Carson D. Combs v. Lincoln Manor ( 2021 )

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.
November 10, 2021
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 Nos. 2019AP638 Cir. Ct. Nos. 2019SC1040
2018CV1781
2019AP2009
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
NO. 2019AP638
LINCOLN MANOR REDEVELOPMENT, LLC,
PLAINTIFF-RESPONDENT,
V.
CARSON D. COMBS,
DEFENDANT-APPELLANT.
NO. 2019AP2009
CARSON D. COMBS,
PLAINTIFF-APPELLANT,
V.
LINCOLN MANOR,
DEFENDANT-RESPONDENT.
Nos. 2019AP638
2019AP2009
APPEALS from orders of the circuit court for Racine County:
EUGENE A. GASIORKIEWICZ, Judge. Affirmed.
Before Gundrum, P.J., Neubauer and Reilly, 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. In these consolidated matters, Carson D. Combs,
pro se, appeals an order granting summary judgment in favor of his landlord,
Lincoln Manor, in a civil lawsuit that Combs filed.1 He also appeals an order
denying his motion to dismiss and issuing a writ of restitution in an eviction action
filed against him by Lincoln Manor. For the reasons that follow, we affirm.
Background
¶2 In December 2018, Combs sued Lincoln Manor alleging, among
other things, that when he signed a residential lease agreement with Lincoln
Manor, Lincoln Manor knew of a bedbug infestation existing within his apartment.
Combs alleged that the infestation was not disclosed to him in order to defraud
him of rent payments. The circuit court subsequently granted summary judgment
to Lincoln Manor on Combs’ claims.
¶3 In March 2019, while the civil lawsuit remained pending, Lincoln
Manor filed an eviction action against Combs because he was several months
behind on rent. Combs moved to dismiss the eviction action, asserting that
1
These appeals were consolidated for briefing and disposition pursuant to this court’s
order. To facilitate consolidation, this court additionally determined that 2019AP638 would be
decided by a three-judge panel.
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Lincoln Manor was barred from proceeding due to a separate amortization action
that he had filed. Combs additionally argued that the eviction was retaliatory and
that the notice provided by Lincoln Manor was improper under 24 C.F.R.
§ 880.607. The circuit court denied Combs’ motion to dismiss the eviction action
and issued a writ of restitution.
¶4 As we understand Combs’ appellate briefing, he argues that the
circuit court erred in granting summary judgment to Lincoln Manor in his civil
lawsuit because Lincoln Manor did not properly comply with discovery
requirements and because the circuit court applied the wrong methodology. As to
the eviction action, Combs continues to argue that Lincoln Manor was barred from
proceeding due to his amortization action and because the eviction was
retaliatory.2 He additionally contends that the circuit court was biased against him
in both cases, as well as in his efforts to initiate this appeal.3 We will present
2
Regarding the eviction action, Combs also asserts that the circuit court was required to
set an amount of a surety under WIS. STAT. § 799.445 (2019-20). This court previously denied
Combs’ motion to stay execution of the writ of restitution based in part on this claim. Afterward,
Combs petitioned for a supervisory writ to this court making the same argument he now makes on
appeal. We have already rejected this argument once and will not address it again.
In addition, by not first raising them in the circuit court, Combs forfeited his appellate
arguments regarding alleged violations of various federal regulations and an alleged violation of
WIS. STAT. § 704.17 (2019-20). See State Farm Mut. Auto. Ins. Co. v. Hunt, 2014 WI App 115,
¶32, 358 Wis. 2d 379, 856 N.W.2d 633 (“Arguments raised for the first time on appeal are
generally deemed forfeited[.]”). He does not renew his claim related to 24 C.F.R. § 880.607 on
appeal; therefore, we deem it abandoned.
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
3
Combs also argues that the circuit court was biased against him in the amortization
action; however, he did not file an appeal in that case. Therefore, we do not consider that facet of
his claim further.
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additional background information pertinent to each of the issues Combs pursues
on appeal as necessary to the analysis.4
Discussion
(1) Summary judgment was appropriately granted.
¶5 The crux of Combs’ claims in his civil lawsuit against Lincoln
Manor was his allegation that Lincoln Manor fraudulently rented him a bedbug-
ridden apartment.5 Lincoln Manor subsequently moved for summary judgment
arguing that Combs failed to adequately support his claims that Lincoln Manor
misrepresented or omitted facts related to the safety or habitability of the
apartment complex or injured him in any way. Lincoln Manor additionally argued
that a bedbug addendum Combs signed before entering into the lease precluded
liability.
¶6 Combs moved the circuit court to dismiss Lincoln Manor’s summary
judgment motion, asserting that it was untimely. The court allowed the summary
judgment motion to proceed, despite Combs’ argument that it was untimely, and
afforded Combs additional time to respond to the motion.
