author:
BROWN, J.
      (Abrahamson, C.J.,

text:
    State of Wisconsin, Plaintiff-Respondent, v. Van G. Norwood, Defendant-Appellant.

    Court of Appeals

      No. 2004AP1073-CR.

      Oral argument August 8, 2005.

      Decided September 21, 2005.

    2005 WI App 218
    (Also reported in 706 N.W.2d 683.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of and oral argument by Terry Evan Williams of Williams Law Office of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and David J. Becker, assistant attorney general. There was oral argument by David J. Becker.

    Before Snyder, PJ., Brown and Anderson, JJ.

       Petition to review denied 1-20-06.

   BROWN, J.

¶ 1. Van G. Norwood appeals from a judgment of conviction for sexual assault of a child and an order denying his motion for postconviction relief. He makes three claims: (1) that he was entitled to a substitution of judge because his substitution request came prior to any preliminary contested matter; (2) that his letter to the court offering to plead guilty, which contained inculpatory statements, should not have been admitted because our state statutes prohibit such evidence from coming in; and (3) that it was improper for the State to put on "other acts" evidence in its case-in-chief before the victim testified. We affirm. The "preliminary contested matter" test for whether a defendant made a timely substitution request applies only in civil cases; in criminal cases, we ask whether proceedings have begun. Thus, the first issue fails. While none of Norwood's offer to plead guilty should have come in, in this case the error was harmless. Finally, we know of no law that precludes the State from presenting "other acts" evidence first.

¶ 2. On April 18, 1999, David W. asked Norwood to babysit his two children while he went out with another friend. While he was out, his eight-year-old daughter Angelia occupied herself by coloring pictures on the couch. At some point, Norwood, who was sitting next to her, asked her for a kiss, and she obliged him with a kiss on the cheek. Norwood began licking her face, attempted to put his tongue in her mouth, and reached in her pants to touch her genitals. Afterward, he unsuccessfully attempted to bribe her with fifteen dollars in order to prevent her from reporting the incident to her father. When David returned home, Angelia ran to him in tears and informed him that Norwood "did something bad." David led his daughter into the bathroom, where she explained what Norwood had done. He attempted to beat Norwood up and later, when Norwood had left, called the police. Two days later, the State filed charges against Norwood for first-degree sexual assault of a child by a persistent repeat offender.

¶ 3. At the adjourned jury trial on November 1, the court noted that the judge originally assigned to the case had become ill and asked whether the defendant had any objections to the judge currently presiding over the proceeding. Defense counsel stated that Norwood had no objection. The parties discussed several matters. The State indicated that it had an "other acts" motion pending and also expressed an interest in introducing the contents of a letter that Norwood had written to the court as an admission against interest by a party opponent. Defense counsel changed the subject, indicating that her client wished to withdraw a previously entered NGI plea and to proceed upon a plea of not guilty. Following a colloquy, the court allowed Norwood to change his plea. Subsequently, the court again asked Norwood whether he objected to the sitting judge. This time the court personally addressed Norwood, who indicated that he would prefer to have the case sent back to the original judge. The State pointed out that the court had already taken action in the proceedings, and the court ultimately concluded that it could not allow a substitution in light of that circumstance.

¶ 4. The court heard the parties' arguments concerning Norwood's letter to the court the following day after jury selection. Specifically, the State wished to offer the following portion of the letter: "I don't want the people involved in my case to have to go to trial either. I know they are good people and should not have to suffer for what I've caused to happen, which should not have come into their lives." Defense counsel objected that offers to settle are not admissible and that, as a whole, the letter constituted an offer to settle. According to defense counsel, "[I]t's impossible to read this letter without seeing this letter as an offer of settlement. [Norwood] says I'm willing to plead out to a Class B felony." The court declined to rule on the issue until trial.

¶ 5. At the same proceeding, the court heard the State's "other acts" motion. The State wanted to introduce Norwood's prior conviction for sexual assault of a victim named Trina O. Norwood objected to admitting the evidence, particularly in the State's case-in-chief, but the court granted the motion.

¶ 6. On November 3, the jury trial began. The State called Trina as its first witness. Her testimony was as follows: In 1987, when Trina was eleven years old, she went across the street to play with two neighbor boys who lived in Norwood's home. Norwood summoned Trina over to the couch to watch television with him. A few minutes later, he removed her pants and touched her vaginal area. He also unzipped his own pants and attempted to have intercourse. Trina told him twice to get off of her before he left her alone.

¶ 7. The State next presented the testimony of David's friend, who had returned to the house with David and observed Angelia crying and running to her father. The friend testified that he also saw Norwood buttoning his pants and grabbing his belt, at which point Norwood said, "I'm sorry." David's testimony followed, after which the State presented the testimony of a police detective who testified that Norwood never returned to work after the incident. She also testified that Norwood could not be found at his apartment, which was in disarray and looked as though someone had hurriedly packed some belongings and left. According to the detective, a check of Norwood's bank records revealed that Norwood had stopped at an ATM machine and withdrawn all but three dollars from his account. The State presented Angelia's testimony last and then rested.

¶ 8. Norwood testified on his own behalf. Just prior to cross-examination, the State renewed its request to admit the above-quoted portion of Norwood's letter to the court. The trial court granted the motion, and the prosecutor read the statements. Also during cross-examination, Norwood corroborated the police detective's account of his flight, admitting that after the incident, he rushed home, packed up everything he owned, withdrew all but three dollars from his bank account, and took off for California. He further admitted that he had put his hand in Angelia's pants and touched her vaginal area but insisted that this was purely accidental and not done for his own gratification.

¶ 9. After Norwood had rested and the jury retired to deliberate, the jurors asked to see the letter to the court. The court allowed them to see the admitted portions. Some time later, the jury came back with a verdict of guilty. The court sentenced Norwood to life imprisonment without the possibility of parole or extended supervision. Norwood moved for postconviction relief, which the court denied. Norwood now appeals.

Substitution of Judge

¶ 10. Norwood first asserts that although the court ultimately denied his request to send the case back to the originally assigned judge, it did so only after initially granting the request. Thus, he argues, the court lost authority to continue with the case, and its subsequent ruling rescinding its grant of substitution was a nullity. Norwood relies on the following exchange, which occurred after he indicated he wished the case to go back to the originally assigned judge:

[STATE]: See, Your Honor, the fact is that the defendant does not have the right to file a substitution at this point and I don't think he should decide whether this case is going to stay with you or go to Judge Wilk.
THE COURT: He can, though, because—
STATE: No.
THE COURT: —it's not assigned to me, and when we substitute a different judge they have a renewed right of substitution.
STATE: They do until the Court takes action, and you just took action, judge. You just took an action in this matter. You had him withdraw his [NGI plea] ....

Norwood views "[h]e can, though" as a grant of substitution. We disagree. The court was clearly addressing the prosecutor, explaining to him why the court did not concur in the prosecutor's assertion that it was too late for Norwood to substitute. It was not in itself a decision on the part of the court.

¶ 11. Alternatively, Norwood argues that if the court did fail to grant his substitution request, it did so improperly because he had not waived his right to substitute pursuant to Wis. Stat. § 971.20(5) (2003-04). Citing Pure Milk Products Cooperative v. National Farmers Organization, 64 Wis. 2d 241, 219 N.W.2d 564 (1974), Norwood maintains that his request to send the case back to the original judge was timely because "the court did not rule in any contested matter." See id. at 248-50 (right to substitution of judge waived if no request made before hearing of preliminary contested matters).

¶ 12. We hold that Pure Milk's "preliminary contested matter" rule does not apply to substitutions of judge pursuant to Wis. Stat. § 971.20(5). Section 971.20(5) reads in relevant part:

(5) Substitution op TRIAL judge subsequently assigned. If a new judge is assigned to the trial of an action and the defendant has not exercised the right to substitute an assigned judge, a written request for the substitution of a new judge may be filed with the clerk within 15 days of the clerk's giving actual notice or sending notice of the assignment to the defendant or the defendant's attorney .... If the notification occurs within 48 hours of the trial or if there has been no notification, the defendant may make an oral or written request for substitution prior to the commencement of the proceedings.

The standard in this statute is whether "proceedings" have commenced. Pure Milk interpreted a different statute, applicable to civil actions or proceedings. See Pure Milk, 64 Wis. 2d at 246; Judicial Council Note, 1977, Wis. Stat. § 801.58 (Pure Milk "preliminary contested matters" rule codified in § 801.58). In State ex rel. Mace v. Circuit Court for Green Lake County, 193 Wis. 2d 208, 221-22, 532 N.W.2d 720 (1995), the court specifically declined to engraft the "preliminary contested matters" rule of § 801.58 onto § 971.20. Although Mace construed § 971.20(4), "Substitution of trial judge originally assigned," while this action implicates § 971.20(5), "Substitution of trial judge subsequently assigned," we generally attempt to harmonize provisions in the same statute by reading them together. See R.W.S. v. State, 162 Wis. 2d 862, 871, 471 N.W.2d 16 (1991) (courts to read multiple statutes in same chapter in pari materia). Because Norwood's plea withdrawal constitutes a "proceeding" within the meaning of § 971.20(5), his argument fails.

