damages.

The request for a jury trial was denied, because it was not

filed at or before the time of joinder of issue as required

by sec. 299.21(3), Stats. The court found that time for

joinder of issue had been October 18, 1976, the date the

answer had been due on the issue of eviction. The court

found that other conditions of sec. 299.21(3), Stats., for

requesting trial by jury had not been met: payment of

fees and written demand for trial by jury.

The trial proceeded as scheduled on October 20th. Plain-

tiffs introduced a lease dated June 20, 1974, and an addi-

tional agreement executed December 30, 1974. Plaintiffs

described the lease as a ‘‘triple net lease,’’ an arrangement

by which the developer-owner builds a property for use

by the tenant and leases it to the tenant; and testified that

there was an arrearage in the rent due; that additional

amounts were due under the additional agreement; that

there was a lien on the premises for asphalt paving for a

parking lot; and that because of building code violations,

plaintiffs had been required to install a sprinkler system.

Plaintiffs claimed that defendants were responsible for

payment for the sprinkler system and for the asphalt

paving.

Although the exact amount owing was not an issue in the

eviction part of the trial, the court stated that questions

concerning which party was responsible for paying for an

item and the approximate cost of the item was relevant

App. 5

because the defendants might show that if they were in

default on the lease, the default was justifiable and they

should not be evicted.

The defendant Russell Behling testified that he thought

that his obligations under the lease were contingent upon

proper construction of the building. The defendant testi-

fied that the ordinances for the Village of Brown Deer had

required a sprinkler system as a fire precaution (unlike

the state’s requirements) and that the Village had limited

his occupancy to about 25 percent of the building, which

had reduced his monthly income. ‘The plaintiffs had ex-

pected him to finance the sprinkler system and he had

attempted to obtain a variance from the ordinance. He

could not finance a sprinkler system and so the plaintiffs

installed it. He testified that a significant portion of the

building was not usable because of moisture and dampness

problems. The warehouse was designed to be unheated,

and the defendant had planned to store furniture and other

items in it. Behling testified that the plaintiffs had tried

to remedy the moisture problem by putting a coating on

the outside of the building, but that it did not solve the

problem. The plaintiffs testified that they had had the

outside of the building recoated because they were not

satisfied with the initial coating of the blocks.

The fire chief for the Village of Brown Deer (called by

the plaintiffs) testified that he had told Behling that it was

illegal for him to occupy any part of the building. He

testified that he had seen about 75 percent of the building

occupied and that his subordinates had reported 90 per-

cent.

Defendants relied on the testimony of an architect who

stated that he had visited the building, that the building

had a moisture problem, and that the walls and floors

were wet from moisture entering through the roof and

App. 6

walls. The architect had not examined the roof and did

not know if the water problem had existed during the first

year.

A consulting engineer testified that he had conducted

moisture tests of the walls and had found the moisture

to range from 15 to over 50 percent; he had not conducted

moisture tests of the air in the building. He stated that

he had seen water stains on the walls; that he had ex-

amined the roof and found ‘‘open joints in the flashing,

both the metal flashing and the fabric flashing;’’ and

thought that ‘‘water penetration through the openings in

the flashing’’ was ‘‘the major cause’’ of the moisture prob-

lem in the building.

The plaintiffs’ witness, a roofing contractor from

Cudahy Roofing, the roofing company which had installed

the roof about two and a half years earlier, testified that

he had examined the roof that morning and that there

‘‘might have been a pulling on the flashing with ripples’’

which would have been normal expansion and contraction

of the building, but that there were no tears or breaks in

the flashing. He stated that he did find that a closure

plate which fits over the seam in the metal coping had been

‘‘pried, or some blasted thing’’ and that he ‘‘tried to

put it back together and [he] didn’t have a plyers so [he}

couldn’t close it.’’ He explained that between the pieces

of metal coping a space is left for expansion and that a

closure plate is placed over the seam. He stated that the

defendants’ witnesses had incorrectly called the metal cop-

ing a metal flashing. He identified one of the photographs

which had been introduced by the defendants as a photo-

graph of this closure plate. He stated that the roof would

not leak due to this closure plate being lifted, because the

flashing is under the metal coping and that even if the roof

was flooded or there was a hard rain, the water would

App. 7

not leak threugh. He had found that there was some

settling in the building, but that no water would enter at

the place it had settled. He testified that he had inspected

the interior of the building, found the walls and floor dry

and found cobwebs, which would indicate it had been dry.

