Windsor Townhomes, LLC v. Abdalla Ibrahim Zanouny Ibrahim ( 2023 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 7, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2022AP1428 Cir. Ct. No. 2021SC4347
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
WINDSOR TOWNHOMES, LLC,
PLAINTIFF-RESPONDENT,
V.
ABDALLA IBRAHIM ZANOUNY IBRAHIM AND ASMAA IBRAHIM,
DEFENDANTS-APPELLANTS.
APPEAL from a judgment of the circuit court for Dane County:
JACOB B. FROST, Judge. Affirmed.
¶1 TAYLOR, J.1 Abdalla Ibrahim Zanouny Ibrahim and Asmaa
Ibrahim (the Ibrahims), pro se, appeal a small claims money judgment against
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(a) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2022AP1428
them in favor of their prior landlord, Windsor Townhomes, LLC (“Windsor
Townhomes”). The Ibrahims argue that the circuit court violated their right to due
process by starting the trial de novo approximately thirty minutes late and
“rushing” through the trial. They also argue that the court erred by failing to admit
and consider certain evidence and in denying their request to reopen the
evidentiary record. I reject the Ibrahims’ arguments and affirm.
BACKGROUND
¶2 Windsor Townhomes owns a four-unit townhome in Windsor,
Wisconsin. In July 2019, the Ibrahims leased a townhome unit from Windsor
Townhomes (the “unit”) and paid a $900 security deposit. The written lease
expired at the end of 2020, and was not renewed by Windsor Townhomes.
¶3 According to Windsor Townhomes, there was significant and
unusual damage to the unit at the time the Ibrahims moved out. In January 2021,
Windsor Townhomes sent the Ibrahims a security deposit disposition letter,
alleging that they had caused $10,234.35 in damages to the unit, and seeking
$9,334.35 in damages after the application of the Ibrahims’ security deposit. The
damages itemized in the letter included painting costs of $4,515.00, as well as
various other charges for repair, cleaning, and unpaid utilities.
¶4 The Ibrahims did not pay, and Windsor Townhomes brought this
action. The Ibrahims filed an answer and counterclaim, denying responsibility for
all but $476.83 and seeking damages for the late return of the remainder of their
security deposit pursuant to WIS. ADMIN. CODE § ATCP 134.06 and WIS. STAT.
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§ 100.20(5).2 After a hearing before a court commissioner, the Ibrahims requested
a trial de novo before the circuit court.
¶5 On May 19, 2022, the circuit court held the trial de novo. The
Ibrahims were represented by counsel. According to the Ibrahims, the trial was
scheduled to begin at 1:30 p.m. and last for two hours. They allege that, because
the court was late, the trial did not begin until 2:04 p.m.3
¶6 During the trial, the circuit court heard testimony from the Ibrahims
and from Windsor Townhomes’ owner Adam Gorman, and it admitted numerous
exhibits offered by both parties. Among other documents, Windsor Townhomes
introduced written statements by three contractors hired by Gorman to repair the
alleged damages to the unit caused by the Ibrahims. Each contractor represented
that the damage to the unit was unusually extensive. According to one account,
the unit was “excessively dirty,” the walls were “covered with scribbles from pen
or permanent markers,” and the baseboards and doors had numerous “gouges.”
Another account noted “hundreds of pen and knife holes” in the walls and doors
throughout the unit, and other damage to the unit. According to another account,
there was “a massive amount of damage,” and the walls, trim, and doors had to be
repaired and repainted.
2
See Armour v. Klecker, 169 Wis. 2d 692, 698, 486 N.W.2d 563 (Ct. App. 1992) (“[I]f
a court determines that a landlord has violated [WIS. ADMIN. CODE § ATCP 134.06], it is required
under the plain unambiguous language of [WIS. STAT. §] 100.20(5) … to award double damages
and attorney fees.”).
3
The transcript reflects that the trial began at 2:04 p.m.; however, the Ibrahims cite
nothing in the record to show that the trial should have started at 1:30 p.m., or that the reason for
the delay was the judge’s tardiness. However, for the purposes of this opinion, I will assume that
the Ibrahims’ representations are accurate.
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No. 2022AP1428
¶7 The Ibrahims sought to introduce evidence of their “experience with
prior landlords” to show that, in previous tenancies, they had left the premises in
good condition. Windsor Townhomes objected to the admission of this evidence
on relevancy grounds. The circuit court sustained the objection and excluded the
evidence.
¶8 After closing arguments, the circuit court acknowledged that the
time was 4:30 p.m., and said that, rather than “rush” a decision, it would take the
matter under advisement and review the exhibits before making a decision.
¶9 Following the trial but before the circuit court issued its decision, the
Ibrahims’ trial counsel withdrew from further representation. Proceeding pro se,
the Ibrahims submitted a letter requesting that the court consider additional
evidence not presented at trial and, if necessary, schedule an additional hearing.
The court denied these requests.
