Repraesentant te, non citant exemplo vel scire civile procedendi, et reddere $ 6,432 ad trans.

When you have a medical problem, you call a doctor.

When you want a fancy meal, you go to a restaurant that employs a chef.

When your tooth hurts, you call a dentist.

And when someone comes to repossess your daughter's car and you think they don't have the right to do that, you tear up their paperwork, take their keys, and then sue them in small claims all without every consulting a lawyer to see whether there might be a right way to do this.

People who try to avoid hiring a lawyer often end up paying legal fees anyway, and that's what happened to Harry Wait, who had to pay $6,432 to the other side after he lost his temper, then lost his case, when his daughter's car was almost towed away, in Wait v. Jones, an unpublished opinion just released by the Court of Appeals.

The facts of this case are sparse, and the law is sparser, so it's probably a good thing that it's unpublished because it seems like what happened here is a guy didn't know much about the law, and the Courts didn't bother providing him the benefit of the law, and so he lost, and he probably (maybe?) shouldn't have.

Here's what the opinion tells us:

The material facts are undisputed. PLS contracted with Davidson Towing to repossess a vehicle owned by Wait's niece, Nicole Szczerba. When Jones, co-owner of Davidson Towing, arrived at the Szczerba business property and began the repossession, Wait and others objected and attempted to stop Jones from towing the vehicle. A conflict ensued, during which Jones's repossession paperwork was torn up and Wait took the keys for the tow truck. Jones testified at trial that he was locked in the tow truck and, concerned for his safety, he called 911. Wait ultimately was cited for disorderly conduct. Jones never removed Szczerba's vehicle from the property. 

Wait filed suit in small claims court against Jones, Davidson Towing and PLS, alleging that "[d]efendants engaged in an illegal act of repossession, causing financial cost and time to plaintiff." The circuit court granted PLS's motions for judgment on the pleadings and sanctions. Jones and Davidson Towing had not moved for judgment on the pleadings, so the court set a date for trial on Wait's remaining claims against them and also to determine the amount of sanctions for PLS. Wait moved for reconsideration, and the court denied the motion. 

  Wait represented himself at trial; Jones represented himself and Davidson Towing. The court found that Jones would have left the property if he had had the truck keys, that, under Wisconsin's self-help repossession statute, Jones was authorized to repossess the vehicle from the property, that Jones properly stopped his effort to repossess the vehicle once Wait and others objected, and that there were no damages because "the repossession never occurred. The vehicle is still there ...." The court dismissed the case against Jones and Davidson Towing. At the hearing on the amount of sanctions held immediately before the trial, the court ordered Wait to pay $6432.02 in costs and attorney fees to PLS. 

PLS is the main defendant, and it moved for judgment on the pleadings, arguing that there Wait had no standing because it was his daughter's car and because he didn't allege that he owns the property that was the subject of a trespass.

Wait apparently had served (but not filed) something called "Causes of Action," in which he fleshed out the facts; it's apparent that the trial court did not have that document.  The Court of Appeals, and apparently PLS' lawyer, had that, though, and it's not clear why PLS' counsel didn't make known to the Court the existence of a "causes of action" document that seemingly fleshed out the complaint (parties must always SERVE everything they file, and it must be served prior to filing, except for case-initiating documents; but parties need not immediately file everything they serve, and failing to FILE a document is rarely considered prejudicial if it has been served.)

(In other words, PLS had been SERVED a pleading that it never told the Court about? Maybe. The opinion isn't clear.)

In any event, the trial court agreed that Wait had no standing, as it was not his car and not his property.

Which is problematic, for two reasons -- and maybe three.

REASON ONE: Missing from the case opinion I saw was the word Zehetner, which means something to consumer lawyers, if not the people/judges/lawyers involved in the Wait case.  "Zehetner" specifically means "Zehetner v. CHRYSLER FINANCIAL CO., LLC., 272 Wis.2d 628, 2004 WI App 80, 679 N.W.2d 919 (Wis. App., 2004)," and in that case the Court of Appeals in a published (and therefore binding on everyone) decision said the Wisconsin Consumer Act confers standing on not just customers, but also persons injured by the violation of the Act, and that because customer and person were broadly defined, Zehetner had standing to sue Chrysler after signing a credit application as a "fiancee" and then getting sued on the resultant agreement that she did not sign; the Court reasoned that Zehetner as a live-in fiancee had sought credit for family purposes, and that she was a person injured under 427, and so had standing to sue.

Zehetner is clearly applicable to Wait and needs to either be followed (Wait would have standing?) or distinguished (He wouldn't, because...).  But the opinion inexplicably fails to mention it.  I don't know if the circuit court failed to mention Zehetner, but I do know that it wasn't mentioned in the respondent's brief.

Is it possible Wait had standing under Zehetner? Sure it is: It was his daughter's car, on the property of the company he apparently had some interest in (or may have).  We may never know, though, because nobody involved in the case bothered to reference Zehetner, or the liberal rules of standing under the Wisconsin Consumer Act.  (PLS' argument on standing was confined to whether Wait was a "customer" and did not mention Zehetner.)

(I'm not saying that PLS had to concede standing, but the rules imposed on lawyers clearly require that they at least acknowledge case law that contradicts or appears to contradict they're position, if they are aware of that case law.)