He further testified that about a month earlier he had re-

ceived a call from the plaintiffs to check the building for

leaks and his superintendent had gone to check it. He also

testified that his company had had a two-year guarantee

on the roof, which time had passed.

The plaintiffs introduced the testimony of a merchandise

manager for an interior designer who stated that he was

familiar with wood furniture and with fabrics and with

their storage in warehouses which are unheated. He testi-

fied that it is good for furniture to be stored where there

is some humidity in the air and where it is not too dry.

He stated that relative humidity in the air ranging from

15 to 50 percent would not be too wet for the storage of

furniture.

Mr. Robert Williams, Jr., a professional engineer who

specialized in the field of architectural and building con-

struction engineering, also testified for the plaintiffs. He

had designed buildings for one of plaintiffs’ companies

since about 1973, and he had periodically visited the job

site while the warehouse in question was being built. He

testified that he had inspected the warehouse that morn-

ing looking for leaks. He inspected the interior and ex-

terior of the building and had not found any water present

that day. He looked for evidence of water having been

present in the past. In one corner of the building in the

mezzanine level he did notice some streaking of the die

which had been put on the walls and saw some streaking

of dust on the floor. On the story above the mezzanine

level, he checked the ceiling to look for streaking of dye

up close to the roof area. He did not find any other evi-

App. 8

dence of prior water problems on the building. He testi-

fied that the building would not suffer water damage in a

hard rain storm. He stated that in his opinion water had

not entered through the root, but had been put on the wall

from a source such as a hose or bucket. He testified that

the photographs that had been introduced by defendants’

witnesses were of the mezzanine area and that the water

depicted on the walls was not due to natural weather ele-

ments, but was a result of artificially placing the water

there by some human process. He testified that by visual

inspection of the walls, he believed the moisture content

was below 25 percent; that by natural causes it would

seem impossible to read 50 percent; but that such a level

or higher could be artificially induced.

He was questioned about the horizontal line of efflo-

rescence on the wall’ which appeared in some of the pictures

8 Mr. Williams defined efflorescence as:

“A. Effervescence [sic] is a chemical reaction of water

in the alkaline materials in the mortar; and, when the water

from the outside air reaches the alkaline, speckles through the

mortar leeches through the walls. This can be compounded

with different acidic cleaning solutions that—acid would fur-

ther desolve the effervescence [sic] and leech out through the

mortar.

“Q. And effervescence [sic] makes a mark on the block

of the concrete; is that it?

“A. It appears as the salty looking substance on the block,

correct.

“Q. And that’s caused by moisture condensation; is that

right ?

“A. Not caused from moisture condensation, no.

“Q. What causes it?

“A. By water actually raining on the outside, or during

the washing of the block when the water hits the block. It’s

not formed by condensation.

“Q. It’s caused by water?

“A. That’s correct.”

App. 9

introduced by defendants. He explained that the contrac-

tor had

‘*stopped construction at that point because of cold

weather; and this was laid down and protected from

freezing. Construction was restarted at that point....

‘The reason the effervescence (sic) is here is when

they started construction again they had to clean the

dirt and accumulation. They wet the top of the block

down before they started construction; and effer-

vescence (sic) is accelerated in winter construction by

salts they add to the mortar to increase the accelera-

tion of the setting time; so it sets faster and doesn’t

have to be protected; and that is evidently what caused

that. They washed the mortar that was fresh. It

had excess salts and the construction is shown all the

way across. Normal effervescence (sic) would not

appear in a horizontal line. This was due to a break-

ing in the construction. It was caused by water, but

the effervescence (sic) has been there, probably, in

excess of a year and a half or two years, and that

didn’t occur at any time last year.’’

