Penny Powell v. Gregory E. Patten ( 2020 )


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  •        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 30, 2020
    A party may file with the Supreme Court a
    Sheila T. Reiff                    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.           2019AP2234                                                     Cir. Ct. No. 2018CV25
    STATE OF WISCONSIN                                                IN COURT OF APPEALS
    DISTRICT IV
    PENNY POWELL AND JERRY RICHARDSON,
    PLAINTIFFS-RESPONDENTS,
    V.
    GREGORY E. PATTEN, JOAN KINCAID AND LAKE JOY CAMPGROUND, LLC,
    DEFENDANTS-APPELLANTS.
    APPEAL from an order of the circuit court for Lafayette County:
    DUANE M. JORGENSON, Judge. Affirmed.
    Before Fitzpatrick, P.J., Kloppenburg, and Nashold, JJ.
    Per curiam opinions may not be cited in any court of this state as precedent
    or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
    ¶1         PER CURIAM. Gregory Patten, Joan Kincaid, and Lake Joy
    Campground, LLC, appeal a circuit court order awarding damages to Penny
    No. 2019AP2234
    Powell and Jerry Richardson.1 Lake Joy argues that the circuit court erred by
    determining that: (1) the parties’ contract for a seasonal campsite at Lake Joy
    Campground was a lease; and (2) Lake Joy breached the contract. For the reasons
    set forth in this opinion, we reject Lake Joy’s arguments and affirm.
    ¶2     Powell sued Lake Joy for breach of the parties’ 2017 contract for a
    seasonal campsite at Lake Joy Campground. After a four-day trial to the court, the
    circuit court made the following factual findings. Powell had annual contracts for
    a seasonal site at Lake Joy Campground beginning in 1997 and continuing to
    2017. Powell made significant improvements to site 98 at Lake Joy Campground
    that reflected a long history of occupancy, which included building an attached
    room and deck onto her camper, as well as a brick patio and a storage shed on the
    site.   Based on Powell’s long occupancy of site 98 and the nature of the
    improvements to site 98 over the years, Powell’s use of the site was as a summer
    residence. The court determined that, based on those facts, Lake Joy and Powell’s
    2017 campground contract was a residential lease.
    ¶3     The court further found the following. Powell provided Lake Joy
    notice in May 2017 that she intended to remove her old trailer from site 98 and
    install a new one.       Lake Joy approved the removal of the old camper and
    replacement with a new and larger camper. Powell relied on Lake Joy’s approval
    to purchase a new camper to be installed on site 98. However, Lake Joy was then
    displeased with the timing and manner in which the old camper was removed and
    therefore: revoked its permission for Powell to bring in her new camper; informed
    the seller of Powell’s new camper that the placement of the new camper was on
    1
    We refer to the appellants collectively as “Lake Joy,” and the respondents collectively
    as “Powell.”
    2
    No. 2019AP2234
    hold; disconnected electricity to site 98; and parked a van on site 98 to prevent
    placement of Powell’s new camper. Additionally, Powell’s subsequent efforts to
    obtain approval to bring her new camper to her site were unsuccessful. The circuit
    court determined that those facts established that Lake Joy breached the contract
    between the parties by constructively evicting Powell from her site. The court
    awarded damages to Powell flowing from Lake Joy’s breach of the lease. Lake
    Joy appeals.
    ¶4      When reviewing the circuit court’s findings as the trier of fact, we
    apply a highly deferential standard of review. Jacobson v. American Tool Cos.,
    Inc., 
    222 Wis. 2d 384
    , 389, 
    588 N.W.2d 67
     (Ct. App. 1998). We will not set aside
    the court’s factual findings unless those findings are clearly erroneous. 
    Id.
     at 389-
    90.   “Furthermore, the fact finder’s determination and judgment will not be
    disturbed if more than one inference can be drawn from the evidence.” 
    Id. at 389
    .