Letter to the Court

¶ 13. Norwood also contends that the court erred when it admitted portions of his letter into evidence. In the letter, Norwood expressed his desire to not go through with the trial. He stated that he wished to be placed in a facility in the care of "mental doctors" who could help him sort out what was wrong with him and help him understand his behavior. He requested the' court to sentence him for a Class B felony and to impose whatever punishment it deemed fair. Norwood also stated, "I don't want the people involved in my case to have to go to trial either. I know they are good people and should not have to suffer for what I've caused to happen, which should not have come into their lives." Again, the jury heard the quoted portion.

¶ 14. Before we address this issue, we deem it important to detail how the issue came before us. Prior to trial, defense counsel objected to the letter on the ground that it constituted an offer to settle: "[IJt's impossible to read this letter without seeing this letter as an offer of settlement. [Norwood] says I'm willing to plead out to a Class B felony." Defense counsel also stated:

But then the issue is do we sever the letter to the extent that the rest of it doesn't make sense? Are we taking something out of context that really belongs in context because this is a letter — this is very, very clearly a letter asking the judge to take a certain action, because Mr. Norwood ... [believes] . . . that a judge can control, you know, what the settlement is in a case.

At trial, the State asserted that it did not wish to introduce the part of the letter that the defense construed as an offer to plead guilty but only the part constituting an admission on Norwood's part. The court admitted the statements pursuant to Wis. Stat. § 908.01(4)(b) (admission by a party opponent).

¶ 15. On appeal, Norwood for the first time cited a specific statute, namely, Wis. Stat. § 904.08 ("Compromise and offers to compromise"), in support of his argument. The State replied that this statute did not apply to criminal proceedings. It opined that another statute, Wis. Stat. § 904.10, might be relevant but asserted that Norwood had waived the right to invoke it because he had not raised the issue. Section 904.10 reads:

904.10 Offer to plead guilty; no contest; withdrawn plea of guilty. Evidence of a plea of guilty, later withdrawn, or a plea of no contest, or of an offer to the court or prosecuting attorney to plead guilty or no contest to the crime charged or any other crime . . . is not admissible in any civil or criminal proceeding against the person who made the plea or offer or one liable for the person's conduct. Evidence of statements made in court or to the prosecuting attorney in connection with any of the foregoing pleas or offers is not admissible.

Norwood did make an argument based on § 904.10 in his reply brief, and at oral argument, the State renewed its assertion that the issue was waived.

¶ 16. We acknowledge that the trial court never had before it any specific statute, so we are sympathetic to the State's contention. See State v. Agnello, 226 Wis. 2d 164, 172-73, 593 N.W.2d 427 (1999) (trial counsel must lodge an adequate objection in the trial court to preserve the issue for appeal so that both parties and the trial court have an opportunity to address disputed issues); State v. Mechtel, 176 Wis. 2d 87, 100, 499 N.W.2d 662 (1993) ("We do not generally address arguments raised for the first time in reply briefs."). Nonetheless, we have grave reservations about applying waiver to this case.

¶ 17. First, at the very least, trial counsel's objection should have led the court to Wis. Stat. § 904.08, which in turn would have brought Wis. Stat. § 904.10 to the court's attention. Counsel used the phrase "offer to compromise" in framing her objection, and § 904.08 contains virtually identical language. See State v. Corey J.G., 215 Wis. 2d 395, 407 & n.7, 572 N.W.2d 845 (1998) (stating that although an objection must be sufficiently specific to apprise the trial court of the grounds on which it is based, it is not necessary for counsel to cite the precise statutory section at issue). Section 904.10 lies on the facing page to this statute directly in the reader's field of vision in the current version of our statutes. Moreover, § 904.10 is directly on point. It categorically mandates the exclusion of plea offers. See State v. Mason, 132 Wis. 2d 427, 432-33, 393 N.W.2d 102 (Ct. App. 1986) (holding that "is not admissible" language in § 904.10 intended a prohibition "for any purpose"). Under the circumstances, § 904.10 was simply too conspicuous not to notice.

¶ 18. Second, one could reasonably conclude that Norwood's trial counsel did adequately preserve an objection based on Wis. Stat. § 904.10. Although it may not have been technically correct to characterize Norwood's letter as an "offer of settlement," counsel appears to have used the term loosely to refer to the ultimate disposition of a case. One could reasonably construe the tenor of the objection to be that, read as a whole, Norwood's letter was an offer to plead out to a Class B felony and that one could not feasibly sever the portion the State wished to introduce. If this understanding of counsel's objection is correct, then § 904.10 is, again, right on point.

¶ 19. Third, if we apply waiver to this case, Nor-wood would probably have grounds to claim ineffective assistance of counsel. Counsel performs ineffectively when his or her performance is deficient and prejudices the client's defense. State v. Pitsch, 124 Wis. 2d 628, 633, 369 N.W.2d 711 (1985). If counsel correctly concluded that Norwood's statements were an integral part of an offer to dispose of the case via a plea, then Wis. Stat. § 904.10 is dispositive on the issue of the letter's admissibility. Effective counsel would have been well aware of this authority. With respect to prejudice, the defendant must show that but for counsel's unprofessional errors, the result would have been different. Pitsch, 124 Wis. 2d at 642. In the portion of Norwood's letter presented to the jury, Norwood unequivocally incriminated himself and accepted responsibility for causing Angelia and her family's suffering, apologizing for "what I've caused to happen." (Emphasis added). This admission was explosive evidence of guilt, and ordinarily we would be hard-pressed to conclude that the jury would have reached the same verdict had it not heard this statement. For all these reasons, we reach the merits.

¶ 20. We agree with Norwood that Wis. Stat. § 904.10 prohibited the use of statements from his correspondence to the court. Norwood stated that he wanted to avoid trial. Nothing in the record indicates that the State was amenable to dismissing the case. That fact left Norwood with two choices: plead or go to trial. Obviously, the only way he could avoid trial was to enter a plea. An offer to plead guilty or no contest was therefore implicit in the admitted statements. Moreover, we must consider the excised portion in context. The part immediately preceding the part presented to the jury reads, "I don't want to continue with the coming proceeding. I request that you sentence me for a class B felony, in whatever degree you wish, probation, stayed sentence or whatever you think fair." Further, Norwood asked to be confined to a facility where he could get mental health treatment. We construe the letter as a whole as an offer to plead and conclude that any incriminating statements in the letter were integrally intertwined with this offer. We cannot feasibly separate a defendant's expressed willingness to enter a plea agreement from his or her reasons for wanting to do so.

¶ 21. We reject the trial court's rationale that Norwood's statements could come in as party admissions. Wisconsin Stat. § 908.01(4)(b) deals with admissions by a party as a general rule. Admissions incidental to an offer to plead, however, are a special kind of party admission: they are impossible to segregate from the offer itself because the offer is implicit in the reasons advanced therefor. Wisconsin Stat. § 904.10 trumps § 908.01(4)(b) because it excludes only this particular category of party admissions and therefore is more specialized than the latter statute. See City of Milwaukee v. Kilgore, 193 Wis. 2d 168, 185, 532 N.W.2d 690 (1995) (a specific statute takes precedence over a more general one).

¶ 22. The fact that a court improperly admitted evidence it should have kept out, however, does not by itself justify reversal. Wis. Stat. § 805.18(1) (error must affect substantial rights of party seeking reversal). Here, we are convinced that the court's error was harmless. In our view, the precise standard for harmless error is still in flux. See State v. Hale, 2005 WI 7, ¶¶ 60 & n.9, 277 Wis. 2d 593, 691 N.W.2d 637 (concluding majority's "harmless beyond a reasonable doubt" test is equivalent to formulation in prior cases); id., ¶¶ 86-89 (Wilcox, J., concurring) (concluding otherwise); id.,

(Abrahamson, C.J.,

¶ 79. concurring) ("[T]he doctrine of harmless error is a work in progress."). Regardless of what standard we use, however, the result is the same. We again acknowledge that Norwood unequivocally incriminated himself and that his admissions were devastating evidence against him. We further recognize that the jury almost certainly considered these statements. Indeed, it specifically asked the court if it could have copies of the statements during deliberations. Nonetheless, this damning evidence merely duplicated other overwhelming evidence of guilt.

¶ 23. The jury heard evidence that Norwood was buttoning his pants and putting his belt back on when David and his friend entered the home, that Norwood apologized at the scene instead of disclaiming guilt, and that after the incident, he took off for California with his belongings and nearly all of his money. Most catastrophic of all for Norwood's defense, he admitted on the stand that he had put his hand in the child's pants and touched her vagina. We quote the following excerpt from cross-examination:

Q. So you didn't put your hand inside [Angelia's] pants?
A. That was an accident.
Q. Oh, so you did put your hand inside her pants, but you're saying it was an accident.
A. What you're trying to do is trying to confuse me. And I've already testified, okay, that I accidentally put my hand in her pants. And I didn't rub her vagina or pubic area or whatever for any . .. gratification whatsoever.
Q. So you did touch her on the vagina.
A. And so — But when I say this, okay, this was an accident. I didn't mean that to occur. I wasn't trying to get any satisfaction from her, no gratification at all.
Q. Where did you touch her?
A. I touched her vagina and I'm sorry.
Q. Now — And you're saying it was an accident that you put your hand down inside her pants and touched her on the vagina?
A. Yes.

We frankly do not see how any reasonable jury would have believed Norwood's story that he "accidentally" put his hand in a child's pants and touched her vagina. His on-the-stand, virtually Perry Mason-style confession, alone or combined with the other circumstantial evidence of guilt, would have sealed Norwood's fate even if the statements from the letter had never been introduced.