He testified that other smaller lines of efflorescence had

been caused by washing the wall. He stated that currently

there was not excessive moisture in the building which

would damage furniture and that he did not see any evi-

dence that there had previously been excessive moisture in

the warehouse caused by natural elements.

One of the plaintiffs who had been a field supervisor

at construction testified that in his opinion the water

shown in the photographs which had been introduced by

defendants was artificially induced. He agreed with Mr.

Williams’ testimony that the horizontal line of efflorescence

originated during construction. He stated that when he

was in the building about a month earlier he had observed

that all of the building was dry except for a water spot

of about one foot in diameter in the center of the roof

EET ES EE PE III EE EIR 2

App. 10

in the mezzanine area. lle had contacted Cudahy Roof-

ing and asked them to check it. After checking it, Cudahy

Roofing reported that it was not a roof leak, but it was

apparently condensation. He stated that the defendant

Behling had never told him about any water problems and

that he had never heard Behling mention a water problem

before Behling’s testimony in court during this trial.

The defendant Behling was called to testify again and

stated that he had never artificially induced water onto the

walls. He stated that at about the time the construction

was completed, one of the plaintiffs had induced water

onto the wall to try to clean it. He testified that in the

action brought by the Village of Brown Deer for illegal

occupancy of the building, the municipal judge informed

him that he could temporarily occupy 25 percent of the

warehouse space and that he would have to have a sprinkler

system in one section and smoke devices in another part.

He testified that it was ‘‘an absolute lie’’ that the water

shown in the photographs was ‘‘the result of someone

sprinkling that water with a hose.’’

A representative of Imperial Van Lines was called as a

witness by the defendants. He testified that he had con-

sidered leasing part of the warehouse for storage of goods

about a year earlier and that he had ‘‘turn[ed] it down’”’

because it had water marks and that the walls felt damp.

He stated that he had not contracted with any other storage

facility in the Milwaukee area; that his closest facility was

in Waukegan, Lllinois.

At the defendants’ request the court inspected the prem-

ises on October 21, 1976 with the court reporter and repre-

sentatives of the plaintiffs and defendants.

On October 25, 1976, after hearing final arguments, the

court announced its decision. The court found that the

agreement between the parties was a twenty-five year lease

App. 11

and that leases in commercial transactions commonly in-

clude provisions relating to construction costs, taxes, pay-

ment of utilities and other matters. The court found that

the lease provided for ten days’ notice and that the notice

provision was valid under sec. 704.17(3) and (5), Stats.

The court found that the plaintiffs did not install a

sprinkler system earlier at the request of the defendants

and that therefore the defendants could not argue that they

were relieved of their obligation to pay rent by the plain-

tiffs’ failure to install the system.

The court next addressed defendants’ allegation that

the defendants were not required to pay rent because the

building was unsuitable for the storage of goods. The court

summarized its on-site inspection of the building, noting

that it was a layman: the building was dry when the court

visited; there was no indication that the piles of cardboard

leaning against walls had ever been wet; it appeared to

be a well-constructed building. The court recognized that

there had been conflicting expert testimony during the

trial. The court stated that it did not believe that Im-

perial Van Lines had intended to use this warehouse and

had needed a warehouse in the Milwaukee area, because

the company had not chosen another warehouse in the Mil-

waukee area. The court found that moisture on the walls

shown in the photographs had been artificially induced and

did not represent the true character of the building.

The court found that rent and other payments were in

default and found that the plaintiffs were entitled to a

judgment of eviction. The court set a date for the defen-

dants to submit an answer concerning the amount of dam-

ages claimed and noted that a date would be set for trial

on that issue.

On appeal to the circuit court, the judgment of eviction

by the county court was affirmed by memorandum decision

dated April 20, 1977 and judgment dated June 1, 1977.

On appeal to this court the defendants raise four issues.

App. 12

I.

First, defendants argue that the county court did not

have jurisdiction of this case under chapter 299, Stats., be-

cause of the amount of damages claimed and because the

relationship between the parties was allegedly more com-

plex than landlord and tenant. Defendants’ argument that

because plaintiffs claimed a large amount of damages they

could not bring the action under chap. 299 has no merit.

