Berrada Properties 66 LLC v. Chakari Lathan

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.
May 9, 2023
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. 2022AP575 Cir. Ct. No. 2022SC2014

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

BERRADA PROPERTIES 66 LLC,

PLAINTIFF-RESPONDENT,

V.

CHAKARI LATHAN,

DEFENDANT-APPELLANT,

ALL OTHER OCCUPANTS,

DEFENDANT.

APPEAL from a judgment and orders of the circuit court for
Milwaukee County: DAVID C. SWANSON, Judge. Reversed and cause
remanded with directions.
No. 2022AP575

¶1 DUGAN, J.1 Chakari Lathan (Lathan) appeals an order denying her
motion to dismiss, a judgment in favor of Berrada Properties 66 LLC (Berrada
Properties) for restitution of the subject premises, and an order for a writ of
restitution.2 On appeal, Lathan argues that Berrada Properties did not plead
sufficient facts in its original complaint, that the trial court lacked personal
jurisdiction because the complaint was not signed by a properly authorized person
or an attorney, and that Berrada Properties’ amended complaint was also
defective. This court concludes that Berrada Properties failed to plead sufficient
facts to support its eviction claim. Thus, this court reverses the order denying
Lathan’s motion to dismiss, the judgment in favor of Berrada Properties for
restitution of the subject property, and the order issuing the writ of restitution, and
remands, with directions, to grant Lathan’s motion to dismiss.3

BACKGROUND

¶2 This case involves a small claims eviction action that was filed in the
Milwaukee County Circuit Court, Case No. 2022SC2014 on January 27, 2022 by

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
This court notes that after the trial court denied Lathan’s motion to dismiss during the
hearing on the motion to dismiss, Lathan and her counsel advised the court that Lathan was
“agreeable to having the writ issued for the eviction, but staying it until March 31st, to allow
[Lathan] time to voluntarily move out before the sheriffs need to evict her.” The trial then stated
that based on the agreement of the parties, “[t]he court does issue a writ here that is stayed until
March 31st.” On that day, the court signed an order that states, “[w]rit of restitution is issued.
Stay of writ ordered to: March 31, 2022.”
3
Because this court concludes that Berrada Properties failed to plead sufficient facts to
support its eviction claim, it does not address Lathan’s argument that the trial court lacked
personal jurisdiction because the complaint was not signed by a properly authorized person or an
attorney. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (“[C]ases
should be decided on the narrowest possible ground.”).

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No. 2022AP575

Berrada Properties. The summons and complaint were “electronically signed by
“Jerri Burt – Agent for the Plaintiff.” An authorization to commence, prosecute,
defend, appear, and act by Jerri Burt as an agent of Berrada Properties was also
filed on January 27, 2022. It was dated November 18, 2021 and signed by
“James L. Robinson, Jr. - Attorney for [Berrada Properties].”4 On February 23,
2022, an amended authorization was filed with the court, authorizing Burt to act
on Berrada Properties’ behalf in this action—the authorization was signed by
Yousssef Berrada, member [of the LLC]. The authorization did not have a date
that it was signed. On February 23, 2022, Berrada Properties also filed an
amended summons and complaint that was signed by “Attorney James L.
Robinson Jr.”

¶3 Lathan appeared in court on the return date on February 23, 2022,
and raised defenses that: (1) the court lacked personal jurisdiction over the action
because the case was initially commenced by Burt, who did not have authorization
from Berrada Properties to act as its agent, nor was he an attorney at the time the
summons and complaint were filed; and (2) the summons and complaint failed to
allege sufficient facts to support the eviction claim. After hearing arguments from
the parties, the court commissioner set the case for a contested hearing before
Judge David Swanson on March 22, 2022. At that hearing, Lathan argued that the
court lacked personal jurisdiction because the complaint was not signed by a

4
This court notes that the parties do not dispute that pursuant to WIS. STAT. § 799.06 and
§799.40, Burt was not properly authorized by Berrada Properties to act as its agent in the eviction
action. Pursuant to the statutes, Berrada Properties, not its attorney, had to authorize Burt to act
as its agent for the purposes of the small claims action. Berrada Properties does not dispute that
the when it was filed, the complaint was defective “caused by an improper authorization for an
agent to appear and act, pursuant to WIS. STAT. § 799.06.” However, it argues that the defect was
promptly cured. By contrast, Lathan argues that the trial court did not have personal jurisdiction
because of the defect and moved to dismiss on that ground.