    When, as here, the circuit court acts as the finder of fact, it is the ultimate arbiter
    of credibility. Village of Big Bend v. Anderson, 
    103 Wis. 2d 403
    , 410, 
    308 N.W.2d 887
     (Ct. App. 1981). Interpretation of a contract is a question of law that
    we review independently. Jones v. Jenkins, 
    88 Wis. 2d 712
    , 722, 
    277 N.W.2d 815
     (1979).
    ¶5      Lake Joy contends that the circuit court erred by awarding Powell
    remedies that flowed from breach of a lease because, for the reasons we next
    summarize, Lake Joy’s contract with Powell was not a lease.
    ¶6      First, Lake Joy argues that the contract could not have been a lease
    because campgrounds are places of lodging, not real estate. It contends that
    3
    No. 2019AP2234
    Wisconsin law recognizes campgrounds as lodging, not residential housing. See,
    e.g., WIS. STAT. § 106.52(1)(d)4. (2017-18)2 (including “campground” in the
    definition of “[l]odging establishment”); WIS. ADMIN. CODE § ATCP 79.03(3)
    (Nov. 2020)3 (defining a “[c]ampground” as “a parcel or tract of land … for the
    purpose       of    providing campsites … for temporary overnight sleeping
    accommodations”). Lake Joy asserts that campgrounds are places of transient
    occupancy, akin to hotels and motels, and that the nature of a campground as a
    lodging establishment requires campground owners to have the ability to remove
    guests without resorting to judicial process.
    ¶7        Second, Lake Joy contends that its contract with Powell granted
    Powell a license as opposed to a tenancy and that the contract did not meet the
    substantive requirements for a lease. It contends that leases surrender control of
    the premises to the tenant, such that tenants are free to use the property during the
    term of the lease subject to any restrictions in the lease. Lake Joy argues that the
    rights granted to Powell were akin to those granted to licensees when shopping at
    a store or attending a movie. It contends that the contract did not grant Powell any
    interest in the land but, rather, only allowed Powell to stay at the campground for
    up to seventy days in a season. See, e.g., Vicker v. Byrne, 
    155 Wis. 281
    , 
    143 N.W. 186
    , 188 (1913) (explaining that a license, unlike a tenancy, creates no
    interest in the land).
    2
    All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
    noted.
    3
    All references to the Wisconsin Administrative Code are to the November 2020
    Register unless otherwise noted.
    4
    No. 2019AP2234
    ¶8      Third, Lake Joy contends that the unambiguous language of the
    contract controls and dictates that the contract was not a lease.4 See Tufail v.
    Midwest Hosp., LLC, 
    2013 WI 62
    , ¶72, 
    348 Wis. 2d 631
    , 
    833 N.W.2d 586
    (explaining that, if contract language is unambiguous, that language is
    controlling). It argues that the 2017 contract changed the label of “lease” used in
    previous years to “contract.”          It contends that that the plain language of the
    contract provided that Lake Joy could terminate the contract at any time without
    specifying that written notice was required, and required seasonal guests to obey
    campground rules and abide by Lake Joy’s interpretation of the contract. Lake Joy
    argues that the circuit court disregarded the plain language of the agreement to
    conclude that the contract was a lease and Lake Joy was required to provide
    written notice of a breach and then follow the judicial process for eviction. It
    argues that there could be no constructive eviction because there was no lease.
    ¶9      Fourth, Lake Joy contends that, even if the contract were a lease,
    Lake Joy did not constructively evict Powell.                   See First Wis. Tr. Co. v.
    L. Wiemann Co., 
    93 Wis. 2d 258
    , 269, 
    286 N.W.2d 360
     (1980) (constructive
    eviction is interference with tenant’s rights to full use and enjoyment of the
    premises for a substantial period of time). It argues that the circuit court relied on
    two facts—that Lake Joy disconnected power to Powell’s site and parked a van on
    the site to prevent Powell from putting her new camper on the site—that were both
    4
    Lake Joy also contends that the circuit court erred by finding that the contract was a
    contract of adhesion and construing the contract against Lake Joy as the drafter. It then contends
    that, even if the contract were a contract of adhesion, it was not unconscionable. Because we
    conclude that the circuit court’s factual findings supported its determination that the contract was
    a lease and that Lake Joy breached the lease, we need not reach whether the contract was a
    contract of adhesion. See Sweet v. Berge, 
    113 Wis. 2d 61
    , 67, 
    334 N.W.2d 559
     (Ct. App. 1983)
    (explaining that if a decision on one point disposes of the appeal, the court will not decide other
    issues raised).