Sec. 299.01(1), Stats. 1975, provides that actions for evic-

tion may be brought in county court under the procedure

for small claims type actions ‘‘regardless of the amount

of rent claimed therein.’’* Sec. 299.40, Stats. allows the

plaintiffs to ‘‘join with [their] claim for restitution of the

premises any other claim against the defendant arising out

of his possession or occupancy of the premises.’”

In attacking the lower court’s finding that the agree-

ment between the parties was a lease, the defendants do not

4Sec. 299.01 (intro.) and (1), Stats. 1975, provides:

“299.01 Applicability of chapter. Subject to the limita-

tions ot ss. 299.11 and 299.12, the procedure in this chapter

shall be used in county court in the following actions:

“(1) EVICTION ACTIONS. Actions for eviction as

defined in s. 299.40 regardless of the amount of rent claimed

therein.”

5 Sec. 299.40, Stats., provides:

“299.40 Eviction actions. (1) WHEN COMMENCED.

A civil action of eviction may be commenced by a person en-

titled to the possession of real property to remove therefrom

any person who is not entitled to either the possession or oc-

cupancy of such real property.

“(2) JOINDER OF OTHER CLAIMS. The plaintiff

may join with his claim for restitution of the premises any

other claim against the defendant arising out of his possession

or occupancy of the premises.

“(3) EXCEPTION. Nothing in this section shall affect

ss. 704.09(4) and 704.19.”

App. 13

refer to any evidence in the record to support their as-

sertions that the relationship was other than that of land-

lord-tenant.°®

II.

Second, the defendants argue that they and their at-

torneys did not waive trial by jury and that under the cir-

cumstances the denial of trial by jury violated the Wiscon-

sin Constitution and the due process and equal protection

provisions of the United States Constitution.

Section 299.21(3)(a), Stats., provides that in order to

obtain a jury trial in an eviction action, the party request-

ing a jury trial pay certain fees and file a written demand

for trial by jury. Otherwise ‘‘the right to jury is waived

forever.’’ In eviction actions, the demand must be filed

at or before the time of joinder of issue.’

“ The defendants refer to an option to purchase which is printed

in their appendix but which is not contained in the record. De-

fendant has given no reason for this court to take judicial notice

of the document on appeal and this court does not take judicial

notice of it.

7 The full text of sec. 299.21, Stats. 1975, provides:

299.21 Trial. (1) D&TERMINATION OF METHOD OF TRIAL.

In the absence of a jury demand, trial shall be to the court.

(2) Trrat sy court. If trial is to the court, the case

may, with the consent of all the parties, be tried on the return

day.

(3) Trai py jury. (a) Any party may, upon payment

of the fees specified in par. (b), file a written demand for

trial by jury. If no party demands a trial by jury, the right

to trial by jury is waived forever. In eviction actions, such

demand shall be filed at or before the time of joinder of issue;

in all other actions within 20 days thereafter.

(b) The fee for a jury is $24, plus an additional amount

as suit tax which will result in a suit tax payment of the amount

(footnote continued)

App. 14

Defendants at no time filed a written deman“ for trial

by jury or paid the required fees. With regard to the tim-

ing of the demand, the trial judge found that the time for

joinder of issue had been extended to October 18, 1976, the

date on which the answer had been due on the eviction

part of the case.*

In eviction actions, the answer is not required to be in

writing, unless plaintiff's title is put in issue. See. 299.43,

Stats. In this case the defendants were given an oppor-

tunity to file a written answer. The defendants failed to

do so and their failure to respond was treated as a denial

of all the allegations of the complaint. Defendants made

their first oral request for jury trial on October 19, 1976,

after the court had refused their requests for adjourn-

ment. Defendants argue that the time for joinder of issues

was postponed on October 20, 1976, when the court allowed

additional time to file an answer. This argument ignores

the fact that the court restricted the later answer to the

question of the amounts owing, which was not to be deter.

(footnote continued )

which would have been payable had the action been com-

menced in circuit court and additional clerk’s fee of $6.