"Other Acts" Evidence

¶ 24. Norwood next complains that the testimony of Trina O. unfairly prejudiced him. He concedes that this "other acts" evidence was relevant and offered for a proper purpose but objects to the manner in which it was introduced on two grounds. First, he maintains that the timing of Trina's testimony was unfairly prejudicial because she was the State's first witness. Nor-wood asserts that this order of presentation inflamed the jury against him from the very beginning of the proceeding by painting him as "a bad man, a criminal, a child molester." Moreover, he posits that presenting Trina's testimony first may have confused the jury as to which female was the alleged victim.

¶ 25. We disagree with both contentions. Nor-wood cites no authority for the proposition that otherwise admissible evidence is rendered unfairly prejudicial by the timing of its presentation, and we know of none. Further, the order of presentation did not obfuscate the identity of the victim. During opening statements, the State clearly identified and described an eight-year-old victim of a sexual assault that occurred several months earlier while Norwood was babysitting her. No reasonable jury would have mistaken Trina, an adult woman, for Angelia. Moreover, the State clearly apprised the jury that Trina was not present on the night in question.

¶ 26. Aside from the timing of Trina's testimony, Norwood objects to the fact that she testified at all, asserting that the State could have presented the case without using live testimony and instead simply introduced the judgment of conviction or entered a stipulation that the prior sexual assault of Trina had occurred. We deem this argument waived because trial counsel never objected to the form in which the "other acts" evidence came in.

¶ 27. Norwood argues in the alternative that if trial counsel failed to properly object, she provided ineffective assistance of counsel. Even if we assume that counsel's performance was deficient, Norwood cannot demonstrate that counsel's failure to object prejudiced his defense. As with the letter, we conclude that Norwood's admission on the stand, combined with other evidence of his guilt, would have led the jury to convict Norwood even if Trina had never testified.

¶ 28. We affirm the judgment of conviction and the order denying postconviction relief. Norwood waived his opportunity to substitute the judge because he did not make his request until proceedings had started. Although the court should not have admitted any statements from Norwood's letter to the court— because they were an integral part of his offer to plead out — the error was harmless in light of other explosive evidence of guilt. Norwood also has no complaint about the form or order of presentation of the "other acts" evidence. He waived his objection as to form, and we find nothing prejudicial about the timing of Trina's testimony.

By the Court. — Judgment and order affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Although the State does not argue on appeal that the offer to plead is severable, the prosecutor clearly framed the issue that way at trial when he stated that he did not intend to offer the statements that Norwood construed as an offer to plead guilty. We have addressed the issue because it was clearly before the trial court.

       The parties devoted the majority of their briefs and oral arguments to the admissibility of portions of the letter pursuant to Wis. Stat. § 904.08. We need not address this issue, however, given that our analysis under Wis. Stat. § 904.10 is dispositive. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (we need not discuss alternative grounds where one suffices).


source: Caselaw Access Project

author: ANDERSON, J.

license: Public Domain

text:
    In re the Marriage of: Danny B. Noble, Petitioner-Respondent, v. Deborah P. Noble, Respondent-Appellant.

    Court of Appeals

      No. 2004AP2933.

      Submitted on briefs August 10, 2005.

      Decided September 21, 2005.

    2005 WI App 227
    (Also reported in 706 N.W.2d 166.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Frances H. Martin of Bird, Martin & Salomon, S.C., Milwaukee.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Peter J. Ludwig, Burlington.
    Before Brown, Nettesheim and Anderson, JJ.

       Petition to review denied 1-20-06.

   ANDERSON, J.

¶ 1. This appeal concerns the trial court's division of property in this divorce action between Deborah P and Danny B. Noble. Danny and his brother, Dale Noble, are equal partners in a farming business organized as a partnership. During the 1990s, Dale and his wife acquired and titled in their own names three properties the partnership uses for farming. Deborah maintains that the trial court erred in excluding the value of the properties from the marital estate because Danny committed marital waste with regard to these properties. She points out that Danny admitted that Dale and his wife acquired the properties and titled them in their own names for the express purpose of keeping the properties out of the marital estate in the event she and Danny divorced. Deborah claims that the use of partnership funds to purchase the properties improperly dissipated the value of the marital estate. She also challenges the trial court's valuation of real estate included in the marital estate.

¶ 2. We hold that the trial court properly excluded from the marital estate the value of the three properties at issue. In short, the law does not require a party to a prospective divorce to take advantage of an opportunity to acquire property that would increase the value of the marital estate, and the use of partnership funds to finance the purchase of the properties did not improperly dissipate the value of the marital estate. We further hold that the trial court did not err in adopting Danny's expert's valuation of the real estate. The court simply made a credibility determination with which we cannot quarrel. We affirm the judgment of the trial court.

BACKGROUND

¶ 3. Deborah and Danny were married in November 1982. Danny originally filed a petition for divorce in February 1993, but the petition was dismissed later that year. Danny filed the petition for divorce in this appeal on November 6, 2002. The trial was held in March 2004. Although the trial court considered numerous issues at trial, only the two questions concerning the property division are up for our review. We limit our recitation of the facts accordingly.

¶ 4. We first relate the facts that pertain to Deborah's claim that Danny committed marital waste. The partnership, Noble Grain Farms, was organized on January 1, 1976. The partnership originally included Willard Noble, the Noble brothers' father, but he retired in 1991. Dale and Danny are now equal partners in the partnership.

¶ 5. The partnership consists of equipment, inventory, stock and good will and derives its income primarily from the sale of grain. The partnership itself does not own any land. Willard and his wife, Danny and Deborah, and Dale and his wife own several of the properties in one-third shares; Danny and Dale own one property in equal shares; and Dale and his wife own three properties in their names alone. The partnership rents the remaining land it farms.

¶ 6. Prior to the purchase of the three properties owned by Dale and his wife, if Danny and Dale wished to acquire property for the partnership to farm, Danny and Dale would withdraw partnership funds and purchase the property. According to Danny, the properties would then be titled in Willard's, Danny's and Dale's names.

¶ 7. Between 1994 and 1999, Dale and his wife purchased the three properties in question for partnership use and titled them in their names only. These properties are known as the Spriggs, Raboine and Hegemann properties.

¶ 8. Danny testified that when he and Dale deviated from their established practice of having properties purchased for partnership purposes titled in both their names, he had it "in the back of [his] mind" "to keep [the properties] out of [Deborah's] name in the event of divorce." According to Danny, "[T]hings were not going well in my marriage."

¶ 9. However, Danny also explained that one of the properties, the Spriggs property, was made available for purchase only to Spriggs family members. Dale and his wife were able to acquire the property because his wife is related to the Spriggs family. He further stated that he was also concerned about Deborah's erratic behavior and was worried that she would interfere with the acquisition of the properties. He noted that the partnership had already been renting two of the properties (the Raboine and Hegemann properties), which were also adjacent to properties the partnership farmed. As Danny testified, "The farm partnership needs land to create income."

¶ 10. Partnership assets were used to finance the purchases of the three properties. A ledger balance was then opened on the partnership books reflecting the amount Dale and his wife owed the partnership. Rather than have the partnership pay Dale and his wife rent for the use of the property, an amount equivalent to the value of the rent was forgiven on the obligation Dale and his wife owed to the partnership each year. Apparently, this financing arrangement had not been used by the partnership before.

¶ 11. In its oral decision, the trial court rejected Deborah's notion that these facts demonstrated that Danny had engaged in some kind of misconduct warranting the inclusion in the marital estate of the value of the three properties. The court noted that one of the properties "was not available to the general public, and it was only by virtue of that family relationship that Dale and [his wife] were able to purchase the property at $1,400 an acre." The court observed that Deborah was not being cooperative in purchasing additional property and that "Dale did not want to risk losing the property and given the fact that they were renting acreage adjacent to the property, he purchased it in his own name." The court further noted that while Dale and his wife borrowed money from the partnership in order to pay for the property, they repayed the partnership "by way of rental income":

The land is farmed by the partnership, a fair rental value was calculated based upon what the partnership was paying for other similar rented property, and that was the amount that was credited for the debt every year. Every year the ledger shows that the amount of the loan is decreased by the fair rental value. I found nothing wrong, nothing sinister about that practice; in fact... the testimony was undisputed that the partnership would not have made it if they would have had to actually pay out money for that rent.

In summing up its conclusion, the court commented that the decision to title the property in the names of Dale and his wife was "nothing other than a sound business decision." The trial court accounted for the outstanding obligation Dale and his wife owed as of the date of divorce, which the court called an account receivable, in its property division.

¶ 12. We next turn to the facts that pertain to Deborah's claim that the trial court erroneously relied on Danny's expert's valuation of certain real estate. Danny's expert, Robert Dirksmeyer, used what he called the "use value" approach to valuing the real estate. Dirksmeyer defined "use value" as

the value of specific property for a specific use. This value concept is based on the productivity of an economic good. jJse value refers to the value that the real estate contributes to the enterprise of which it is part, without regard to highest or best use or the monetary amount that might be realized upon its sale.

He acknowledged that the "highest and best use" could be to develop the real estate or turn it into small hobby farms, but because Danny and Dale planned to continue to farm the land, he conducted his appraisal based on its use as "agricultural land." Using this method, Dirksm-eyer valued the land at an average of $3000 per acre, for a total value of $4,359,090. He testified that assuming the partnership was going to continue to farm the land, this value is what the parties could have obtained in an arms-length transaction with a prudent farmer.

