# Petition — Behling v. Schmidt

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 843

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2644%3A1. Public record. Not legal advice.