(4) Jury procepure. If there is a demand for a trial by

jury, the parties shall proceed as if the action had originally

been begun as a proceeding under Title XLIIA; the plaintiff

shall, when no complaint has previously been served and filed,

accordingly file and serve a written complaint within 20 days

of the jury demand, and the court shall place the case on the

trial calendar of the county court or forthwith transfer the

case to circuit court for trial.

8 The date for joinder of issue would be the return date of the

summons, unless the date is adjourned. See Secs. 299.20 and 299.27,

Stats., and Boden, 1971 Revision of Eviction Practice in Wiscon-

sin, 54 Marq. L.R. 298, 305 (1971).

App. 15

mined in the eviction part of the trial but in the second

part of the trial.

Nevertheless, defendants argue violation of their right

under art. I, sec. 5 of the Wisconsin Constitution:

‘“‘The right of trial by jury shall remain inviolate,

and shall extend to all cases at law without regurd

to the amount in controversy; but a jury trial may be

waived by the parties in all cases in the manner pre-

scribed by law... .”’

The constitution expressly provides that the right to jury

trial in civil cases may be waived in the manner prescribed

by law. Sec. 299.21(3), Stats., is a law which prescribes

that failure of a party to act constitutes a waiver of jury

trial in cases to which ch. 299 applies. This statute has

been held constitutional. State ex rel. Prentice v. County

Court, 70 Wis.2d 230, 239, 234 N.W.2d 283 (1975). Defen-

dants did not meet the statutory requirements for request-

ing a jury trial and therefore waived the right to jury

trial. There is nothing in the record to support defen-

dants’ assertion that their constitutional right to a jury

trial has been violated.

ITI.

Third, defendants argue that the ten-day notice which

they received was not valid under sec. 704.17, Stats., and

that they should have received thirty-days’ notice.

Sec. 704.17(3), Stats., provides that in leases for more

than one year the landlord shall give the tenant at least

thirty days’ notice requiring him to comply with the lease

and that if the tenant fails to comply with the lease within

that period the tenancy is terminated. Sec. 704.17(5),

Stats., permits leases for more than one year to contain

App. 16

contrary provisions regarding termination.’ The relation-

ship of these two subsections has been summarized as fol-

lows in the Drafting Committee’s Comment (1969) to see.

® Relevant portions of secs. 704.17, 704.21 and 704.23, Stats. :

“704.17 Notice terminating tenancies for failure to pay

rent or other breach by tenant.

(3) LEASE FOR MORE THAN ONE YEAR. If a

tenant under a lease for more than one year fails to pay rent

when due, or commits waste, or breaches any other covenant

or condition of his lease, the tenancy is terminated if the land-

I-rd gives the tenant notice requiring him to pay the rent,

repair the waste, or otherwise comply with the lease on or

before a date at least 30 days after the giving of the notice,

and if the tenant fails to comply with the notice. A tenant is

deemed to be complying with the notice if promptly upon re-

ceipt of such notice he takes reasonable steps to remedy the

default and proceeds with reasonable diligence, or if damages

are adequate protection for the landlord and the tenant makes

a bona fide and reasonable offer to pay the landlord all dam-

ages for his breach; but in case of failure to pay rent, all rent

due must be paid on or before the date specified in the notice.

“(4) FORM OF NOTICE AND MANNER OF GIV-

ING. Notice must be in writing and given as specified in s.

704.21. If so given, the tenant is not entitled to possession or

occupancy of the premises after the date of termination speci-

fied in the notice.

“(5) CONTRARY PROVISION IN THE LEASE.

Provisions in the lease or rental agreement for termination

contrary to this section are invalid except in leases for more

than one year.”

“704.21 Manner of giving notice. (1) NOTICE BY

LANDLORD. Notice by the landlord or a person in his

behalf must be given under this chapter by one of the follow-

ing methods:

“(a) By giving a copy of the notice personally to the

tenant or by leaving a copy at his usual place of abode in

the presence of some competent member of his family at

(footnote continued)

App. 17

704.17, printed in 1979 Special Pamphlet West’s Wisconsin

Statutes Annotated: ‘‘Sub. (3) will, therefore, govern

only if the lease does not provide otherwise.”’