    5
    No. 2019AP2234
    reasonable actions by Lake Joy under the circumstances and did not prevent
    Powell from accessing the site.        It also contends that Powell could have
    communicated with Lake Joy to discuss placing her new camper and having the
    power restored.
    ¶10    Fifth, Lake Joy argues that residential rental trade practices
    regulations do not apply to campgrounds.             It cites WIS. ADMIN. CODE
    § ATCP 134.01(4) as setting forth the scope of the regulations and excluding from
    its scope “[a] dwelling unit, such as a dwelling unit in a hotel, motel or boarding
    house, that is being rented only by tourist or transient occupants.” Lake Joy
    argues that Powell’s seasonal campsite was not a “residence” and, thus, was not
    governed by the administrative rules for residential rentals. It also argues that,
    because WIS. ADMIN. CODE § ATCP 79 regulates campgrounds, it is unreasonable
    to conclude that WIS. ADMIN. CODE § ATCP 134 applies to campgrounds as well.
    ¶11    Finally, Lake Joy contends that it did not breach the contract in any
    way. It contends that the contract was never completed because Lake Joy refused
    to accept Powell’s offer to pay the second half of the annual fee in June 2017.
    Lake Joy also argues that, under the contract, it had the right to cancel the contract
    at any time for violation of the contract. It contends that Powell removed her old
    trailer from her campsite without permission and outside designated work hours,
    contrary to the contract. It contends that the circuit court’s determination that
    Lake Joy breached its duty of good faith and fair dealing by preventing Powell
    from placing her new camper on her campsite was clearly erroneous because the
    court ignored Powell’s actions contrary to the contract that justified Lake Joy’s
    actions. See Metropolitan Ventures, LLC v. GEA Assocs., 
    2006 WI 71
    , ¶35, 
    291 Wis. 2d 393
    , 
    717 N.W.2d 58
     (stating parties to a contract owe each other duty of
    good faith and fair dealing).
    6
    No. 2019AP2234
    ¶12    Powell responds that the contract and the course of dealing between
    the parties created a landlord-tenant relationship. She contends that a lease was
    created when she signed the 2017 contract and paid the first half of the annual fee
    on April 21, 2017, for occupancy of site 98 from April 21, 2017 to April 19, 2018,
    including at least seventy overnight stays.        Powell argues that Lake Joy
    surrendered site 98 to her and she was free to use the site consistent with the terms
    of the agreement, creating a landlord-tenant relationship. Powell disputes Lake
    Joy’s contention that her relationship with Lake Joy Campground was akin to a
    licensee, pointing to her right to install permanent structures on her site as
    differentiating her from shoppers or movie-goers, or overnight campers under
    WIS. ADMIN. CODE § ATCP 79.11(1).
    ¶13    Powell also contends that WIS. ADMIN. CODE § 134.01 does not
    specifically exclude campgrounds from its coverage. She cites WIS. ADMIN. CODE
    § 134.02(14) as defining “[t]ourist or transient occupant[]” as a “person[] who
    occup[ies] a dwelling unit for less than 60 days while traveling away from [his or
    her] permanent place of residence.” Powell contends that she stayed at site 98 at
    Lake Joy Campground sixty to seventy days per year, and that her camper and
    attached structures occupied the site all year every year under her annual contracts.
    She argues that she was therefore not a “[t]ourist or transient occupant” of Lake
    Joy Campground and was not akin to a shopper or other licensee but, rather, was a
    tenant entitled to the protection of WIS. ADMIN. CODE § ATCP 134.