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No. 2022AP575

properly authorized person or an attorney, and that the complaint failed to
sufficiently state a claim for eviction. Berrada Properties argued that the defect in
commencing the action was promptly cured and the complaint sufficiently pleaded
facts to support its claim for eviction.

¶4 The trial court held that although there was a fundamental defect in
the summons and complaint with regards to the unauthorized agent commencing
the action, that defect was properly curable and was cured by the return date on
February 23, 2022. As to the failure to state a claim issue, the trial court found
that the court-approved summons and complaint forms that Berrada Properties
used satisfied the notice of pleading standard and was sufficient for small claims
actions. The court stated:

The court has approved this standard form that Plaintiff is
using, for reasons discussed more fully in the other cases I
just cited to, where this Court held in 22-SC-1511, 22-SC-
1510, and 22-SC-1646. In general, the Court finds that
Plaintiff’s standard form complaint, which is also used in
this case, satisfies the standards applicable to notice
pleading, and also the general standard of informality that
applies in small claims proceedings under statute Section
799.209.

So again, the court reaches the same decision here as it did
in those other cases, and for those reasons, the Court denies
this motion to dismiss.5

Lathan’s trial counsel then informed the court that he and Berrada Properties’
counsel had discussions off the record and they agreed that the court should issue a
writ for the eviction. The CCAP entry reflects:

5
This court notes that any transcripts from those other proceedings or written decisions
in those cases are not in the record on appeal. Moreover, in this case the trial court did not orally
state during the hearing what its reasoning was in reaching its decisions in those cases. Thus, this
court is not aware of the trial court’s discussions and reasoning in deciding the issues in this case.

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No. 2022AP575

For reasons stated on the record the Court DENIES Motion
to Dismiss. The Court finds that the Plaintiff has a lawful
right to Restitution of the Premises. Based upon the record,
the Court renders Judgment in favor of the Plaintiff for
Restitution of the Premises with costs and disbursements.
Stay of Writ of Restitution Order to 3/31/2022.6

The CCAP entry also reflects that the writ of restitution was signed and filed
February 23, 2022.

¶5 Lathan now appeals.

DISCUSSION

¶6 On appeal, Lathan raises the same arguments that she raised before
the trial court—that Berrada Properties did not plead sufficient facts in the
complaint and that the trial court lacked personal jurisdiction because the
complaint was not signed by a properly authorized person or an attorney. For the
reasons stated below, this court concludes that Berrada Properties failed to plead
sufficient facts to support its eviction claim.

I. Failure to Plead Sufficient Facts for Eviction Claim

Applicable Law

¶7 This court first addresses the applicable law that applies in
determining whether a complainant sufficiently pleads facts to support the claim
alleged in the complaint. In Data Key Partners v. Permira Advisers LLC, 2014
WI 86, ¶17, 356 Wis. 2d 665, 849 N.W.2d 693, our supreme court stated that

6
We may take judicial notice of the circuit court records entered into CCAP, pursuant to
Wis. Stat. § 902.01. CCAP is an acronym for Wisconsin’s Consolidated Court Automation
Programs, and the online website reflects information entered by court staff. See Kirk v. Credit
Acceptance Corp., 2013 WI App 32, ¶5 n.1, 346 Wis. 2d 635, 829 N.W.2d 522.

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No. 2022AP575

“[w]hether a complaint states a claim upon which relief can be granted is a
question of law for independent review….” “A motion to dismiss for failure to
state a claim tests the legal sufficiency of the complaint.” Id. at ¶19 (citation
omitted). Our supreme court went on to explain that:

Upon a motion to dismiss, we accept as true all facts well-
pleaded in the complaint and the reasonable inferences
therefrom … However, a court cannot add facts in the
process of construing a complaint … Furthermore, legal
conclusions stated in the complaint are not accepted as true,
and they are insufficient to enable a complaint to withstand
a motion to dismiss … Therefore, it is important for a court
considering a motion to dismiss to accurately distinguish
pleaded facts from pleaded legal conclusions.