Paragraph 12 of the lease provides:

“12. DEFAULTS: It is mutually agreed that,

in the event Lessee shall default in the payment of

rentals when due, Lessor shall forward written notice

(tootnote continued )

least 14 years of age, who is informed of the contents of

the notice;

“(b) By leaving a copy with any competent person

apparently in charge of the rented premises or occupying

the premises or a part thereof, and by mailing a copy by

regular or other mail to the tenant’s last-known address;

“(c) If notice cannot be given under par. (a) or (b)

with reasonable diligence, by affixing a copy of the notice

in a conspicuous place on the rented premises where it

can be conveniently read and by mailing a copy by regu-

lar or other mail to the tenant’s last-known address;

‘“(d) By mailing a copy of the notice by registered or

certified mail to the tenant at his last-known address;

“(e) By serving the tenant as prescribed in s. 801.11

for the service of a summons.

“(3) CORPORATION OR PARTNERSHIP. If no-

tice is to be given to a corporation notice may be given by

any method provided in sub. (1) or (2) except that notice

under sub. (1) (a) or (2) (a) may be given only to an

officer, director, registered agent or managing agent, or left

with an employe in the office of such officer or agent during

regular business hours. If notice is to be given to a partner-

ship, notice may be given by any method in sub. (1) or (2)

except that notice under sub. (1) (a) or (2) (a) may be

given only to a general partner or managing agent of the

partnership, or left with an employe in the office of such part-

ner or agent during regular business hours, or left at the

usual place of abode of a general partner in the presence of

(footnote continued)

App. 18

of such default by certified mail, return receipt re-

quested, or by personal delivery, addressed to Lessee

as hereinafter set forth, and failure on the part of

Lessee to cure such default within 10 days after the

date of receipt of said notice shall, at the option of

Lessor, work a forfeiture of this Lease. In case Lessee

so continues the default of any rental payment due

after notice, Lessee shall not be released of any lia-

bility for rent hereunder by reason of Lessor’s re-

possession of the Premises or by Lessor’s taking any

other legal proceedings available to it upon such de-

fault. Nor shall a forfeiture of this Lease release

Lessee from continuing liability for the payment of

rent as herein provided. Rentals shall include taxes

and insurance premium escrows. If Lessor, by reason

of Lessee’s late payment is required to pay lender

late penalty, Lessee agrees to pay same.

‘‘TIt is mutually agreed that in the event Lessee

shall default in any of the terms and provisions of

this Lease other than payment of rent, Lessor shall

be required to forward written notice of such default

(footnote continued )

some competent member of his family at least 14 years of age,

who is informed of the contents of the notice.

“(4) NOTICE TO ONE OF SEVERAL PARTIES. If

there are 2 or more landlords or 2 or more cotenants of the

same premises, notice given to one is deemed to be given to

the others also.

“(5) EFFECT OF ACTUAL RECEIPT OF NOTICE.

If notice is not properly given by one of the methods specified

in this section, but is actually received by the other party, the

notice is deemed to be properly given; but the burden is upon

the party alleging actual receipt to prove the fact by clear

and convincing evidence.”

“704.23 Removal of tenant on termination of tenancy. If

a tenant remains in possession without consent of his landlord

after termination of his tenancy, the landlord may in every

case proceed in any manner permitted by law to remove the

tenant and recover damages for such holding over.”

App. 19

by registered mail, addressed to Lessee as hereinafter

set forth, and Lessee agrees that if it be in default as

set forth in such notice, it will cure such default with-

in 20 days after the date of receipt of such notice (or

in the event such default is of such a character as to

require more than 20 days to cure, Lessee will use

due diligence to cure such default). And, in the event

Lessee shall fail to cure such default as herein set

forth, Lessor may cure such default and the cost and

expense thereof shall be deemed to be additional rent

to be paid by Lessee on the next day when monthly

rental shall become due and collectible.

‘‘Any amounts due Lessor by Lessee not paid when

due shall bear interest thereafter at the legal rate.

‘‘Tf, however, after such notice to Lessee of a de-

fault and an opportunity to cure the same, Lessee

shall refuse to cure or make good any such default,

Lessor may, at its option, terminate this Lease.’’