¶ 13. Deborah's valuation expert, Arthur Liddi-coat, valued the land using a "market value" approach. Liddicoat defined "market value" as

the most probable price which the property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently, knowledgably and assuming the price is not affected by undue stimulus.

Using this valuation method, Liddicoat valued the land at an average of $5000 per acre, for a total value of $10,534,000. He testified that he reached this value viewing the land "in its configuration as farmland," but that he was "looking at agricultural land that city people are picking up as hobby farms."

¶ 14. After considering the testimony, the trial court issued an oral decision in which it rejected Liddicoat's valuation method as "flawed" and adopted Dirksmeyer's valuation of the properties because it "was far more credible." The court rejected Liddicoat's testimony that the land at issue was not farmland anymore, stating "The land has been used solely for farmland, solely for farming for at least the last 36 years, and there was absolutely no evidence in the record to indicate that it would be used for anything but farming for the foreseeable future." The court noted the inconsistencies in Liddicoat's testimony, recounting that Lid-dicoat had also testified that the land would continue to be used for agricultural purposes. The court further expressed concern that Liddicoat's analysis and compa-rables did not appropriately factor in the differences in zoning between the properties. The court also found "very troubling" the fact that Liddicoat was not familiar with an ordinance in the Town of Dover, where there was "a very significant amount of Noble acreage." According to the court, the ordinance put a moratorium on any development in the town "for a number of years."

DISCUSSION

Standard of Review

¶ 15. The determination of whether property is subject to division involves the application of a statute to uncontested facts, a question of law that we review independently. Waln v. Waln, 2005 WI App 54, ¶ 7, 280 Wis. 2d 253, 694 N.W.2d 452. Property division, however, is committed to the discretion of the trial court. Peerenboom v. Peerenboom, 147 Wis. 2d 547, 551, 433 N.W.2d 282 (Ct. App. 1988). We will uphold a property division if the court gave rational reasons for its decision and based its decision on facts in the record. Id. The valuation of a given asset, however, is a factual determination. See Siker v. Siker, 225 Wis. 2d 522, 532, 593 N.W.2d 830 (Ct. App. 1999). When reviewing fact finding, appellate courts search the record for evidence to support findings reached by the trial court, not for evidence to support findings the trial court could have reached but did not. Johnson v. Merta, 95 Wis. 2d 141, 154, 289 N.W.2d 813 (1980).

¶ 16. The weight and credibility to be given to testimony is uniquely within the province of the trial court. Siker, 225 Wis. 2d at 528. When two parties to a divorce present conflicting testimony concerning the value of property, the trial court's job is to determine the credibility of the witnesses, weigh the evidence, and resolve the dispute. See Schwartz v. Linders, 145 Wis. 2d 258, 265, 426 N.W.2d 97 (Ct. App. 1988). In such situations, the trial court is the ultimate arbiter of the credibility of the witnesses. Siker, 225 Wis. 2d at 528.

Marital Waste

¶ 17. Deborah asserts that Danny committed marital waste and breached his duty of good faith with regard to marital property. She complains that the acquisition and titling of the three properties in the names of Dale and his wife was a subterfuge aimed at keeping the properties out of the marital estate. She further complains that because partnership funds were used to purchase the properties, the value of the marital estate was improperly dissipated. Deborah points out that Danny's share of the partnership funds are a part of the marital estate. She claims that the remedy for Danny's alleged dissipation of the marital estate and for his breach of his duty of good faith is to include the value of the three properties in the marital estate for purposes of property division.

¶ 18. Deborah's claim for a breach of the duty of good faith rests to some degree upon Wis. Stat. § 766.15 (2003-04), which provides in part, "Each spouse shall act in good faith with respect to the other spouse in matters involving marital property or other property of the other spouse." Wisconsin Stat. § 766.70 sets forth the remedies for a breach of the duty. However, once the divorce action is filed, the § 766.15 cause of action and its attendant remedy are no longer available. Gardner v. Gardner, 175 Wis. 2d 420, 427, 499 N.W.2d 266 (Ct. App. 1993). Instead, the trial court may consider "each party's efforts to preserve marital assets and to require a party to pay the debts caused by the squandering of the parties' assets, or the intentional or neglectful destruction of property," see Anstutz v. Anstutz, 112 Wis. 2d 10, 13, 331 N.W.2d 844 (Ct. App. 1983) (citing Wis. Stat. § 767.255(3)), and may include in the marital estate the value of the assets which would have been in the marital estate but for the waste. See Wis. Stat. § 767.275. We therefore address Deborah's request that the court include the three properties in the value of the marital estate within the context of §§ 767.255(3) and 767.275 and the case law interpreting those two statutory provisions.

¶ 19. We conclude the trial court properly excluded the value of the three properties from the marital estate. First, it does not matter that Danny refused to purchase the properties, in large part for the purpose of keeping them out of the marital estate. The statutes are intended to prevent the squandering or destruction of marital property, or in other words, the unjustified depletion of marital assets. See Wis. Stat. § 767.275 (speaking in terms of property being "transferred for inadequate consideration" and "wasted"); Anstutz, 112 Wis. 2d at 12-13 (holding that Wis. Stat. § 767.255(3) prohibits "the squandering of the parties' assets, or the intentional or neglectful destruction of property" or the "unjustified depletion of marital assets"). Neither § 767.255(3) nor § 767.275 require a party to a pending divorce to take advantage of an opportunity to acquire property that would increase the value of the marital estate. This is so even if the opportunity represents a good deal. In fact, divorce attorneys routinely and wisely advise their clients not to purchase property for the benefit of the martial estate in the face of a prospective divorce. We find nothing amiss with this practice.

¶ 20. The cases Deborah cites are of little assistance to her. In none of the cases were the courts concerned, as we are here, with whether the failure of a party to a pending divorce to acquire new assets to enhance the value of the marital estate for purposes of property division constitutes marital waste. See Gardner, 175 Wis. 2d at 424 & n. 1 (dismissing tort claim of one spouse who argued that the other had made intentional misrepresentations and wrongful transfers of marital assets); Anstutz, 112 Wis. 2d at 13-14 (remanding for trial court to consider whether one spouse had depleted the marital assets because of his squandering and neglect and noting the spouse's "problem with alcohol"); Zabel v. Zabel, 210 Wis. 2d 336, 338, 344, 565 N.W.2d 240 (Ct. App. 1997) (holding that the mother of a husband could be joined as a third party in the divorce action where wife alleged that real property titled in the mother's name was marital property subject to division, but stating that the parties were free to litigate the question of whether the real property at issue was in fact marital property); Derr v. Derr, 2005 WI App 63, ¶¶ 63, 67, 280 Wis. 2d 681, 696 N.W.2d 170 (concluding that one spouse had "wasted" marital property when he supposedly lost $45,000 while engaging in day-trading); Antone v. Antone, 645 N.W.2d 96, 101-03 (Minn. 2002) (holding that the formula used in Minnesota for determining the marital and nonmarital interests in property acquired during the marriage with nonmarital funds could also be used to determine marital and nonmarital interests in property acquired during the marriage with a nonmarital down payment, as well as appreciation of property acquired before the marriage).

¶ 21. Second, the fact that Danny permitted partnership funds to be used to finance the purchase by Dale and his wife of the three proprieties does not constitute the waste, squandering, destruction, or unjustified depletion of marital assets under the facts of this case. As the trial court noted, the purchase by Dale and his wife of the properties with the backing of partnership funds was simply a "sound business decision."

¶ 22. The record supports the trial court's findings that Deborah had not been cooperative in the purchase of additional property and Danny and Dale did not want to risk losing the properties, given that they were farming acreage adjacent to two of the three properties. In addition, the record shows that the other of the three properties was made available exclusively to members of the family, of which only Dale's wife was one.

¶ 23. The record further supports the trial court's conclusion that there was "nothing wrong, nothing sinister" about the financing arrangement in this case. A ledger balance was opened on the partnership books reflecting the amount Dale and his wife owed the partnership. Then, rather than have the partnership pay Dale and his wife rent for the use of the properties, an amount equivalent to the value of the rent was forgiven on the obligation Dale and his wife owed to the partnership each year. Deborah characterizes the buy-down payments as "phantom rent." However, as Danny points out, the result would not have been any different had the partnership actually paid rent to Dale and his wife because Dale and his wife would have simply turned around and paid that rent right back to the partnership to satisfy their obligation.

¶ 24. Importantly, the outstanding obligation Dale and his wife owed as of the date of divorce was factored into the trial court's valuation of the partnership as an account receivable. We find no evidence that these buy-down payments were at all greater than the rental value of the properties, that the partnership records concerning the transactions are inaccurate, or that Dale and his wife received a disproportionate benefit under the arrangement. Given these circumstances, we hold that the marital estate was not improperly dissipated.

¶ 25. In sum, we conclude that the trial court properly excluded the value of the three properties from its valuation of the marital estate. The law does not require a party to a pending divorce to take advantage of opportunities to acquire properties that will increase the value of the marital estate. We further hold that the purchase by Dale and his wife of the three properties with the backing of partnership funds did not improperly dissipate the value of the marital estate.

Expert Testimony

¶ 26. Deborah next challenges the trial court's valuation of certain real estate Danny and Dale own. She contends that the trial court's adoption of the testimony and opinion of Danny's expert over her own expert was an error of law. She bases this argument on Danny's expert's testimony that he used the "use value" approach to the valuation of the property instead of the "market value" approach her own expert used.