Id. (citations omitted).

¶8 In addition to the holdings in Data Key, this court must also consider
two statutes that apply to Lathan’s motion to dismiss the eviction complaint for
failure to state a claim. The first statute is WIS. STAT. § 802.02(1), which sets
forth the requirements for a complaint, if it is to withstand a motion to dismiss for
failure to state a claim. The statute provides as follows:

General rules of pleading

(1) Contents of pleadings. A pleading or supplemental
pleading that sets forth a claim for relief, whether an
original or amended claim, counterclaim … shall contain
all of the following:

(a) A short and plain statement of the claim, identifying the
transaction or occurrence or series of transactions or
occurrences out of which the claim arises and showing
that the pleader is entitled to relief.

Thus, under § 802.02(1), a complaint must contain “[a] short and plain statement
of the claim, identifying the transaction or occurrence or series of transactions or
occurrences out of which the claim arises and showing that the pleader is entitled

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No. 2022AP575

to relief.” John Doe 67C v. Archdiocese of Milwaukee, 2005 WI 123, ¶35, 284
Wis. 2d 307, 700 N.W.2d 180 (John Doe 67C).

¶9 In John Doe 67C, the court further explained that “[h]owever, a
complaint cannot be completely devoid of factual allegations. The notice pleading
rule, while intended to eliminate many technical requirements of pleading,
nevertheless requires the plaintiff to set forth a statement of circumstances,
occurrences and events in support of the claim presented.” Id. at ¶36 (citations
and quotations omitted). Moreover, in Data Key, our supreme court stated that
“[b]are legal conclusions set out in a complaint provide no assistance in warding
off a motion to dismiss. Plaintiffs must allege facts that, if true, plausibly suggest
a violation of applicable law.” Data Key, 356 Wis. 2d 665 at ¶21. The court
further explained that “[f]actual assertions are evidenced by statements that
describe: who, what, where, when, why, and how.” Id. at fn. 9 (citation omitted).

¶10 In addition to WIS. STAT. § 802.02(1), because this case involves an
eviction claim, this court must also consider WIS. STAT. § 799.41(1), which sets
forth the requirements for a complaint, if it is to withstand a motion to dismiss for
failure to state a claim in a small claims eviction action. That statute provides as
follows:

Complaint in eviction actions

(1) The complaint shall be in writing and subscribed by the
plaintiff or attorney in accordance with s. 802.05. The
complaint shall identify the parties and the real property
which is the subject of the action and state the facts which
authorize the removal of the defendant … A description
by street name and number is sufficient. (emphasis added).

This court concludes that the requirements set forth in §799.41(1) are consistent
with the holdings in Data Key and John Doe 67C.

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No. 2022AP575

¶11 Having set forth the law applicable to Berrada Properties’ eviction
claim, this court’s next step in its analysis is to examine the allegations in
complaint to determine if they are sufficient to support the claim for eviction.

Facts Set Forth in Berrada Properties’ Original Complaint

¶12 As noted, Berrada Properties’ original complaint was filed on
January 27, 2022. The caption identified the parties as: “Plaintiff … Berrada
Properties 66 LLC,” and “Defendant … Lathan, Chakari, et al.”7 The complaint
has several boxes that a plaintiff may check—here, the box entitled, “Eviction”
was checked. The complaint further contains the following:

1. Plaintiff’s Demand:8

1. Plaintiff demands judgement for: $TBD (This court
assumes this was typed in by Berrada Properties)

2. Eviction9

Plus interest, costs, attorney fees, if any, and such other
relief as the court deems proper.

2. Brief statement of dates and facts: (This court notes
that there is open space below this line for the plaintiff
to insert the required information)

DEFENDANT(S) SERVED WITH A TERMINATION OF
TENANCY NOTICE AND FAILED TO VACATE THE
PROPERTY

7
The summons attached to the complaint which was signed by the clerk of courts listed
the defendants as Lathan and “ALL OTHER OCCUPANTS.”
8
The complaint also contains the Spanish translation for the complaint—this court does
not include that translation.
9
This court notes that the form complaint lists several options that are not relevant to
this case that may be chosen to describe the nature of the case.