The county court and the circuit court found that the

lease provision for ten-day notice governed and was valid

under sec. 704.17(5).

The defendants cite Tower Building Co. v. Andrew, 191

Wis. 269, 210 N.W. 842 (1926), for their argument that in

order to reduce the amount of notice needed, paragraph

12 of the lease would have had to use the word ‘‘eviction’’

and that ‘‘the notice given by the lessor that the lease was

by its terms forfeited and terminated was effective for

only that purpose; however, for the lessor to invoke an

action in unlawful detainer against the appellant he must

comply with the notice provisions of sec. 704.17(3)—30

days notice.’’ We do not accept this line of reasoning.

Sec. 704.17(3) and (5) use the word ‘‘termination,’’ not

‘‘eviction,’? and defendants’ argument admits that the

ten-day notice was effective for terminating the lease.

More importantly, unlike the situation in Tower Building

App. 20

Co. v. Andrew, in which the landlord did not abide by the

notice requirements of the unlawfu! detainer statute, in

the present case the plaintiffs gave notice pursuant to the

lease provision as authorized by sec. 704.17(3) and (5),

Stats.

IV.

Fourth, defendants argue that the county court erred

in its resolution of the issue of credibility concerning the

‘‘eritical fact’’ of whether the building had been defective

due to moisture accumulation which prevented appellants

from using the warehouse.

The county court found that the building did not have

a problem of excess moisture caused by natural elements

and that the moisture on the walls shown in the photo-

graphs had been artificially induced.

On appeal, the trial court’s findings of fact will not be

upset unless they are against the great weight and clear

preponderance of the evidence. In order for this court to

reverse the trial court, the evidence contrary to the finding

must constitute the great weight and clear preponderance

of the evidence. Mitchell v. Western Casualty & Surety

Co., 30 Wis.2d 419, 421, 141 N.W.2d 212 (1966).

On review of the evidence, which has been previously

summarized in this opinion, we cannot conclude that the

county court’s findings were against the great weight and

clear preponderance of the evidence. The judgment of

the circuit court which affirmed the county court is there-

fore affirmed.

App. 21

APPENDIX B

Office of the Clerk

SUPREME COURT

State of Wisconsin

Madison, May 13, 1980

To David A. Saichek

Gaines & Saichek

161 W. Wisconsin Avenue

Milwaukee, WI 53203

Robert E. Sutton

1409 E. Capitol Drive

Milwaukee, WI 53211

The Court today announced an order in your case as

follows:

#77-290 Robert T. Schmidt, Jr., et al v. Russell J.

Behling, et al

Motion for reconsideration denied with costs.

Marilyn L. Graves

Clerk of Supreme Court.

App. 22

APPENDIX C

STATE OF WISCONSIN

IN SUPREMI: COURT

ROBERT E. SCHMIDT, Jr.,

RICHARD M. EVANS and

ROBERT L. SABOW, d/b/a

BROWN DEER DEVELOPMENT COMPANY,

Plaintiffs-Respondents,

vs. No. 77-290

RUSSELL J. BEHLING and

BEHLING’S TRANSFER, INC.,,

Defendants-Appellants.

MOTION AND MEMORANDUM OF DEFENDANTS

REQUESTING PUBLICATION AND CHALLENGING

THE FILING OF THE OPINION OF APRIL 1, 1980

AS AN UNPUBLISHED OPINION

NOW COME the defendants-appellants, RUSSELL J.

BEHLING and BEHLING’S TRANSFER, INC., by their

attorney, ROBERT E. SUTTON, and respectfully moves

the Henorable Supreme Court for the entry of an order

directing that the opinion filed April 1, 1980 be published

for the following reasons:

1. That under the criteria for publication of opinions

set forth in Rule 809.23, Wis. Stats. for the Court of Ap-

peals—which by implication should apply to opinions filed

by the Supreme Court—the opinion with respect to the

App. 23

issues decided in Sections I, II and III enunciates and

clarifies new rules of law or at the least applies established

rules of law to a factual situation significantly different

from any found in prior published opinions and contains

an interpretation and application of Chapter 299 and Sec-

tion 704.17, Wis. Stats. which should be of substantial pub-

lic interest. In addition, the opinion makes a significant

distinction concerning a prior decision—Z'ower Building

Co. v. Andrew (1926) 191 Wis. 269, 210 N.W. 842. And

finally, Section II of the opinion appears to be an initial

interpretation of waiver of trial by jury under Chapter

299.