    ¶14    Powell asserts that the contract between the parties met the
    requirements of a lease by transferring possession of site 98 for the period from
    April 21, 2017 to April 19, 2018. See WIS. STAT. § 704.01(1) (defining a “[l]ease”
    as “an agreement … to transfer possession of real property … for a definite period
    of time”). Powell asserts that because she purchased an interest in site 98 annually
    7
    No. 2019AP2234
    since 1997, with permanent structures attached and maintained all year every year
    since 2001, the 2017 annual contract for the site for a definite period for a fixed
    amount met the requirements for a lease. See Brenner v. Amerisure Mut. Ins.
    Co., 
    2017 WI 38
    , ¶48, 
    374 Wis. 2d 578
    , 
    893 N.W.2d 193
     (stating that a lease is a
    purchase of interest in the estate); Walgreens Co. v. City of Madison, 
    2008 WI 80
    ,
    ¶45, 
    311 Wis. 2d 158
    , 
    752 N.W.2d 687
     (stating a “lease” is an encumbrance
    creating a partial estate, where the landowner no longer has full access to the
    property).
    ¶15     Powell also asserts that the contract met the definition of “[r]ental
    agreement” under WIS. STAT. § 704.01(3m) because it was an agreement between
    Lake Joy and Powell as to the essential terms for rental of a specific premises or
    dwelling unit. She points out that the 2017 contract was for Powell’s occupation
    of site 98 for a specific period of time and for a specific amount. She points out
    that “[p]remises” is defined as “property covered by the lease,” see § 704.01(3)
    and WIS. ADMIN. CODE § ATCP 134.02(9), and “[d]welling unit” is defined as a
    “structure … primarily used as a home, residence, or place of abode,”
    § ATCP 134.02(2). Powell argues that the law does not require that the premises
    be her primary residence. She cites the definition of “[t]enancy” as having the
    right to present or future occupancy under a rental agreement.                        See
    § ATCP 134.02(13). Powell also cites the definitions of “[l]andlord,” “[o]wner,”
    and “[t]ourist or transient occupant[]” under the administrative code as supporting
    the circuit court’s interpretation of the parties’ 2017 contract as a lease. See
    § ATCP 134.02(5) (“‘Landlord’ means the owner or lessor of a dwelling unit
    under any rental agreement ….”); (7) (“‘Owner’ means one or more persons,
    jointly or severally, vested with all or part of the legal title to the premises or all or
    part of the beneficial ownership and right to present use and enjoyment of the
    8
    No. 2019AP2234
    premises.”); and (14) (“‘Tourist or transient occupants’ means tourists or other
    persons who occupy a dwelling unit for less than 60 days while traveling away
    from their permanent place of residence.”). Powell argues that her relationship
    with Lake Joy Campground was not one of a tourist or transient occupant. She
    points out that her trailer and attached rooms, shed and patio occupied site 98
    continuously over a period of years.
    ¶16    Finally, Powell contends that the 2017 contract was ambiguous, and
    that the circuit court therefore properly turned to extrinsic evidence to construe the
    contract. See Capital Invests., Inc. v. Whitehall Packing Co., Inc., 
    91 Wis. 2d 178
    , 190, 
    280 N.W.2d 254
     (1979) (explaining that contract is ambiguous if it is
    susceptible to more than one meaning, and “[a]fter a contract has been found to be
    ambiguous, it is the duty of the courts to determine the intent of the parties at the
    time the agreement was entered into,” which may involve looking to extrinsic
    evidence). Powell argues that the circuit court correctly determined that the 2017
    contract contained ambiguous language as to Lake Joy’s right to cancel the
    contract and the processes for removing old campers and bringing in new ones.
    She argues that, once the court determined that the contract was ambiguous, the
    court properly looked to extrinsic evidence to determine the parties’ intent. See 
    id.
    She argues that the circuit court properly relied on the course of dealing between
    Lake Joy and Powell over the years to determine that the parties intended the 2017
    contract as a lease. Powell argues that the circuit court properly determined that
    Lake Joy’s conduct breached the lease and the duty of good faith and fair dealing,
    and that Lake Joy has failed to develop an argument to disturb the circuit court’s
    findings.