¶ 27. The trial court rejected Deborah's expert's valuation of the real estate on credibility grounds, calling Liddicoat's methodology and analysis "flawed." The court gave reasons for its conclusion based upon the evidence. The court highlighted the inconsistencies in Liddicoat's testimony, the inherent problems with the comparables Liddicoat used and Liddicoat's failure to properly account for town zoning codes and town ordinances. The court also rejected as contrary to the plain evidence Liddicoat's conclusion that the land in question was no longer farmland. Because the trial court discounted Liddicoat's testimony and opinion, the only remaining evidence in the record concerning the value of the real estate was that of Danny's valuation expert. The court found his testimony "far more credible" and therefore used his valuation in the property division. The trial court is the ultimate and final arbiter of the credibility of witnesses, and we must accept the trial court's credibility determination. See Kimberly Area Sch. Dist. v. Zdanovec, 222 Wis. 2d 27, 50, 586 N.W.2d 41 (Ct. App. 1998).

¶ 28. The parties devote considerable attention in their briefs to their conflicting understandings of the appropriate method of valuation for the real estate in question. In light of the court's credibility determinations, we conclude that it is unnecessary to resolve their dispute. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983). Therefore, we affirm the trial court's valuation of the real estate.

By the Court. — Judgment affirmed.

       We note the record offers several different spellings for the Hegemann property. We chose the same spelling that can be found in the partnership's bookkeeping records.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.


author: HIGGINBOTHAM, J.

text:
    Sentry Insurance a mutual company, Plaintiff-Third-Party Plaintiff-Appellant, v. Jay Schrank and Deborah Roman-Schrank, Defendants-Respondents, Kevin Castona and ABC Insurance Company, Third-Party Defendants-Respondents.
    Court of Appeals

      No. 2004AP639.

      Submitted on briefs November 8, 2004.

      Decided September 22, 2005.

    2005 WI App 235
    (Also reported in 707 N.W.2d 276.)

      On behalf of the plaintiff-third-party plaintiff-appellant, the cause was submitted on the briefs of Robert F. Johnson and Colleen M. Fleming of Cook & Franke S.C., Milwaukee.
    On behalf of the defendants-respondents, the cause was submitted on the brief of Russell T Golla of Anderson, O'Brien, Bertz, Skrenes & Golla, Stevens Point.
    Before Vergeront, Deininger and Higginbotham, JJ.

       Petition to review denied 12-14-05.

   HIGGINBOTHAM, J.

¶ 1. Sentiy Insurance, a mutual company, appeals a non-final order of the circuit court awarding summary judgment to Jay Schrank and Deborah Roman-Schrank in this insurance coverage dispute. Jay Schrank was injured by Kevin Castona after Schrank took Castona's truck keys away from him in an effort to prevent Castona from driving under the influence of alcohol. Schrank sought benefits under two automobile insurance policies provided by Sentry. The circuit court determined these policies provided uninsured motorist (UM) benefits for Schrank's injuries. Because there is no causal connection between Castona's "use" of his motor vehicle and Schrank's injuries, we conclude Sentry's policies provide no coverage. Accordingly, we reverse.

FACTS

¶ 2. The facts are essentially undisputed. On February 17, 2001, Schrank and his business partner, Brian Page, visited a local tavern in Plover, Wisconsin. While at the tavern, Schrank encountered Castona, an underage acquaintance of Schrank's, who arrived at the tavern on a snowmobile. Schrank determined Castona was extremely intoxicated and unable to drive. Schrank and Page drove Castona home.

¶ 3. After arriving at Castona's house, Schrank escorted Castona to the front door. Rather than enter his house, Castona abruptly turned and walked toward his pickup truck, which was parked on the lawn. Castona entered the truck, put the keys in the ignition and appeared to start the truck, stating that he wanted to drive either to his mother's or his girlfriend's house. Schrank went over to Castona's truck and, as Castoná sat in the vehicle, reached inside the driver's door across Castona and removed the keys, telling Castona he wasn't going anywhere because he was too drunk to drive.

¶ 4. After taking the keys, Schrank backed away from the vehicle. Castona exited the truck and approached Schrank for the keys. Keys in hand, Schrank continued to back away as Castona attempted to recover the truck keys. Schrank recalled that he had backed up approximately ten steps or feet from the driver's side door when Castona jumped toward him to grab the keys. Schrank unsuccessfully attempted to hold Castona away with his left hand when Castona bumped him, causing Schrank to fall on the ice, severely injuring his ankle.

¶ 5. Castona's pickup truck was uninsured. Schrank sought insurance coverage from Sentry for the injuries sustained during the scuffle under his uninsured motorist coverage. Schrank's uninsured motorist claims were made pursuant to two policies of insurance: (1) A Plain Talk car policy issued by Sentry to Schrank and his wife Deborah Roman-Schrank (the personal auto policy) and (2) a commercial auto policy issued to Schrank's business, Specialized Computer Systems, Inc.

¶ 6. Sentry denied coverage and filed this action seeking a declaration that Schrank's injuries did not arise out of the ownership, maintenance or use of an uninsured motor vehicle. The Schranks filed a counterclaim seeking a declaration of coverage and damages for injuries sustained by Schrank during the scuffle. Both parties moved for summary judgment.

¶ 7. The circuit court denied Sentry's motion and granted the Schranks' motion, determining both Sentry policies provided uninsured motorist benefits to Schrank. We granted Sentry leave to file this interlocutory appeal of the circuit court's non-final order.

STANDARD OF REVIEW

¶ 8. We review summary judgment de novo, applying the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). We first determine whether the complaint states a claim. Id. If the complaint states a claim, we then determine whether there is a material factual dispute and whether the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2) (2003-04); Green Spring Farms, 136 Wis. 2d at 315.

¶ 9. This case also requires us to interpret the terms of an insurance policy. The interpretation of an insurance policy is a question of law, which we review de novo. State Farm Mut. Auto. Ins. Co. v. Langridge, 2004 WI 113, ¶ 13, 275 Wis. 2d 35, 683 N.W.2d 75. We construe insurance policies to give effect to the intent of the parties. Id. To do so, we give the words in the insurance policy their common and ordinary meaning, that is, the meaning a reasonable person in the position of the insured would have understood the words to mean. Id., ¶ 14.

DISCUSSION

¶ 10. The Schranks seek UM coverage under both the personal auto policy and the commercial auto policy. The personal auto policy provides, in relevant part:

We promise to pay damages ... the owner or operator of an uninsured motor vehicle is legally obligated to pay because of bodily injury you suffer in a car accident while occupying a car or, as a pedestrian, as a result of having been struck by an uninsured motor vehicle.

The personal auto policy defines "car accident" as "an unexpected and unintended event that causes bodily injury or property damage and arises out of the ownership, maintenance, or use of a car or other motor vehicleUnder the policy occupying means: "in, on or getting in or out of."

¶ 11. The commercial auto policy, which lists the vehicle Schrank was driving on February 17, 2001 as a "covered auto," provides, in relevant part,

WE WILL PAY ALL SUMS THE 'INSURED' IS LEGALLY ENTITLED TO RECOVER AS COMPENSATORY DAMAGES FROM THE OWNER OR DRIVER OF AN 'UNINSURED MOTOR VEHICLE'. THE DAMAGES MUST RESULT FROM 'BODILY INJURY SUSTAINED BY THE 'INSURED' CAUSED BY AN 'ACCIDENT'. THE OWNER'S OR DRIVER'S LIABILITY FOR THESE DAMAGES MUST RESULT FROM THE OWNERSHIR MAINTENANCE OR USE OF THE 'UNINSURED MOTOR VEHICLE'.

The commercial auto policy defines "accident" as "continuous or repeated exposure to the same conditions resulting in ’bodily injury’ or ’property damage.’" The policy does not define "use."

¶ 12. Wisconsin Stat. § 632.32(4) mandates uninsured motorist coverage for the protection of persons legally entitled to recover damages from owners or operators of uninsured motor vehicles resulting from liability imposed by law for bodily injury arising out of the ownership, maintenance or use of a motor vehicle. See Trampf v. Prudential Prop. & Cas. Co., 199 Wis. 2d 380, 384-86, 544 N.W.2d 596 (Ct. App. 1996). The UM coverage language at issue here is standard in many automobile liability policies. Our supreme court held that "[t]he words 'arising out of the use' are very broad, general and comprehensive terms," which should he broadly construed so as to maximize coverage to the insured. Tomlin v. State Farm Mut. Auto. Liab. Ins. Co., 95 Wis. 2d 215, 225, 290 N.W.2d 285 (1980). There is no UM coverage, however, unless there is a causal connection between the accident producing the injury and the inherent "use" of the vehicle. See id.

¶ 13. Thus, the dispositive inquiry is whether there is a causal connection between the scuffle that caused Schrank's injuries and the inherent "use" of Castona's uninsured truck. We conclude there is not.

¶ 14. Sentry argues Schrank's injuries did not arise out of the ownership, maintenance or use of Castona's pickup truck because Schrank's injuries were not causally related to the inherent use of the truck. The Schranks counter that it is

reasonable to expect that concerned and responsible friends will remove the keys from the ignition of the vehicles their inebriated companions are attempting to drive. It can also be reasonably expected that a drunken buddy might not appreciate the favor and in trying to retrieve the keys inadvertently injure the good Samaritan.