2. It is respectfully submitted that failure to publish

the opinion is a violation of the rights of the defendants

under the Fourteenth Amendment to the Constitution of

the United States. An essential concomitant of due process

of law as it relates to meaningful access to the courts and

appeal is a resolution of issues raised in such a manner

as to instill confidence of the litigants in the integrity of

the legal process. One of the methods of maintaining faith

in this integrity is that the decisions reached by the appel-

late tribunals shall be subject to scrutiny within the pro-

cess and utilized as precedent in subsequent cases. With

the enactment of a rule which prevents such scrutiny and

declares an opinion to be of no precedential value a fun-

damental value served by the appellate process is under-

mined.

As Justice Black stated In re Murchison (1955) 349 U.S.

a

‘* . , to perform its high function in the best way

justice must satisfy the appearance of justice.’’

Cf. Boddie v. Connecticut (1971) 401 U.S. 371 and Sma-

dach v. Family Finance Corp. (1969) 395 U.S. 337.

App. 24

The concept of due process is not merely a procedural

safeguard, it affords freedom from arbitrary action. It

has been said that the protection from arbitrary action is

the essence of substantive due process. Poe v. Ullman

(1961) 367 U.S. 497, 6 L.Ed. 2d 989, 81 S.Ct. 1752 and 16

Am. Jur. 2d Const. Law, Chapter 550, pp. 946-949, Chap-

ter 575, p. 980.

It is respectfully submitted that the unpublished opin-

ion by its very nature invites arbitrary action. The general

practice and Rule 809.23 should be struck down as uncon-

stitutional on its face and as applied to the instant case.

Dated at Milwaukee, Wisconsin, April 21, 1980.

Respectfully submitted,

ROBERT E. SUTTON

Attorney for Defendants-Appellants

App. 25

APPENDIX D

STATE OF WISCONSIN

IN SUPREME COURT

ROBERT E. SCHMIDT, Jr.,

RICHARD M. EVANS and

ROBERT L. SABOW, d/b/a

BROWN DEER DEVELOPMENT COMPANY,

Plaintiffs-Respondents,

vs. No. 77-290

' RUSSELL J. BEHLING and

BEHLING’S TRANSFER, INC.,

Defendants-Appellants.

MOTION FOR RECONSIDERATION

NOW COME the defendants-appellants, RUSSELL J.

BEHLING and BEHLING’S TRANSFER, INC., by their

attorney, ROBERT E. SUTTON, pursuant to Rules 809.64

and 809.14, Wis. Stats. and moves the Honorable Supreme

Court for reconsideration of the decision filed April 1,

1980 for the following reason:

1. Section II of the opinion—wherein the Court held

that trial by jury had been waived by the defendants for

noncompliance with the provisions of Section 299, Wis.

Stats.—did not analyze, discuss or consider the fact that

App. 26

the defendants presented uncontradicted evidence to the

trial court before trial which established that the defen-

dants had requested their initial attorney to make a de-

mand for trial by a jury within the statutory period. His

failure to make such demand was a cause of the retention

of other counsel. (Record pp. 78-86)

On the issue of right to jury trial the opinion is also

silent concerning Section 805.01, Wis. Stats. and the appli-

cation vel non of the holding of Krueger v. State (1978) 82

Wis. 2d 272.

CONCLUSION

For the foregoing reasons it is respectfully submitted

that the opinion should be reconsidered and reversed on

the grounds that under the circumstances the federal and

state constitutional rights of the defendants were violated

by the trial court holding that the defendants jury trial

right had been waived.

Dated at Milwaukee, Wisconsin, April 21, 1980.

Respectfully submitted,

ROBERT E. SUTTON

Attorney for Defendants-Appellants