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No. 2022AP575

¶13 This court concludes that the complaint fails to sufficiently allege
facts necessary to support Berrada Properties’ claim for eviction. At most, the
complaint identifies the parties, that it involves a claim for eviction, and that there
is a claim for some unknown amount of money. It does not explain what facts the
claim for eviction is based upon. In other words it does not say why Berrada
Properties is entitle to a judgment of eviction.

¶14 Most significantly, it does not “state the facts which authorize the
removal of [Lathan].” See § 799.41(1) (emphasis added). As the form itself
recognizes, the plaintiff is required allege a “[b]rief statement of dates and facts.”
There are no dates, there are no facts regarding what kind of lease Lathan was a
party to, and more importantly, what facts authorized her removal—failure to pay
rent, breach of some term in the lease, or some other basis, and when any of those
facts occurred.

¶15 Berrada Properties argues that “the phrase ‘termination of tenancy
notice’ subsumes the termination of all types of tenancies by all types of notices
included in Chapter 704.” It then asserts that:

Thus, this statement leads to the following reasonable
inferences: 1) that a tenancy existed (lease); 2) that there
are grounds for termination (breach); 3) that a written
notice was given; and 4) that the desired relief is to have
the defendant(s) removed from the property since they
failed to vacate voluntarily after being served with a
termination of tenancy notice.

It then argues that “those inference[s] were confirmed by the fact that this matter
was before the trial court in an eviction action and a writ of restitution was
issued.” Basically, Berrada Properties is arguing that it is sufficient to allege in an
eviction complaint that there was a lease, the tenant breached the lease, and it is
entitled to evict the tenant.

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No. 2022AP575

¶16 However, this court concludes that Berrada Properties’ argument
ignores the holdings in Data Key and John Doe 67C. As noted, in Data Key, our
supreme court explained that courts accept as true reasonable inferences from “all
facts well-pleaded in the complaint … However, a court cannot add facts in
construing a complaint.” 356 Wis. 2d 665 at ¶19. Furthermore, the legal
conclusions stated in the complaint are not accepted as true, and they are
insufficient to enable a complaint to withstand a motion to dismiss.” Id. In John
Doe 67C, our supreme court also stated that “[t]he notice pleading rule, while
intended to eliminate many technical requirements of pleading, nevertheless
requires the plaintiff to set forth a statement of circumstances, occurrences and
events in support of the claim presented.” 284 Wis. 2d 307 at ¶36 (quotations
omitted). In Data Key, the court further explained that “[f]actual assertions are
evidence by statements that describe: who, what, where, when, why, and how.”
356 Wis. 2d 665 at ¶21, fn. 9 (quotations and citation omitted).

¶17 This court concludes that Berrada Properties’ complaint “requires
the court to indulge in too much speculation leaving too much to the imagination
of the court.” John Doe 67C, 284 Wis. 2d 307 at ¶36. It is completely devoid of
the what, where, when, why, and how Berrada Properties is entitled to evict
Lathan. Further, Berrada Properties’ argument would require this court to add
facts to the complaint in construing it, which this court cannot do. Basically,
Berrada Properties argues that the phrase, “DEFENDANT(S) SERVED WITH A
TERMINATION OF TENANCY NOTICE AND FAILED TO VACATE THE
PROPERTY” is sufficient in any eviction complaint, no matter what the facts are
in that case. However, if that were true, this court would have to ignore the
language in §799.41(1), that the complaint in an eviction action “shall … state the
facts which authorize the removal of the defendant” (emphasis added). The

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No. 2022AP575

facts in each case are not universally the same. If this court accepted Berrada
Properties’ argument, the complaint in each eviction action would be exactly the
same, with the exception being the name of the parties and the address of the
property.10

¶18 This court concludes that Berrada Properties’ universal standard
language does not constitute facts that authorize the removal of Lathan. Just
because it is alleged that Lathan was served with a termination of tenancy notice
and failed to vacate the property, does not mean Berrada Properties is entitled to a
judgment of eviction—it is a legal conclusion that this court does not accept as
true. See Data Key, 356 Wis. 2d 665 at ¶19. The fact that a tenant is served with a
termination of tenancy notice, does not tell the tenant or the court the what, where,
when, why, and how Berrada Properties is entitled to remove Lathan—it is not
sufficient under Wisconsin’s notice pleadings rule. Thus, this court reverses the
trial court’s decision to dismiss Lathan’s motion to dismiss, reverses the decision
granting judgment in favor of Berrada Properties for restitution of the subject
property, and the order issuing the writ of restitution.