The Schranks contend that if the drunk driver's conduct is directed at retrieving the vehicle keys, as opposed to injuring the good Samaritan, then the drunk driver's conduct clearly arises out of the use and operation of the vehicle.

¶ 15. We first note it can be argued that inserting the truck key into the ignition with the intention of starting the truck constitutes an inherent use of the truck. The circuit court so concluded. The obvious inherent use of the truck under this scenario is to turn on the truck for the purpose of driving it. This use is consistent with Castona's claim that he intended to drive to his mother's or girlfriend's house that night. Assuming this is so, the remaining question is whether there was a causal connection between Castona's actions that caused Schrank's injuries and Castona's effort to start the truck for the purpose of transporting himself to his mother's or girlfriend's residence.

¶ 16. We conclude Schrank's injuries did not arise out of the use of Castona's truck. Schrank was injured as a result of a scuffle with Castona over the truck keys; the scuffle occurred some distance away from the truck. We acknowledge the summary judgment record shows that Castona was in the truck when Schrank removed the keys from the truck's ignition. However, any connection between being in the truck when the keys were removed and Schrank's injuries caused by the scuffle is too attenuated. Once Schrank pulled the keys out of the truck's ignition, he backed away. Castona exited the truck and pursued Schrank. In the course of attempting to retrieve the keys from Schrank, Castona bumped Schrank, causing Schrank to lose his balance on the slick, icy ground. Castona was not using the truck for any purpose during the scuffle or when he caused Schrank to fall and injure his ankle. The truck was simply parked on the lawn in front of Castona's house with the motor turned off. Castona's "use" of the truck in no way contributed to Schrank's injuries. In short, there is no causal connection between Schrank's injuries and Castona's "use" of his truck.

¶ 17. Therefore we conclude neither Sentry policy covered Schrank’s injuries caused by Castona. Accordingly, we reverse the circuit court's summary judgment order against Sentry.

By the Court. — Order reversed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       The Schranks assert the personal auto policy violates Wis. Stat. § 632.32(6)(b)2.a. and Wis. Stat. § 632.32(5)(j) because it restricts UM coverage to individuals occupying a car or to individuals struck by an uninsured motor vehicle. The Schranks, however, believe that once the "offending" language is struck, the policy's remaining terms "dictate coverage." Sentry does not reply to this argument, apparently conceding that Schrank would be covered here if we find "use" by Castona, even though Schrank was neither occupying a car nor struck by the uninsured pickup truck.


author: DEININGER, J.

text:
    Susann M. Vander Wielen, Plaintiff-Appellant, v. Ronald E. Van Asten, Defendant-Respondent.
    Court of Appeals

      No. 2004AP1788.

      Submitted on briefs February 10, 2005.

      Decided September 22, 2005.

    2005 WI App 220
    (Also reported in 706 N.W.2d 123.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Douglas D. Hahn of Menu, Teetaert & Beisenstein, Ltd., Appleton.
    On behalf of the defendant-respondent, the cause was submitted on the brief of James R. Long of James R. Long Law Office, Appleton.
    Before Dykman, Vergeront and Deininger, JJ.
   DEININGER, J.

¶ 1. A landlord, Susann Vander Wielen, appeals a judgment that dismissed her claims against her former tenant, Ronald Van Asten, and awarded him $7,889.50 in attorney fees and costs. The landlord claims the trial court erred in determining that (1) the tenant was not a holdover, year-to-year tenant; (2) the landlord had accepted the tenant's surrender of the premises; and (3) the tenant, as the prevailing party, was entitled under the parties' lease to recover his reasonable attorney fees and costs.

¶ 2. We conclude, on the facts as found by the circuit court, the tenant became a holdover, year-to-year tenant when the landlord accepted his rent payments after the parties' lease expired. We also conclude, however, that the landlord accepted the surrender of the premises when she proposed to enter into a new lease with the tenant's successor, dealt exclusively with the successor and specified and accepted higher rent payments from the successor. Accordingly, the trial court did not err in dismissing the landlord's claims against the tenant for unpaid rent and other damages. Finally, because, under the terms of the parties' lease, the tenant was the "successful party" in this action commenced by the landlord "for the enforcement of the terms and provisions" of the lease, the court properly awarded the tenant his attorney fees and costs.

BACKGROUND

¶ 3. The circuit court, after conducting a bench trial, issued a written decision in which it made numerous factual findings. Our background summary is based largely on those findings, supplemented occasionally with specific evidence introduced by the parties at trial.

¶ 4. The landlord owns a commercial building in Appleton. She leased a portion of the building to the tenant for his laundry and dry cleaning business. The parties first entered into a commercial lease in 1991 and they extended it in 1997 through May 31, 2000. The most recent extension allowed for an additional extension if the parties could agree to it by March 1, 2000, but no extension was agreed to before that deadline. Instead, before the lease expired on May 31, the tenant informed the landlord that he was attempting to sell his business and did not wish to enter into another long-term extension of the lease. The tenant told the landlord that he wanted to stay only until he sold his business. The trial court found that "no agreement was expressly or otherwise entered into by the parties concerning [tenant's status as a holdover tenant."

¶ 5. The tenant continued to occupy the space through June and July of 2000, paying the rent called for in the expired lease for those two months, which the landlord accepted without comment. When the tenant's August rent payment was late, the landlord contacted him. The tenant informed the landlord that he had sold his business and that his successor would be paying the rent thereafter. The landlord sent the successor a copy of the existing lease and a proposed new lease on August 18, 2000. The proposed new lease was to begin in September 2000 for a five-year term at an increase in rent over what the tenant had been paying. The successor did not sign the new lease, but he did pay the landlord the higher rent specified in the proposed new lease from September 2000 through January 2001. The trial court found that the landlord "accepted rent from and dealt exclusively with [the successor] from September 2000 until January 2001."

¶ 6. The successor notified the landlord that he planned to vacate the premises on November 30, 2000. The landlord responded with a letter dated November 16, 2000, informing the successor that "you are responsible until May 31, 2001 for rent of this unit." The successor ultimately vacated on January 19, 2001, having paid rent through the end of January. The trial court found that the premises were left "in reasonable condition," with only "the normal wear and tear to be reasonably expected" during ten years of occupancy by a laundry and dry-cleaning business. Rent for February 2001 and subsequent months remained unpaid as of the time of trial.

¶ 7. The trial court found that the tenant "was not given notice of any problems until after [the successor] had moved out." The landlord's first communication to the tenant after August 2000 was a letter dated February 5, 2001, from the landlord's counsel. The letter informed the tenant that the landlord deemed him a holdover tenant on a year-to-year basis under Wis. Stat. § 704.25(2)(a) (2003-04), and that he was therefore liable for unpaid rent through May 31, 2001, plus other costs incurred following the successor's vacation of the leased premises. The letter also informed the tenant that the landlord had offered the successor a lease, "but he refused to sign it. Had he signed a new lease with us, [the landlord] would have released you from your existing lease."

¶ 8. When the tenant refused to pay the amounts demanded, the landlord commenced this action against the tenant. Her complaint refers to and attaches the original lease between the parties and its extensions through May 31, 2000. The complaint seeks, in addition to unpaid rent and other costs and damages, the landlord's "actual reasonable attorneys fees, costs and expenses of collection up to and through this litigation, per Paragraph 20' of the Lease." Following the trial, the circuit court concluded in a written opinion that (1) the tenant did not become subject to a year-to-year tenancy after May 31, 2000; (2) the landlord had "accepted the surrender of the premises" by the tenant "and termination of his lease"; and (3) the tenant was entitled to recover his reasonable attorney fees and costs.

¶ 9. The court entered a judgment that dismissed the landlord's complaint and awarded the tenant $7,889.50 for his attorney fees and costs. The landlord appeals, claiming the circuit court erred in each of its three conclusions.

ANALYSIS

¶ 10. The landlord does not assert that any of the circuit court's factual findings are clearly erroneous. See Wis. Stat. § 805.17(2). Rather, her challenges are solely to the court's legal conclusions, which include the court's application of legal standards to the facts as found and its interpretations of the parties' lease and several provisions of Wis. Stat. ch. 704. We thus have before us only questions of law, which we decide de novo. See Kenyon v. Kenyon, 2004 WI 147, ¶ 11, 277 Wis. 2d 47, 690 N.W.2d 251 (application of a legal standard to undisputed facts); Deminsky v. Arlington Plastics Mach., 2003 WI 15, ¶ 15, 259 Wis. 2d 587, 657 N.W.2d 411 (contract interpretation); State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997) (statutory interpretation).

¶ 11. The landlord's first claim is that the circuit court erred in concluding that the tenant did not become a year-to-year holdover tenant following the termination of the parties' lease on May 31, 2000. Wisconsin Stat. § 704.25(2) (a) provides that "[i]f premises are leased for a year or longer primarily for other than private residential purposes, and the tenant holds over after expiration of the lease, the landlord may elect to hold the tenant on a year-to-year basis." Paragraph (c) of this subsection explains when the landlord's election occurs:

Acceptance of rent for any period after expiration of a lease or other conduct manifesting the landlord's intent to allow the tenant to remain in possession after the expiration date constitutes an election by the landlord under this section unless the landlord has already commenced proceedings to remove the tenant.

Section 704.25(2)(c). Finally, subsections (3) and (4) of the statute provide that, with certain exceptions, the "terms and conditions ... of the original lease" govern during a holdover tenancy, but the parties may agree in their lease or thereafter that § 704.25 does not apply to their relationship. See § 704.25(3) and (4).