¶10 The circuit court issued a written decision in favor of Windsor
Townhomes. In reaching its decision, the court relied on the landlord’s evidence
that the damage to the unit was unusually severe, and referenced the statements of
the three contractors and photographic evidence. The court also relied on the
Ibrahims’ own admissions that they had caused damage to the unit, including
breaking a window in wintertime and leaving it damaged, leaving marker and
crayon marks on the unit’s walls, and hitting a retaining wall with their vehicle.
The court evaluated each alleged item of damage, finding that Windsor
Townhomes had not met its burden of proof as to certain demands, and reducing
other damages based on expected costs regularly incurred between leases, such as
cleaning and regular wear and tear. Ultimately, the court awarded damages in the
amount of $7,500.85, as well as statutory costs in the amount of $654.50, for a
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total judgment of $8,155.35. The court denied the Ibrahims’ counterclaim alleging
the unlawful withholding of a portion of their security deposit. The Ibrahims
appeal.
DISCUSSION
¶11 The Ibrahims argue that the circuit court violated their due process
rights by starting the trial approximately thirty minutes late and rushing through
the trial. They also argue that the court erred by failing to admit and consider
certain evidence, and denying their motion to reopen the evidentiary record.
1. The Ibrahims’ Due Process Argument
¶12 Due process arguments “raise questions of law that we review de
novo.” City of S. Milwaukee v. Kester, 2013 WI App 50, ¶13, 347 Wis. 2d 334,
830 N.W.2d 710. I address the Ibrahims’ due process argument only briefly
because it is based on a premise unsupported by the record and therefore fails.
The Ibrahims assert that the circuit court commenced the trial approximately thirty
minutes late, which created a “rushed” proceeding that denied them “the
opportunity to present crucial evidence or arguments.” The Ibrahims do not
expressly identify what evidence they would have presented or arguments they
would have made had the trial extended beyond its two and one-half hour length.
¶13 WISCONSIN STAT. ch. 799 sets forth court rules for “small claims”
actions, which govern eviction actions. See WIS. STAT. § 799.01(1)(a). Like other
small claims proceedings, during an eviction trial, a circuit court “shall conduct
the proceeding informally, allowing each party to present arguments and proofs
and to examine witnesses to the extent reasonably required for full and true
disclosure of the facts.” WIS. STAT. § 799.209(1).
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¶14 Contrary to the Ibrahims’ assertions, the circuit court actually
permitted the trial to extend longer than the two hours the Ibrahims allege were
initially scheduled: the trial lasted two and one-half hours, from 2:04 p.m. until
4:34 p.m. During this time, each party fully presented its case by calling witnesses
and soliciting testimony, moving exhibits into evidence and making final
arguments. Contrary to the Ibrahims’ assertion that the court “rush[ed]” the trial,
the court allotted the time needed to hear all of the evidence and arguments each
party desired to present and more time than the Ibrahims had anticipated. The
Ibrahims were represented by counsel at the trial and had every reasonable
opportunity to introduce evidence and make their arguments. At no point during
the trial did they request additional time to present their case.
¶15 The circuit court indicated that it knew the Ibrahims had time
constraints due to their child care situation, to which they alerted the court. At the
end of the trial, the court indicated that rather than “rush” through an oral decision,
it wanted additional time to review and evaluate the evidence. The court took the
matter under advisement and ultimately issued a thorough written decision.
¶16 Accordingly, the circuit court did not “rush” the trial, and the
Ibrahim’s due process argument fails because it is factually unsupported by the
record.
2. The Ibrahims’ Evidentiary Arguments
¶17 The Ibrahims argue that the circuit court committed evidentiary
errors by failing to consider evidence that “could have significantly changed the
court[’]s position.” The Ibrahims appear to argue that the court erred in three
ways: (1) by excluding evidence of their experiences as tenants with prior
landlords; (2) by failing to consider certain evidence neither party offered; and
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No. 2022AP1428
(3) by denying their post-trial request to submit additional evidence. For the
reasons set forth below, I reject all of these arguments.
¶18 I first address the Ibrahims’ argument that the circuit court
erroneously excluded evidence. As noted above, the Ibrahims attempted to offer
evidence of their history as tenants with prior landlords. Windsor Townhomes
objected on relevancy grounds. As an offer of proof, the Ibrahims’ trial counsel
explained that the Ibrahims had spent “six years living at UW housing with seven
children” without significant damage, and evidence to that effect would “dispel
any concerns” that the unit had been damaged due to the Ibrahims’ large family.
The court excluded the evidence, explaining that “the reasonable probative value
is so small, especially with how much time we have left.” The court reasoned that
“other acts” evidence is not “very useful, which is why, when the rules of evidence
apply, we tend to exclude it,” and that the proceedings should instead “focus on
what happened here.”
¶19 The rules of evidence generally do not apply to small claims
proceedings; rather, the circuit court “shall admit all other evidence having
reasonable probative value, but may exclude irrelevant or repetitious evidence or
arguments.” WIS. STAT. § 799.209(2). “The admissibility of evidence is directed
to the sound discretion of the [circuit] court ….” State v. Brewer, 195 Wis. 2d
295, 305, 536 N.W.2d 406 (Ct. App. 1995). “We affirm discretionary decisions if
the circuit court applies the correct legal standard to the relevant facts and reaches
a reasonable outcome.” JP Morgan Chase Bank, NA v. Green, 2008 WI App 78,
¶11, 311 Wis. 2d 715, 753 N.W.2d 536.