    ¶17    We conclude that, under the specific facts of this case as found by
    the circuit court and which have not been shown to be clearly erroneous, the
    9
    No. 2019AP2234
    contract between the parties was a lease. Lake Joy’s first argument is that the
    2017 contract could not have been a lease as a matter of law because campgrounds
    are generally categorized as “lodging,” as opposed to “real estate,” under
    Wisconsin statutes and administrative rules. However, none of the statutes or
    rules Lake Joy cites establish that an annual contract for a specific seasonal site
    within a campground can never, as a matter of law, be a lease. We are not
    persuaded by Lake Joy’s contention that the parties’ contract could not be a lease
    as a matter of law based on statutes and administrative rules that generally classify
    campgrounds as places of temporary overnight lodging.
    ¶18     Similarly, we are not persuaded that the fact that campgrounds are
    generally places of lodging means that Powell’s rights under the contract were that
    of a licensee with temporary permission to enter the property, akin to a shopper or
    movie-goer. Lake Joy asserts that Powell’s rights should be considered the same
    as other recreational licensees, but fails to establish why that is so. Lake Joy
    asserts, without explanation, that the contract did not convey any interest in the
    campground to Powell because it allowed overnight stays for only seventy nights
    in a season.     Lake Joy’s contention that Powell’s rights were necessarily
    equivalent to a licensee as a matter of law is conclusory, and we reject it on that
    basis. See State v. McMorris, 
    2007 WI App 231
    , ¶30, 
    306 Wis. 2d 79
    , 
    742 N.W.2d 322
     (stating we may decline to consider arguments that are insufficiently
    developed).
    ¶19     Next, we are not persuaded by Lake Joy’s contention that the
    contract could not have been a lease because it was labelled as a “contract” as
    opposed to a “lease.” Lake Joy does not explain why the label of the contract
    controls the type of legal relationship it created. Lake Joy also asserts, without
    any developed argument or citation to the record, that the contract unambiguously
    10
    No. 2019AP2234
    allowed Lake Joy to cancel the agreement at any time without written notice and
    granted it sole authority to interpret the contract. We reject these arguments as
    conclusory as well. See 
    id.
     (stating we may decline to address arguments that lack
    adequate legal reasoning or citation to the record).
    ¶20     In sum, none of Lake Joy’s arguments persuade us that the 2017
    contract was not a lease. Moreover, Lake Joy does not dispute any of the facts
    found by the circuit court as supporting its determination that the contract,
    together with the conduct of the parties, established a lease. The circuit court
    found that:      Powell had annual contracts for a seasonal site at Lake Joy
    Campground beginning in 1997; at the time the 2017 contract was executed,
    Powell had already made improvements to site 98 that reflected a long history of
    occupancy, including building a structure and patio attached to the camper and
    placing a shed on the site; and Powell used the campsite as a summer home. The
    2017 contract gave Powell, in exchange for the annual fee, the right to keep her
    camper and other improvements on site 98 from April 21, 2017 to April 19, 2018,
    as well as seventy overnight stays. We conclude that the annual seasonal contract
    between Lake Joy and Powell, together with the specific above-referenced facts
    found by the circuit court, established a lease between the parties.5 See WIS. STAT.
    § 704.01(1) (“‘Lease’ means an agreement … for transfer of possession of real
    property … for a definite period of time. A lease is for a definite period of time if
    it has a fixed commencement date and a fixed expiration date ….”).
    5
    We emphasize that our conclusion is based on the specific facts of this case and the
    arguments as framed in the appellants’ brief. We conclude only that Lake Joy has not established
    that the contract between the parties was not a lease, based on the facts presented here. We do
    not opine as to the legal relationships created by other contracts for seasonal campsites on
    different facts.