4
On appeal, Combs presents three overarching issues with numerous sub-issues. To the
extent we have not addressed an argument raised by Combs, the argument is deemed rejected.
See State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978) (“An
appellate court is not a performing bear, required to dance to each and every tune played on an
appeal.”).
5
In his complaint, Combs alleged the following causes of action: misrepresentation
under WIS. STAT. § 895.446, which provides a civil remedy for a violation of WIS. STAT.
§ 943.20(1)(d) (theft-by-fraud); a violation of WIS. ADMIN. CODE § ATCP 134.04(2)(b)4.
(through Oct. 2021) relating to code violations and conditions affecting habitability; fraudulent
representation, see WIS. STAT. § 100.18(1); and injury to his person, see WIS. STAT. § 893.54.
4
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¶7 At the summary judgment hearing, the circuit court told Combs that
there was nothing in the record to “indicate that when you engaged in your lease in
2017 … that Lincoln [Manor] had any knowledge of the existence of [a] bed[]bug
infestation occurring or existing, one, in that building, or that was active and that,
as such, they had a duty to disclose it to you.” The court went on to explain that
the material presented indicated that for eighteen months after Combs rented his
apartment, there were no bedbugs in existence, which “corroborates the position of
[Lincoln Manor] that they had no knowledge of active bed[]bugs in that situation.”
The court granted summary judgment to Lincoln Manor and Combs appealed.
a. Combs waived his objections to the discovery responses.
¶8 Combs now argues that summary judgment should not have been
granted to Lincoln Manor because Lincoln Manor did not properly comply with its
discovery requirements. He asserts that Lincoln Manor failed to provide relevant
evidence regarding the existence of a bedbug infestation within the building where
his apartment was located.
¶9 During the proceedings in his civil lawsuit, Combs moved to compel
discovery from Lincoln Manor. At the hearing on the motion to compel, Combs
told the circuit court that the parties had come to an agreement that Lincoln Manor
would provide him with documentation that he sought. In response, the circuit
court asked Combs “to the … extent that [Lincoln Manor] provide[s] you that
information, this present motion becomes moot. Is that correct?” Combs
confirmed that the court was correct.
¶10 Lincoln Manor later informed the circuit court there was no longer a
discovery dispute between the parties and that a previously scheduled status
conference to address discovery was unnecessary. In a letter to the court, Combs
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Nos. 2019AP638
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separately asked the court to cancel the status conference because “there is no
necessity for the [h]earing.” With this representation, we conclude that Combs
waived further objections to the discovery responses provided by Lincoln Manor.
See Brunton v. Nuvell Credit Corp., 2010 WI 50, ¶38, 325 Wis. 2d 135, 785
N.W.2d 302 (noting that waiver is shown “when a party’s conduct is ‘so
inconsistent with a purpose to stand upon one’s rights as to leave no room for a
reasonable inference to the contrary’”) (citation omitted).
b. Lincoln Manor made a prima facie case for summary judgment.
¶11 Next, Combs argues that summary judgment should not have been
granted because he met his burden of proof. He suggests that the circuit court
incorrectly applied the summary judgment methodology. Combs is wrong.
¶12 We independently review a grant of summary judgment, using the
same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264, ¶6,
306 Wis. 2d 513, 743 N.W.2d 843. In so doing, we may benefit from the
reasoning and analysis of the circuit court. See AccuWeb, Inc. v. Foley &
Lardner, 2008 WI 24, ¶16, 308 Wis. 2d 258, 746 N.W.2d 447. Summary
judgment is appropriate where the “pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” WIS. STAT. § 802.08(2).
¶13 The summary judgment methodology requires the moving party to
put forth a prima facie case for summary judgment. “To make a prima facie case
for summary judgment, a moving defendant must show a defense that would
defeat the plaintiff.” See Tews v. NHI, LLC, 2010 WI 137, ¶4, 330 Wis. 2d 389,
793 N.W.2d 860. “A prima facie case is established only when evidentiary facts
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Nos. 2019AP638
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are stated which[,] if they remain uncontradicted by the opposing party’s
affidavits[,] resolve all factual issues in the moving party’s favor.” Walter
Kassuba, Inc. v. Bauch, 38 Wis. 2d 648, 655, 158 N.W.2d 387 (1968). If such a
showing has been made, “the court must examine the affidavits and other proof of
the opposing party to determine whether a genuine issue exists as to any material
fact or whether reasonable conflicting inferences may be drawn from undisputed
facts.” Tews, 330 Wis. 2d 389, ¶4.