¶ 12. We agree with the landlord that, when the plain language of Wis. Stat. § 704.25 is applied to the undisputed facts and those found by the trial court, no other conclusion is possible than that the tenant became a holdover year-to-year tenant when the landlord accepted his rent payment for the month of June 2000. See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110 ("[Statutory interpretation 'begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'" (citation omitted)). The parties' lease was of non-residential property for a term of more than one year, and nothing in the lease or extension agreements disavows the applicability of § 704.25. The trial court specifically found that, although the tenant informed the landlord of his intention to stay beyond May 31st only for so long as it took him to sell his business, the parties reached no agreement "expressly or otherwise" concerning the tenant's status as a holdover tenant. Thus, when the landlord, having not commenced proceedings to remove the tenant, accepted rent from him for June of 2000, that act constituted her election "to hold the tenant on a year-to-year basis." See Wis. Stat. § 704.25(2)(a) and (c).

¶ 13. The tenant argues, however, that the statute creates only a rebuttable presumption that the landlord elected to treat him as a tenant from year-to-year. He also asserts that the presumption may be rebutted " 'by proof of an express agreement for a month to month tenancy... or by other circumstances,' " quoting Rottman v. Bluebird Bakery, Inc., 3 Wis. 2d 309, 311, 88 N.W.2d 374 (1958). The landlord points out that Rottman and several other cases the tenant relies on predate the enactment of Wis. Stat. § 704.25(2)(c), which now specifies that the acceptance of rent "constitutes an election by the landlord" (emphasis added), not merely a rebuttable presumption that an election has occurred. Moreover, as we have noted, the trial court expressly found that the parties had no express or implied agreement for a month-to-month tenancy or any other terms regarding the tenant's holdover status. Based on the trial court's findings, the tenant had, at most, a unilateral expectation that he was bound only on a month-to-month basis, but one party's hopes or expectations do not avoid the effect of the statute — the agreement of both parties is required. See § 704.25(4).

¶ 14. The balance of the tenant's argument on this point suggests that the post-expiration acceptance of rent by a commercial landlord should be deemed to constitute an election to hold the tenant from year-to-year only if the landlord gives notice of the election to the tenant. We reject this suggestion because no such requirement may be found in the language of Wis. Stat. § 704.25.

¶ 15. Rather, we agree with the landlord that, absent contrary provisions in the parties' lease, Wis. Stat. § 704.25 requires a commercial landlord to choose among three courses of action when a tenant remains in possession of the leased premises after the expiration of a lease: (1) the landlord may commence an action to remove the tenant; (2) the landlord may reach an agreement with the tenant regarding the terms of the tenant's post-expiration occupancy; or (3) if neither of the first two have occurred, the landlord may accept rent from the tenant for the tenant's post-expiration occupancy, thereby creating a holdover tenancy whose duration is determined by the statute, in this case, year-to-year. In short, the statute allows the parties to an expiring lease to agree on terms for any post-expiration occupancy of the leased premises, but in the event they cannot or do not reach an agreement, it provides a bright-line rule to govern their relationship.

¶ 16. We conclude, therefore, upon the landlord's acceptance of the tenant's rent payment for June 2000, both parties were bound to a tenancy terminating on May 31, 2001, on the same terms and conditions as set forth in the expired lease. The existence of a one-year holdover tenancy does not mean, however, that the landlord could not subsequently accept a surrender of the premises from the tenant and release him from his obligations as a holdover tenant. The trial court concluded that a surrender and acceptance occurred, which conclusion the landlord cites as the court's second reversible error. We conclude the trial court correctly determined that the landlord's actions during and after August 2000 constituted the landlord's acceptance of the tenant's surrender of the premises.

¶ 17. The landlord's arguments on the acceptance-of-surrender issue are largely premised on her reading of several provisions in Wxs. Stat. ch. 704, and, to a lesser extent, on her claim that the record lacks evidence of an unequivocal act on her part that clearly indicated an intent to accept the tenant's surrender of the premises. We address her statutory arguments first.

¶ 18. According to the landlord, Wis. Stat. § 704.19, when applied to the facts as found by the trial court, compels a conclusion that the year-to-year tenancy could not have terminated earlier than May 31, 2001. She contends that, because the tenant did not inform her of his sale of his business until after it had occurred and thereafter failed to pay rent, the tenant effectively gave notice of his intent to terminate the holdover tenancy in August 2000, which is when the landlord first learned of the tenant's "removal" from the premises. See § 704.19(6). The landlord next points to § 704.19(2)(b), which provides that a notice of termination given by either party to a year-to-year tenancy becomes effective only at the end of the rental year during which notice is given.

¶ 19. The flaw in the landlord's present argument, however, is that Wis. Stat. § 704.19 governs only the termination of a tenancy on actual or constructive notice by one of the parties. The statute, on its face, does not apply when "[t]ermination has been effected by a surrender of the premises." Section 704.19(2)(a)2. Whether a surrender of the premises was "effected" is precisely the point at issue in this case. If the landlord accepted the tenant's surrender of the premises in August 2000, the tenancy terminated then; if not, because we conclude that a year-to-year holdover tenancy existed, the tenant would indeed have been bound until May 31, 2001. In short, § 704.19 is of no assistance in resolving the present dispute.

¶ 20. The landlord next claims that Wis. Stat. § 704.29, properly interpreted, and applied to the present facts, also compels a conclusion that the landlord's dealings with the tenant's successor were nothing more than her attempt to discharge her obligation to re-rent the premises in mitigation of the tenant's damages. She notes that § 704.29(1) provides:

If a tenant unjustifiably removes from the premises prior to the effective date for termination of the tenant's tenancy and defaults in payment of rent,... the landlord can recover rent and damages except amounts which the landlord could mitigate in accordance with this section, unless the landlord has expressly agreed to accept a surrender of the premises and end the tenant's liability.

The landlord further relies on § 704.29(4), which provides that a landlord may "[r]erent[] the premises ... with rent applied against the damages caused by the original tenant and in reduction of rent accruing under the original lease." Section 704.29(4)(b). The landlord claims that this is precisely what she did when she permitted the tenant's successor to remain on the premises and accepted rent from him. She asserts that she has applied all of the rent she received from the successor to reduce the damages and unpaid rent she is seeking to collect from the tenant. According to the landlord, her dealings with the tenant's successor were both required and privileged acts in mitigation on her part, and her actions cannot therefore be used to "defeat the landlord's right to recover rent and damages and do not constitute an acceptance of surrender of the premises." Wis. Stat. § 704.29(4).

¶ 21. We agree with the landlord that whether the landlord's dealings with the tenant's successor were actions in mitigation or constituted her acceptance of the tenant's surrender of the premises is the dispositive issue in this litigation. Both the supreme court and this court have addressed the issue and, in so doing, both courts discussed the proper application of the provisions of Wis. Stat. § 704.29 on which the landlord relies. We thus turn to those discussions.

¶ 22. The commercial tenant in First Wisconsin Trust Co. v. L. Wiemann Co., 93 Wis. 2d 258, 286 N.W.2d 360 (1980), vacated leased premises some nine years prior to the end of the lease term. The tenant argued that the landlords had accepted the surrender of the premises when they sold the building several months after the tenant had vacated it. Id. at 270-71. The supreme court agreed, explaining that "[t]he act of selling the property in February, 1973, evidences a clear intent to make the election between accepting the surrender and terminating the lease, and entering and taking possession of the premises for the purpose of mitigating damages." Id. at 274. Even though the landlords maintained at the time of the sale that they intended to pursue the former tenant for breach of the lease, the court found this expression of intent to be inconsistent with the landlords' conduct in selling the building, concluding, essentially, that actions speak louder than words. Id. at 274.

¶ 23. Earlier in its analysis, the supreme court quoted from the same statute on which the present landlord relies, Wis. Stat. § 704.29(4), in support of its conclusion that the landlords in Wiemann had not accepted a surrender of the premises when they re-rented a portion of the premises prior to the sale. See id. at 272. The court explained that a landlord's re-renting of the premises is an "equivocal" act, which, standing alone, does not establish that the landlord has chosen either to accept surrender or to mitigate the tenant's damages. Id. " 'The right to elect which course he will pursue remains with the landlord until he makes his election by taking some step which clearly evidences an intent to make a choice between the two inconsistent remedies that are open to him Id. at 271 (citation omitted).

¶ 24. We relied on the Wiemann analysis in CSS North Henry, LLC v. Tully, 2001 WI App 8, ¶¶ 11, 13, 240 Wis. 2d 534, 624 N.W.2d 847. We also independently considered the language of Wis. Stat. § 704.29, in particular the subsections on which the present landlord relies: (1) mitigation required "unless the landlord has expressly agreed to accept a surrender of the premises and end the tenant's liability"; and (4)(b) re-renting not an acceptance of surrender. See Tully, 240 Wis. 2d 534, ¶¶ 19-21. We concluded that these subsections did "not change the common law rule that gives the election of the remedy for a tenant's breach to the landlord." Id., ¶ 20. We further concluded the statutory provisions did not undermine our determination that, based on the common law as expressed in Wiemann, the landlord's actions constituted an acceptance of the former tenant's surrender of the leased premises:

Here, CCS North Henry has refused to apply the rents received from Army Store to Tully's obligation under her lease, even though Tully requested that it do so. Additionally, it rented to Army Store for a period of time beyond that covered by Tully's lease. Therefore, under the undisputed facts of this case, we conclude that, as a matter of law, CCS North Henry elected to accept surrender when it obtained Army Store as its tenant for the premises. In making this election, it capped Tully's damages at the date of Army Store's tenancy, and therefore it cannot look to Tully for any damages beyond June 1, 1999.

