Earnest E. Creech v. Anita Moore

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.
September 24, 2019
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. 2019AP233 Cir. Ct. No. 2018SC39064

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

EARNEST E. CREECH,

PLAINTIFF-APPELLANT,

V.

ANITA MOORE,

DEFENDANT-RESPONDENT.

APPEAL from a judgment of the circuit court for Milwaukee
County: LAURA GRAMLING PEREZ, Judge. Reversed and cause remanded
with directions.

¶1 BRASH, P.J.1 Earnest E. Creech, pro se, appeals from a judgment
entered by the trial court in resolution of his small claims case against Anita

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(a) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP233

Moore. Creech had filed the underlying action seeking the return of several items
of personal property. The trial court issued a judgment of replevin in favor of
Creech for one of the items; Creech subsequently filed this appeal seeking the
items that were not awarded to him.

¶2 Moore did not respond. This court ordered her to do so, stating that
a respondent’s brief was necessary for the resolution of this appeal, and that her
failure to file a respondent’s brief would constitute her abandonment of this
appeal. We further informed Moore that her failure to file the brief could result in
sanctions being imposed against her, including summary reversal of the trial
court’s decision that was in her favor, pursuant to WIS. STAT. RULE 809.83(2).
Still, Moore never filed a respondent’s brief.

¶3 We conclude that Moore has abandoned this appeal. Therefore, we
exercise our discretionary power to impose the sanction of summary reversal of
that portion of the trial court’s decision in Moore’s favor, pursuant to WIS. STAT.
RULE 809.83(2). Accordingly, we reverse and remand this matter to the trial court
to enter a judgment of replevin for the remaining items of personal property that
Creech was seeking to obtain from Moore.

BACKGROUND

¶4 The record before us on this matter is relatively sparse. Creech filed
a small claims complaint in November 2018, explaining that he had moved to
Milwaukee after his wife passed away in October 2018. While he searched for a
place to live, he left several items at the home of Moore, his stepdaughter: an urn
containing his wife’s ashes, his dog, and a seventy-inch television. He alleged that
after he found a home, he tried to get those items back from Moore, but she would
not return them.

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No. 2019AP233

¶5 The trial court held a hearing on the matter on January 22, 2019.
The court entered a judgment of replevin for the urn containing the ashes, but
denied Creech’s request for return of the dog and the television. We have no
information regarding the court’s reasoning for its decision, as a transcript of the
hearing was not included with the record.2

¶6 Creech then filed this appeal.3 Moore did not file a respondent’s
brief within the statutory time frame. This court ordered her on May 6, 2019, to
either respond or file a request for an extension; Moore did not respond. This
court then, on its own motion, granted Moore an extension of time to file her brief;
Moore again did not respond.

¶7 Subsequently, this court issued an order on July 18, 2019, advising
Moore that her response brief was necessary for the resolution of this appeal and
that her failure to file such brief would constitute the abandonment of this appeal.
We further informed Moore that, pursuant to WIS. STAT. RULE 809.83(2) and
Raz v. Brown, 2003 WI 29, 260 Wis. 2d 614, 660 N.W.2d 647, her failure to file
the brief could result in sanctions being levied against her, including the summary
reversal of the portion of the trial court’s decision that was in her favor. Still,
Moore never filed a respondent’s brief. We then advised the parties on August 22,
2019, that this matter was being submitted for a decision.

2
The record contains a Statement on Transcript signed and filed by Creech on January
24, 2019, in which he stated that “[a]ll transcripts necessary for this appeal are already on file”;
however, no transcript was included in the record.
3
Creech had some difficulties in complying with the rules of appellate procedure with
regard to the filing and format requirements for his brief. However, after corresponding with this
court to resolve the problems, Creech ultimately submitted a brief that was accepted by this court.

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No. 2019AP233

DISCUSSION

¶8 The timely filing of a respondent’s brief is required under the rules
of appellate procedure. WIS. STAT. RULE 809.19(3). Failure to comply with the
rules or with a court order “is grounds for dismissal, summary reversal … or other
action as the court considers appropriate.” WIS. STAT. RULE 809.83(2). Indeed,
this court may grant summary reversal of a trial court’s order as a sanction upon “a
finding of bad faith, egregious conduct, or a litigant’s abandonment of the appeal.”
Raz, 260 Wis. 2d 614, ¶18. In imposing such a sanction, we do not reach the
merits of the appeal. See State ex rel. Blackdeer v. Township of Levis, 176 Wis.
2d 252, 258, 500 N.W.2d 339 (Ct. App. 1993).

¶9 We explained to Moore in our orders that a respondent’s brief was
required to resolve this appeal, and provided her with numerous opportunities—
over the span of several months—to file that brief. We further informed her that
her failure to comply could result in the imposition of sanctions, including the
summary reversal of the judgment of the trial court that allowed for her to keep the
dog and the television. Not only did Moore not respond to this court’s orders, she
never corresponded with this court at any time regarding this case. We therefore
conclude that Moore has abandoned this appeal. See Raz, 260 Wis. 2d 614, ¶32.

¶10 “‘Failure to file a respondent’s brief tacitly concedes that the trial
court erred.’” See Blackdeer, 176 Wis. 2d at 260 (citation omitted). As a result,
“‘[w]e may summarily reverse a judgment or order if the respondent fails to file a
brief … and we usually do.’” Id. (citation omitted); see also WIS. STAT. RULE
809.83(2). Put another way, “a common sense abandonment of an appeal provides
sufficient reason for imposing the drastic sanction of summary reversal.” Raz, 260
Wis. 2d 614, ¶32.

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No. 2019AP233

¶11 We believe that summary reversal is an appropriate sanction for
Moore’s abandonment of this appeal. See WIS. STAT. RULE 809.83(2). We note
that the missing transcript and the deficiencies of Creech’s brief would render a
review of this case on the merits extremely difficult; however, summary reversal
as a sanction against Moore for abandoning this appeal does not require us to
reach the merits. See Blackdeer, 176 Wis. 2d at 258. Furthermore, we observe
that Creech—a pro se litigant—made good faith efforts to comply with appellate
procedures and correct problems with his submissions; on the contrary, Moore
failed to acknowledge this appeal, even after being repeatedly ordered by this
court to file a response. This lack of acknowledgement and noncompliance with
orders of this court is “sufficient reason for imposing the drastic sanction of
summary reversal.” See Raz, 260 Wis. 2d 614, ¶32.

¶12 Accordingly, we reverse and remand this matter to the trial court to
enter a judgment of replevin for the dog and television in favor of Creech, and
issue a writ of replevin for seizure of those items from Moore, with delivery of the
same to Creech.

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

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

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