    11
    No. 2019AP2234
    ¶21    We also conclude that Lake Joy has not established that it did not
    constructively evict Powell from site 98. Lake Joy argues that the circuit court
    erred by finding a constructive eviction based on Lake Joy disconnecting
    electricity to site 98 and parking a van on site 98 to prevent Powell from placing
    her new camper on the site. However, Lake Joy fails to address the complete
    factual findings by the circuit court as establishing a constructive eviction. Rather,
    Lake Joy merely asserts, without supporting citation to the record, that it was
    justified in disconnecting electricity to site 98 as a safety measure and in
    preventing placement of the new camper because Powell had not submitted
    information about the new camper to Lake Joy for review. It also asserts, again
    without citation to the record, that Powell still had access to the site itself as well
    as the opportunity to contact Lake Joy to discuss placing the new camper and to
    ask for the electricity to be restored. Because Lake Joy has not developed any
    legal argument that the facts found by the circuit court did not amount to a
    constructive eviction, and has not developed any argument that the facts found by
    the circuit court were clearly erroneous, we reject Lake Joy’s argument that there
    was no constructive eviction as both conclusory and insufficiently developed. See
    McMorris, 
    306 Wis. 2d 79
    , ¶30.
    ¶22    We are also not persuaded by Lake Joy’s argument that the
    regulations for residential rental practices under WIS. ADMIN. CODE § ATCP 134
    cannot apply in this case as a matter of law. Lake Joy argues that a campground is
    not a residence and that a campground is excluded from the regulations under
    § ATCP 134 because campgrounds are occupied by “tourist or transient
    occupants.” See § ATCP 134.01(4). However, we are not persuaded that those
    assertions as to campgrounds generally dictate whether § ATCP 134 applies to the
    parties’ relationship in this case. Moreover, Lake Joy’s assertions that the contract
    12
    No. 2019AP2234
    does not contain the word “reside,” that the campsite was not Powell’s primary
    residence, and that other administrative codes apply specifically to campgrounds
    do not persuade us that § ATCP 134 cannot regulate the lease in this case.
    ¶23    We also reject Lake Joy’s contention that Powell, rather than Lake
    Joy, breached the contract. At the outset, we reject as insufficiently developed
    Lake Joy’s assertion that the contract was not formed when it was signed and
    Powell paid the first half of her annual fees. Lake Joy does not explain why it
    believes the contract was not formed as a matter of law because the second half of
    the fees had not been paid. The remainder of Lake Joy’s argument relies on its
    position that Powell’s conduct breached the parties’ contract, entitling Lake Joy to
    cancel. However, Lake Joy’s arguments are unsupported by citation to the record,
    do not address the contrary factual findings by the circuit court, and make no
    attempt to show that the circuit court’s relevant factual findings were clearly
    erroneous. See McMorris, 
    306 Wis. 2d 79
    , ¶30.
    ¶24    Finally, we reject Lake Joy’s argument that it did not breach its duty
    of good faith and fair dealing. Lake Joy argues that it acted properly in response
    to Powell’s conduct of both removing her camper without permission and acting
    inappropriately. Lake Joy argues that the circuit court erroneously found that the
    contract did not prohibit Powell from removing her old trailer, citing language
    from the contract that stated that movement of a camper must be discussed with
    the owner prior to moving. Lake Joy sets forth the conduct it believes was a
    breach of the duty of good faith and fair dealing on the part of Powell. However,
    again, Lake Joy fails to address the entirety of the factual findings by the circuit
    court, explain why it believes those facts support its position that it did not breach
    13
    No. 2019AP2234
    its duty of good faith or fair dealing, or make an attempt to challenge any of the
    circuit court’s underlying factual findings.6 See 
    id.
    ¶25     For the reasons set forth in this opinion, we are not persuaded that
    the circuit court erred as to its factual findings or the legal conclusions it reached
    based on those factual findings. We affirm.
    By the Court.—Order affirmed.
    This     opinion    will    not     be   published.       See    WIS. STAT.
    RULE 809.23(1)(b)5.
    6
    To the extent that Lake Joy attempts to make new arguments in its reply brief, we
    decline to address those arguments. See A.O. Smith Corp. v. Allstate Ins. Cos., 
    222 Wis. 2d 475
    ,
    492, 
    588 N.W.2d 285
     (Ct. App. 1998) (explaining we generally decline to consider arguments
    raised for the first time in a reply brief).
    14
    

Document Info

Docket Number: 2019AP002234

Filed Date: 12/30/2020

Precedential Status: Non-Precedential

Modified Date: 9/9/2024