Id., ¶ 14 (footnote omitted).

¶ 25. Based on the discussions in Wiemann and Tully, and on our own reading of the statute, we conclude that Wis. Stat. § 704.29(4) does not preclude a court from determining that a landlord, by his or her conduct, clearly evidenced an intent to accept surrendered premises, even if the landlord's conduct includes the re-renting of the premises. We further conclude that the statute also does not prevent a court from determining that a landlord, by his or her actions, clearly evidenced the intent to accept a surrender, even where the landlord has not "expressly agreed to accept a surrender of the premises." See § 704.29(1). Rather, the statute, as applied here, imposes two requirements. First, whenever a landlord does not, by word or deed, accept the surrender of leased premises following a tenant's removal, the landlord must mitigate damages by attempting to re-rent the premises. Second, if a landlord elects to hold the tenant to the tenancy, the statute provides that the landlord's re-renting the premises to another cannot, standing alone, "constitute an acceptance of surrender of the premises." See § 704.29(4).

¶ 26. We now apply our understanding of the statutory provisions to the facts before us. As we have described, the landlord in this case did more than simply re-rent the premises to the tenant's successor. The landlord proposed to the successor a new lease with higher rents and a term extending well beyond the expiration of the tenant's obligations on May 31, 2001. The landlord received and accepted from the successor the higher rent she specified in the proposed lease for five months until the successor vacated the premises. When the successor informed the landlord in November 2000 that he intended to vacate, the landlord's response was to inform the successor, but not her former tenant, that "you [the successor] are responsible until May 31, 2001 for rent of this unit." At no time between August 2000, when she was informed of the transfer of the business to the successor, and February 2001, after the successor had vacated, did the landlord communicate in any way to the tenant that she intended to hold him responsible for the obligations of a hold-over tenant through May 31, 2001.

¶ 27. We conclude that the landlord's actions in dealing exclusively with the successor, proposing a new long-term lease to the successor, accepting higher rent from the successor as called for in the proposed lease, and failing to communicate in any way to the tenant that she deemed him responsible for the tenancy through May 31, 2001," 'clearly evidence[d] an intent' " to accept the tenant's surrender of the premises.

¶ 28. The landlord points out, however, that her counsel informed the tenant in the letter of February 5, 2001, that the landlord had "offered [the successor] a lease, but he refused to sign it. Had he signed a new lease with us, [the landlord] would have released you from your existing lease." The landlord asserts that this shows she attempted to be "accommodating" and "gracious []" in the face of the tenant's unauthorized subletting of the premises. We reject this characterization and conclude that the landlord's belated expression of an intent to accept the surrender only if she obtained a new lease with the successor cannot undo the effect of her actions during the six months that preceded it. The landlord's actions and exclusive dealings with the successor in and after August 2000 constituted her acceptance of the tenant's surrender, which acceptance could not thereafter be revoked because her expectation of a new long-term lease did not come to fruition.

¶ 29. Finally, the landlord argues that, because the tenant's successor never executed a long-term lease with her, the successor never actually became her tenant and, thus, the tenant's obligations as a hold-over tenant continued. We reject this contention as well. Although it is true that the landlord and the successor never entered into a lease agreement for a fixed term, the landlord permitted the successor to occupy the premises for five months and accepted the rent payments he tendered in the amount the landlord had specified. We conclude that the landlord plainly accepted the successor as her tenant, either as a month-to-month "periodic tenant" or as a "tenant at will." See Wis. Stat. § 704.01(2) and (5) (defining quoted terms).

¶ 30. In sum, the tenant's notice to the landlord in August 2000 that he had vacated the premises by selling his business to another required the landlord to choose between two courses of action. If she desired» at that time to hold the tenant, either absolutely or conditionally, to any future obligations regarding the premises, she should have told him precisely that before beginning five months of dealing exclusively with the tenant's successor. See Tully, 240 Wis. 2d 534, ¶ 11 (A landlord's options are to "accept the tenant's surrender" or to "notify the tenant that it is re-entering and re-letting . . . for the tenant's benefit." (emphasis added)). Instead, the landlord essentially ignored the tenant for six months and took actions that clearly evidenced her intent to re-rent the premises for her own benefit. By her conduct, the landlord accepted the tenant's surrender of the premises, thereby releasing him from any further obligations. Having accepted the surrender, she could not undo her election after the successor's tenancy abruptly ended by then attempting to pursue her former tenant for damages. The trial court did not err in dismissing the landlord's claims.

¶ 31. The final issue we must address is the trial court's award to the tenant of his costs and actual attorney fees in successfully defending against the landlord's claims. The trial court found authority for awarding attorney fees in paragraph 20 of the parties' expired lease:

20. Legal costs and expenses. In any legal proceeding instituted by either party for the enforcement of the terms and provisions of this lease, the successful party shall be reimbursed by the other party for all reasonable costs, expenses and attorneys' fees.

The landlord argues this was error because, in prevailing, the tenant established that his obligations under the lease terminated in August 2000, which would also mean that no provisions of the parties' lease were effective after that month. Thus, in the landlord's view, the court could not rely on paragraph 20 of the lease as authority for awarding fees and costs to the tenant because, given the court's other conclusions, the lease no longer governed the parties' relationship at the time the landlord filed suit. We reject the landlord's contention.

¶ 32. The landlord cited paragraph 20 of the lease in her complaint to support her own claim to recover attorney fees and costs from the tenant. It is true, of course, that in order to prevail on her claims against the tenant, the landlord, unlike the tenant, needed to establish the continued viability of the lease provisions by persuading the court that the tenant's holdover, year-to-year tenancy remained in effect through May 31, 2001. In other words, had the landlord been successful on the merits, the provisions of the lease would still have been in effect during the holdover tenancy, see Wis. Stat. § 704.25(3), and she would have been entitled to an award of fees and costs under paragraph 20.

¶ 33. Paragraph 20 of the parties' lease, however, is not a one-sided fee-recovery provision in favor of the landlord. It is a reciprocal provision that authorizes attorney fees to be shifted from "the successful party" to the losing party "[i]n any legal proceeding instituted by either party for the enforcement of the terms and provisions of this lease." That is precisely the nature of the present action. It is a "legal proceeding instituted by" the landlord to enforce "the terms and provisions" of the parties' lease, in which the tenant has become the "successful party." It makes no difference to the operation of paragraph 20 that the tenant, in order to successfully defend, established that the lease provisions were no longer effective after August of 2000. Under the attorney fee provision in the parties' lease, it is the nature of the plaintiffs claims, not the theory of defense, that determines whether the prevailing party is entitled to recover his or her attorney fees.

¶ 34. The landlord does not argue that the attorney fees and costs awarded were unreasonable. Accordingly, we conclude there is no basis to disturb the amounts the trial court awarded to the tenant in the appealed judgment.

CONCLUSION

¶ 35. For the reasons discussed above, we affirm the appealed judgment.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Wisconsin Stat. § 704.19(6) provides as follows:
      Tenant moving out without notice. If any periodic tenant vacates the premises without notice to the landlord and fails to pay rent when due for any period, such tenancy is terminated as of the first date on which it would have terminated had the landlord been given proper notice on the day the landlord learns of the removal.

       The portion of Wis. Stat. § 704.19(2)(b) relied on by the landlord reads as follows:
      A periodic tenancy can be terminated by notice under this section only at the end of a rental period. In the case of a tenancy from year-to-year the end of the rental period is the end of the rental year even though rent is payable on a more frequent basis.

        First Wisconsin Trust Co. v. L. Wiemann Co., 93 Wis. 2d 258, 271, 286 N.W.2d 360 (1980) (citation omitted).

       The landlord also makes a somewhat curious argument that the premises were never actually "vacated" because the sale of the tenant's business to his successor was accomplished by way of a sale of corporate stock. The landlord tells us that, shortly after the tenant leased the premises from her, he incorporated his laundry and dry-cleaning business. Thereafter, "his corporation... paid rent... and operated the laundry business out of the Leased Premises." The sale to the tenant's successor was effected by a sale of stock, following which the corporation continued to operate on the premises and pay the rent. According to the landlord, "nothing legally changed" and the landlord's "acceptance of rent from [the successor's corporation — or subsequent communications with [the successor] — does not serve to terminate [tenant]'s Lease with [the landlord]."
      Not only do we fail to grasp the logic of this argument, but one might also use these same facts to assert that the corporation in question was the de facto hold-over tenant of the premises, and that the landlord's sole remedy is to sue the corporation for the rent and other obligations for the period in question. Moreover, the landlord's actions were inconsistent with her present suggestion that, because of the corporate rent payments, she was unaware of any change in who was responsible for the obligations of the occupancy of the premises. The tenant informed the landlord of the business transfer in August 2000, and the landlord thereafter directed all of her correspondence and communications to the successor. Moreover, the landlord's letters to the successor in August and November, and her attorney's letter of February 5, 2001, to the tenant, demonstrate that the landlord knew that the tenant had sold the business and that his successor was responsible for ensuring the rent was paid after August 2000.