¶20 As the circuit court correctly noted, the proffered evidence did not
relate directly to the dispute before the court, but instead was offered to show that
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No. 2022AP1428
the Ibrahims had, in other tenancies with different landlords, kept the premises in
good condition. The court referenced WIS. STAT. § 904.04(2), which provides that
evidence of “other acts” is “not admissible to prove the character of a person in
order to show that the person acted in conformity therewith.” Although the court
recognized that small claims proceedings are generally not subject to the statutory
rules of evidence, including § 904.04(2), it acknowledged the legal principle, as
reflected in that statute, that evidence has limited value if it does not directly relate
to the matter before the court. In the court’s assessment of the “probative value”
of this evidence, it applied the correct legal standard and had a reasonable basis to
exclude the evidence. The Ibrahims have not shown that the court erroneously
exercised its discretion in excluding this evidence.
¶21 Next, I turn to the Ibrahims’ argument that the circuit court erred by
failing to consider evidence they never offered at trial. The Ibrahims assert that
the court should have considered “a voice recording of the move-out
walk[]through” that “would have been essential to the case to show that the
claimed damages did not exist at move out.” Yet they identify nowhere in the
record where they sought to present evidence of any audio recording. The
Ibrahims also allege that the court erred when it failed to call Windsor
Townhomes’ property manager as a witness. They identify nowhere in the record
where they sought to call this individual as a witness.
¶22 A circuit court does not erroneously exercise its discretion by failing
to consider evidence never offered by a party. As provided in WIS. STAT.
§ 799.209(1), courts presiding over small claims proceedings shall allow “each
party” to present arguments and evidence “as reasonably required” under the
circumstances. It is the parties, not the court, who develop their own arguments
and establish the factual record in small claims proceedings, like other civil
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No. 2022AP1428
proceedings. Nothing in § 799.209(1) creates an obligation for circuit courts to
call their own witnesses or to consider evidence not presented by the parties.
Indeed, such requirements would remove courts from the arena of independence
into the role of an advocate. See State v. Garner, 54 Wis. 2d 100, 104, 194
N.W.2d 649 (1972) (a judge “should not take an active role in trying the case” or
act as an “advocate” for any party). I therefore reject the Ibrahims’ arguments
pertaining to evidence never offered at trial.
¶23 Finally, the Ibrahims seem to challenge the circuit court’s refusal to
reopen the evidentiary record as they requested. As noted above, after trial but
before the court issued its ruling, the Ibrahims submitted a pro se letter to the court
seeking to admit additional evidence. In the letter, Abdallah Ibrahim explained
that he “was not asked” about certain issues during the trial. He requested that the
court (1) consider additional evidence, including documents attached to his letter
that purportedly call into question the credibility of Gorman and one of the
contractors who wrote a testimonial, and (2) set an additional hearing. In its
written decision, the court denied the Ibrahims’ requests, stating that it “did not
consider any submissions of evidence or argument post-trial, as evidence was
already closed and the [c]ourt had already received oral arguments.”
¶24 The circuit court’s decision to grant or deny a request to reopen the
evidentiary record is discretionary and is sustained unless the court erroneously
exercised its discretion. See Guzikowski v. Kuehl, 153 Wis. 2d 227, 230, 451
N.W.2d 145 (Ct. App. 1989). The Ibrahims do not persuade me that the court
erred by denying their request. Reopening the record under the circumstances
would have been contrary to the nature of small claims proceedings, which are
intended to resolve disputes quickly and efficiently. See King v. Moore, 95
Wis. 2d 686, 690, 291 N.W.2d 304 (Ct. App. 1980). The letter provides no
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No. 2022AP1428
compelling reason why the additional evidence was not timely offered at trial.4
Moreover, the letter does not identify any compelling new evidence directly
relating to the alleged damages, but instead seeks to challenge the opposing
party’s credibility. Given the marginal relevance of the additional evidence, the
Ibrahims’ trial counsel might have made a strategic decision not to offer it. The
court had a reasonable basis to decline to reopen the record, and the Ibrahims have
not shown that the court erroneously exercised its discretion.
CONCLUSION
¶25 For all of these reasons, I affirm the judgment of the circuit court.
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
4
In fact, one of the documents that the Ibrahims sought to admit had already been
admitted. The Ibrahims’ letter asks the circuit court to consider an email chain between Abdalla
Ibrahim and Adam Gorman showing that Tyler Schmidt (one of the contractors who wrote a
statement about extensive damage to the unit) regularly works for Gorman and therefore “may
have bias.” However, the email chain in question was admitted into evidence at trial, and
Gorman testified at trial that Schmidt was a “maintenance tech” for the business. Thus, the court
was already aware of the relationship between Gorman and Schmidt, and could consider any
resulting bias in weighing Schmidt’s testimony.
10