¶14 All of Combs’ claims hinged on his allegation that Lincoln Manor
failed to disclose or made fraudulent representations regarding what he believed
was an ongoing bedbug infestation occurring within the apartment building where
he rented an apartment. Lincoln Manor made a prima facie case for summary
judgment by submitting the bedbug addendum that Combs signed, which
confirmed that he had inspected the apartment and did not observe any evidence of
bedbugs when he signed the lease. In both his complaint and in an affidavit,
Combs acknowledged signing the bedbug addendum. Combs additionally
admitted that he did not experience any issues with bedbugs until approximately
eighteen months after he moved into the apartment.
¶15 Combs, however, contends that he met his burden to prove the
existence of a genuine issue of material fact by presenting an invoice for bedbug
removal—from a different apartment unit—dated approximately eighteen months
before Combs rented his apartment.6 Proof that bedbugs were located in a
6
During the summary judgment hearing, there was a question as to whether the unit was
in the same building as Combs’ apartment. The address of Combs’ apartment was 5811 16th
Street (Apartment 236). The invoice Combs submitted references an address of 5801 16th Street
(Apartment 132). During the hearing, Combs told the circuit court that the address listed on the
invoice was the building where Lincoln Manor’s office was located, but that the unit identified
was located in the same building as his apartment on a different floor.
(continued)
7
Nos. 2019AP638
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different unit eighteen months earlier and treated by a service professional at that
time does not, however, create a genuine issue of material fact as to Combs’
claims that Lincoln Manor knew that a bedbug infestation existed in his apartment
at the time Combs entered into the lease.
¶16 We also reject Combs’ argument that the circuit court committed
plain error when it took judicial notice of the information about the etymology of
bedbugs that Combs asked the circuit court to consider before ruling on the
summary judgment motion. In his reply brief, Combs asserts that the source of his
frustration is not that the court took notice of the article but rather that the court
“did not apply the knowledge contained within it, in adjudicating this case,
[instead] choosing to cite what [the court] wanted from the article, to the detriment
of [Combs’] case.” Combs cannot ask the circuit court to consider information
only to then argue on appeal that the court erred when it considered the
information in a way that did not favor him. See generally State v. Gove, 148
Wis. 2d 936, 944, 437 N.W.2d 218 (1989) (noting that “[i]t is contrary to
fundamental principles of justice and orderly procedure to permit a party to
assume a certain position in the course of litigation which may be advantageous,
and then after the court maintains that position, argue on appeal that the action was
error”).
Combs averred in his own affidavit submitted in opposition to the motion for summary
judgment that the invoice related to an apartment in his building, which he learned about after
talking with another tenant who provided him with the invoice; however, this was insufficient.
The invoice related to work performed long before Combs rented his apartment and the averment
appears to have been made without the requisite personal knowledge. See WIS. STAT.
§ 802.08(3) (Affidavits in support of, or in opposition to, a motion for summary judgment “shall
be made on personal knowledge and shall set forth such evidentiary facts as would be admissible
in evidence.”). For purposes of this appeal, however, even if we assume without deciding that the
invoice related to an incident of bedbugs in the same building where Combs’ apartment was
located, Combs’ claims still cannot survive summary judgment.
8
Nos. 2019AP638
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¶17 After referencing the information about bedbugs that Combs
submitted, the court concluded “[t]here’s not one piece of evidence here that
indicates that [indications of the presence of bedbugs] existed in March of 2017,”
when Combs signed the lease and bedbug addendum. Following our de novo
review, we likewise conclude that because Combs failed to present evidence
rebutting Lincoln Manor’s prima facie case, summary judgment was appropriately
granted.7
(2) Combs’ eviction was legal.
¶18 We begin with a brief overview of the sequence of events leading up
to the eviction action. On February 15, 2019, after he filed his civil lawsuit
against Lincoln Manor, Combs filed a voluntary amortization of debts proceeding
under WIS. STAT. ch. 128 in Racine County case No. 2019CV860.
¶19 On February 20, 2019, Lincoln Manor served Combs a five-day
notice, informing him his tenancy would be terminated if he failed to pay $2,773
by February 28, 2019. Then, on March 6, 2019, Lincoln Manor filed an eviction
action against Combs because he was several months behind on rent.
¶20 Combs subsequently moved to dismiss the eviction action, asserting
that Lincoln Manor was barred from proceeding based on his pending
7
Insofar as Combs additionally argues that Lincoln Manor was required to rebut the
evidence he submitted in his summary judgment response brief, he incorrectly applies the
summary judgment methodology. Combs argues that WIS. STAT. § 903.01 places the burden on
Lincoln Manor to prove “the nonexistence of the presumed fact is more probable than its
existence.” Combs is wrong. Because Lincoln Manor made a prima facie case, Combs then had
the burden to produce sufficient evidence that a genuine issue exists as to a material fact or that
reasonable conflicting inferences can be drawn from the undisputed facts. See Tews v. NHI,
LLC, 2010 WI 137, ¶4, 330 Wis. 2d 389, 793 N.W.2d 860.