II. Berrada Properties’ Amended Complaint

¶19 As noted above, on February 23, 2022, Berrada Properties also filed
an amended complaint signed by “Attorney James L. Robinson, Jr.” Lathan
asserts that that the amended complaint is defective because it contains the wrong
plaintiff’s name, an incorrect address for the property, and the wrong defendant.

10
See the language in Berrada Properties’ amended complaint that is addressed in the
section that follows.

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No. 2022AP575

Applicable Law

¶20 In Holman v. Family Health Plan, 227 Wis. 2d 478, 484, 596
N.W.2d 358 (footnote with citations omitted), our supreme court stated, “[w]e
begin with the oft-stated and simple rule that would appear to answer the question
posed in this case: an amended complaint supersedes or supplants the prior
complaint. When an amended complaint supersedes a prior complaint, the
amended complaint becomes the only live, operative complaint in the case….” It
further explained that “[a]n amended complaint supplants the original complaint
when the amended complaint makes no reference to the original complaint and
incorporates by reference no part of the original complaint.” Id. at 487.

Language in the Amended Complaint

¶21 The summons and complaint signed by the clerk of courts lists
Berrada Properties as the plaintiff and Lathan as the defendant and was titled,
“Amended Summons and Complaint.” However, the summons and complaint
signed by attorney Robinson, Jr. had completely different parties and a different
property address. The plaintiff is listed as “Willow Court Apartments LLC,” the
defendant is listed as “Darvin Davis, et. al.,” and his address is listed as “5314 N
Teutonia Ave, #1.” The other language in the summons and complaint was the
same as in the original complaint, as follows:

1. Plaintiff’s Demand:

1. Plaintiff demands judgement for: $TBD

2. Eviction

Plus interest, costs, attorney fees, if any, and such other
relief as the court deems proper.

2. Brief statement of dates and facts:

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No. 2022AP575

DEFENDANT(S) SERVED WITH A TERMINATION OF
TENANCY NOTICE AND FAILED TO VACATE THE
PROPERTY

As in the original complaint, the box for eviction was also checked. The amended
complaint makes no reference to the original complaint and does not incorporate
by reference any part of the original complaint.

Conclusion

¶22 Based on the facts in this case, this court concludes that Berrada
Properties’ amended complaint, filed before the trial court granted judgment in
this case, became the only live, operative complaint in this case. Moreover,
because the complaint identifies the wrong plaintiff, the wrong defendant, and the
wrong address of the property, it is defective as to Lathan. This court concludes
that because the defective amended complaint was the only live operative
complaint at the time of the motion to dismiss, the court erred in granting
judgment in favor of Berrada Properties and denying Lathan’s motion to dismiss.

¶23 This court further notes that although Lathan made her argument
regarding the amended complaint in her brief, Berrada Properties does not mention
her argument, let alone make an attempt to refute it in its response brief. Thus,
this court concludes that Berrada Properties did not refute Lathan's argument;
therefore, it considers Berrada Properties to have conceded this issue. See United
Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738
N.W.2d 578 (stating that the failure to refute a proposition asserted in a response
brief may be taken as a concession).

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No. 2022AP575

CONCLUSION

¶24 For the reasons stated above, this court concludes that Berrada
Properties failed to plead sufficient facts in its complaint to support its claim for
eviction and also failed to mention, let alone refute, Lathan’s argument that the
amended complaint was deficient and, therefore, conceded her argument. Thus,
this court reverses the trial court’s order denying Lathan’s motion to dismiss, the
judgment in favor of Berrada Properties for restitution of the subject premises, and
the order issuing the writ of restitution, and remands, with directions, to grant
Lathan’s motion to dismiss.

By the Court.—Judgment and orders reversed and cause remanded
with directions.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

14