Dennis Braun v. Michael Braun

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 11, 2024
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. 2023AP1997 Cir. Ct. No. 2023SC1174

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

DENNIS BRAUN,

PLAINTIFF-RESPONDENT,

V.

JENNIFER SAMUELS AND MICHAEL BRAUN,

DEFENDANTS-APPELLANTS.

APPEAL from a judgment of the circuit court for Walworth County:
DANIEL S. JOHNSON, Judge. Affirmed.
No. 2023AP1997

¶1 LAZAR, J.1 Jennifer Samuels and Michael Braun (“the tenants”)
appeal from a judgment of the circuit court for eviction in an action brought by
Michael Braun’s father, Dennis Braun. This court affirms.

¶2 On July 5, 2023, Dennis Braun sent a “Twenty-Eight Day Notice
Terminating Tenancy” to the tenants by certified mail. The notice required the
tenants to vacate the premises—a house in Elkhorn—no later than August 31,
2023. They did not move out, and Dennis Braun filed an eviction action against
them on October 2, 2023. The tenants appeared in court on October 19, the date
designated on their summons for them to appear or file an answer. After the court
commissioner entered a judgment against them, the tenants immediately filed a
“Motion to Reconsider in front of an Actual Judge.” Later on the same day of
their appearance, the court issued a notice for a hearing on October 23.

¶3 At the October 23 hearing before the Honorable Daniel S. Johnson,
the tenants argued that Dennis Braun was not their landlord but rather that Michael
Braun had given his father roughly half of the purchase price of the home at issue
($150,000 of the approximately $300,000 purchase price) in cash and that Michael
was therefore part owner of the home. In an attempt to prove this, the tenants
called Michael Braun’s son as a witness. He testified that he had seen his father
give his grandfather the cash but stated that the money was for repairs and
improvements to the house. Michael Braun admitted that he gave the money to
his father after his father had bought the house but insisted it was money for the
purchase of the property and provided a receipt that had been written by him and

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.

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No. 2023AP1997

purportedly signed by his father to that effect. Dennis Braun denied that it was his
signature on this receipt and that he had ever received $150,000 from his son for
any purpose. Michael Braun sought to call his daughter as an additional witness
regarding the payment to his father, but the circuit court did not allow her to testify
after Michael Braun responded to the court’s request for an “offer of proof
regarding what she’d say” by saying it would be the “[s]ame thing” as his son.

¶4 In addition to arguing about ownership of the Elkhorn property, the
tenants argued that their twenty-eight-day notice was defective because they did
not sign for its receipt. The circuit court found the notice sufficient and that
Dennis Braun was the rightful owner of the house before granting judgment of
eviction against the tenants.

¶5 The tenants appeal. Despite two orders from this court directing
Dennis Braun to file a response and warning him that failure to do so may be
grounds for summary reversal, Dennis did not file anything in the appeal. We
have discretion to summarily reverse where the failure to file a response
constitutes “egregious conduct, bad faith, or a litigant’s abandonment of the
appeal,” Raz v. Brown, 2003 WI 29, ¶¶3, 14, 260 Wis. 2d 614, 660 N.W.2d 647,
but we decline to do so here. It is the appellants’ burden to convince this court
that the circuit court erred, see Gaethke v. Pozder, 2017 WI App 38, ¶36, 376
Wis. 2d 448, 899 N.W.2d 381, and they have failed to meet this burden.

¶6 The tenants make three arguments. The first is that they were given
improper notice of the October 23 hearing before the circuit court, which, they

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No. 2023AP1997

assert, had to consist of at least five days pursuant to WIS. STAT. § 801.15.2 The
tenants provide no authority for the application of § 801.15 to the request that they
themselves made for a hearing before a circuit court judge. Eviction actions are
governed by WIS. STAT. ch. 799, and WIS. STAT. §§ 801-847 only apply to
evictions when other procedures are not prescribed by statute or rule. See WIS.
STAT. §§ 799.01(1)(a), 801.01(2). WISCONSIN STAT. § 799.206(3) does, in fact,
provide another procedure and timeline for hearings in eviction actions:

When all parties appear in person or by their attorneys on
the return date in an eviction, … and any party raises valid
legal grounds for a contest, the matter shall be forthwith
scheduled for a hearing, to be held as soon as possible
before a judge and in the case of an eviction action, not
more than 30 days after the return date.

The tenants’ hearing took place “as soon as possible” after their request for the
same on their return date and within thirty days of that date; there is no basis for
reversal based on their first argument.

¶7 Next, the tenants take issue with the twenty-eight-day notice
terminating tenancy that Dennis Braun sent them by certified mail. They assert
that this notice was “fraudulent” because it was “used for one of the three prior
eviction cases that were all dismissed.” The only document in the Record related
to these previous cases is an order (dated April 11, 2023) dismissing one of them,
but the tenants allege that the three previous eviction actions brought against them
by Dennis Braun were filed on March 29, 2023; May 12, 2023; and June 5, 2023.

2
Although it does not make a legal difference, the tenants erroneously state in their
appellate brief that they appeared in court on October 20, 2023, and had only the weekend of
October 21 to 22 to secure counsel. In fact, the Record shows that they appeared on October 19,
so they also had Friday, October 20 and all of the time before that October 19 appearance to
secure representation if they wished.

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No. 2023AP1997

The tenants do not explain how the notice for the present action, dated July 5,
2023—after all previous cases were allegedly filed—was somehow fraudulent or
could be connected with a case that had previously been dismissed. Nor is there
any support in the Record for their argument that they were entitled to ninety days’
notice pursuant to WIS. STAT. § 704.19(3), which provides for a ninety-day notice
period for “all agricultural tenancies from year-to-year.” Even setting aside the
fact that the tenants did not raise this issue in the circuit court, their statement in
their appellate brief that “[t]he property is zoned A5” and that they have “horses,
cows, pigs and chickens and ducks” on it is insufficient to establish that they had a
year-to-year agricultural tenancy.

¶8 Finally, the tenants argue that the circuit court erred in refusing to
allow Michael Braun to call his daughter as a witness, asserting that this was a
denial of the tenants’ “right to a fair trial as guaranteed by the 6th Amendment of
the Constitution of the United States of America.” Under WIS. STAT. § 904.03,
the court has discretion to exclude testimony that is cumulative. See State v.
Morgan, 195 Wis. 2d 388, 444-45, 536 N.W.2d 425 (Ct. App. 1995). The court
appropriately exercised its discretion to deny Michael Braun’s daughter’s
testimony, given Braun’s statement that such testimony would consist of the
“[s]ame thing” as his son’s testimony.

By the Court.—Judgment affirmed.

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

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