9
Nos. 2019AP638
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amortization action. Combs additionally argued that the eviction was retaliatory
and that the notice provided by Lincoln Manor was improper under 24 C.F.R.
§ 880.607.
¶21 The circuit court disagreed and denied Combs’ motion to dismiss,
issued a writ of restitution of the premises, dismissed Lincoln Manor’s damages
claims without prejudice,8 and closed the eviction case. The circuit court denied
Combs’ subsequent motion for reconsideration and his motion seeking a stay.
¶22 On appeal, Combs continues to argue that because he filed a
voluntary amortization of debts prior to the eviction filing, Lincoln Manor was
legally barred from seeking an eviction. The application of a statute to a set of
facts is an issue we decide de novo. See State v. P.G. Miron Constr. Co., 181
Wis. 2d 1045, 1052, 512 N.W.2d 499 (1994).
¶23 WISCONSIN STAT. § 128.21(2) does not apply because an eviction is
not an “execution, attachment[,] or garnishment” of a debt, but is instead the
recovery of a possessory interest in real property.9 See WIS. STAT. § 799.40
8
The circuit court ordered that the damages claims could be raised in the amortization
proceeding.
9
WISCONSIN STAT. § 128.21, the statute addressing the voluntary proceedings by wage
earners for the amortization of debts, provides:
(continued)
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(providing that an eviction action “may be commenced by a person entitled to the
possession of real property … to remove therefrom any person who is not entitled
to either the possession or occupancy of such real property”). Consequently,
Combs’ argument fails.
¶24 Combs also contends that the eviction action was retaliatory and, as
such, should have been barred. Pursuant to WIS. STAT. § 704.45(2), it is not
retaliatory for a landlord to take possession of a premises when rent has not been
paid. Given that Combs admits to withholding rent for months, we conclude that
this argument is meritless. In so concluding, we reject Combs’ argument that he
was justified in withholding his rent payments by principles of “equity” and
“fairness” after learning that a tenant in a different unit eighteen months earlier
(1) Any person whose principal source of income consists of
wages or salary may file a verified petition with the circuit court
in the county of his or her residence stating that the person is
unable to meet current debts as they mature, but is able to make
regular future payments on account sufficient to amortize the
debts over a period of not more than 3 years, and that he or she
desires the aid of the court to effectuate the amortization. The
petition shall also set forth the names and addresses of any
creditors who have levied any executions, attachments or
garnishments, and of any garnishees, and the court shall
forthwith, by order, require that proceedings for the enforcement
of the executions, attachments or garnishments be stayed during
the pendency of proceedings under this section. The petition
shall be accompanied by the fee prescribed in [WIS. STAT.
§] 814.62(2).
(2) After the filing of a petition under this section and until
the dismissal of the proceedings, no execution, attachment or
garnishment may be levied or enforced by any creditor seeking
the collection of any claim which arose prior to the proceedings,
unless such claim is not included by the debtor in the claims to
be amortized.... With respect to the claims to be amortized the
time between the filing of the petition and the dismissal of the
proceedings shall not be counted as a part of the period of any
statute of limitation.
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purportedly had a bedbug infestation. The eviction was not an unlawful act of
retaliation.
(3) The circuit court was not biased against Combs.
¶25 Lastly, Combs claims the circuit court was biased against him in the
eviction proceeding, the civil lawsuit, and the initiation of this appeal. “Whether a
judge was objectively not impartial is a question of law that we review
independently.” State v. Herrmann, 2015 WI 84, ¶23, 364 Wis. 2d 336, 867
N.W.2d 772 (citation omitted). “There is a presumption that a judge has acted
fairly, impartially, and without prejudice. The presumption is rebuttable, placing
the burden on the party asserting the bias to show that bias by a preponderance of
the evidence.” Id., ¶24 (internal citation omitted).
¶26 Combs’ claims of judicial bias appear to be premised on his
dissatisfaction with the adverse rulings against him and various remarks by the
circuit court that Combs asserts were rude or designed to hurry him through his
arguments. “First, judicial rulings alone almost never constitute a valid basis for a
bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). As
for judicial remarks, even those made “during the course of a trial that are critical
or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily
do not support a bias or partiality challenge,” and bias is not demonstrated by “[a]
judge’s ordinary efforts at courtroom administration[.]” Id. at 555-56. Rather, the
challenged remarks must “reveal such a high degree of favoritism or antagonism
as to make fair judgment impossible.” Id. at 555. Such is not the case here.
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By the Court.—Orders affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
13