REASON TWO:  Nobody bothered to read the statute involving when someone claims that the person suing isn't the person who ought to be suing.  Here, the argument wasn't that NOBODY had standing; it was that Wait's daughter should be the one suing, which brings up the little matter of a certain statute:

Sec. 803.01: Parties plaintiff and defendant: Capacity: (1)  Real party in interest. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

Which seems to say that the circuit court should not have dismissed the action unless and until Wait's daughter had a chance to sub in, or maybe the corporation could have subbed in and appeared by Wait on the trespass claims, but either way, No action shall be dismissed sounds mandatory and yet... that statute was not mentioned in the Opinion, or in the Respondent's brief.

REASON THREE:  a/k/a the secret hidden reason why this all didn't matter: Maybe Wait had to pay $6400 in attorney's fees to PLS, and lost his case against the other two, but it ALL DIDN'T MATTER IN THE LONG RUN AND ONLY SERVED TO WASTE TIME AND MONEY.

(Assuming you think paying a lawyer for a pointless case is a waste of money.)

Here's why: Wait's daughter, if she didn't ratify Wait's action, would still presumably have claims against PLS (if they were valid; I don't know if they were) and could sue.  The corporation that Wait didn't allege an ownership interest in could still sue for trespass-- which is why the statute says you should wait to dismiss a case, because you're not doing anything, really, by getting rid of a guy with no standing to sue; he has no standing and so he can't bind the other parties to the action. 

But if any of those people want to pursue those claims, they'd be well advised to get someone other than Wait to do it for them.

In law, it's all about the footwear.

This is a Sponsored post written by me on behalf of Famous Footwear for SocialSpark. All opinions are 100% mine.

For a while there, I was wearing work shoes that I was NOT proud of.

Work shoes are kind of a pain for me to have to get.  I don’t want to pay a lot for shoes because, well, they’re shoes, and I don’t want to pay a little for shoes because I have to look nice because if you’re going to charge people thousands of dollars to talk you’d better have a pair of nice-looking shoes.

(That’s what they teach you in law school.)

Anyway, I bought this pair of black shoes recently at some crummy store and almost instantly regretted it.  They were kind of ill-fitting and then the sole cracked so if it was wet my feet would get wet and they looked shabby and I was embarrassed to be seen in them.  Not so embarrassed that I didn’t charge people thousands of dollars, but still…

And, I need more than one pair of work shoes because apparently if your outfit is predominantly brown you have to wear brown shoes and if it’s mostly blue or black you wear black shoes and if it’s gray and you have a green shirt on, well, then everyone’s going to talk.

You get the point.  Right now, I’ve got just the one pair of work shoes, but I may have found a solution, because Famous Footwear is having their back-to-school sale.  And that’s the kind of thing I need: Buy-one-get-one pairs of shoes, 15% off on all shoes (20% if I join their Rewards club and get points for every purchase and qualify for up to $100 a year in discounts and stuff) and if they don’t have the exact shoes I want, I can get them delivered to me at home.

Even better: Famous Footwear’s so easy to shop at that in 20 minutes I can get three pairs of shoes, so I don’t lose billable hours.  OR BETTER: I can shop at www.famous.com, and have the shoes delivered to the store near me and save even MORE time.

So goodbye bad shoes that don’t fit and look terrible, and hello shoes that match whatever outfit I’m wearing, even the one with the red shirt!

Oh, and they’ll give me a coupon to help me save money: BOGO + 15% off Famous Footwear Coupon  So there’s that, too!

Just to explain the joke in advance: The Queen is WAVING. It's a pun.

Can you waive a waiver of a claim of waiver?

My gosh, I love my job!

That intriguing question came to mind as I read the case of Baytree Natl Bank & Trust Co. v. Watring, an unpublished (can we please do away with that now that circuit courts are just letting lawyers argue unpublished cases anyway) decision just released by the Court of Appeals.

In a nutshell, here's what happened:  The Watrings borrowed money for a construction project, and then didn't pay it back.  So the Bank extended the loan and extended the loan and forbearanced the loan and then sued for foreclosure.

The Watrings then counterclaimed for breach of the good faith duty and negligent misrepresentation, both stemming from the Watrings' claims that the Bank refused to finance qualified buyers for their project.

Ultimately, the Court of Appeals upheld the circuit court's decision granting summary judgment and dismissing the counterclaims, ruling in part that guidelines the Bank gave for approving buyers could not have proven part of the breach of duty of good faith because the guidelines came out after the deal, a ruling I don't really understand.  The Court decided that you had FIRST, contract, THEN promise to do certain things pursuant to the contract, and that because they came in that order, the THEN didn't modify, illuminate, or shape the FIRST, but that doesn't make any sense.  Consider: I promise to sell you my car.  You say "Okay, here's $1,000." I say "OK, I'll deliver it tomorrow once I get my CDs out of it" and then I don't.

Does my promise to deliver it tomorrow affect whether I have breached the contract to sell you my car?  I think it does.

(As always, almost every problem in law can be seen clearly if you put it in the context of a car accident or car sale.)

Anyway, the really fascinating part of Baytree is that opening question.  The Watrings, remember, signed a forbearance on the loan, one which resolved all outstanding claims they had at the time.  So when they sued, Baytree could have simply said as an affirmative defense in reply "Nope: Waived those claims." BUT IT DIDN'T.

So: problem, right? Because waiver is an 802.06 defense which is waived if not raised in the first responsive pleading.

Baytree then could have moved for summary judgment on the forbearance.  BUT IT DIDN'T.

Baytree didn't bring the forbearance up until it's REPLY on summary judgment, at which point the Watrings for some reason (apparently) thought "Hey, they've got that forbearance thing, we ought to ignore it," and didn't bother to respond, which didn't matter because the circuit court didn't rule on the forbearance at that summary judgment hearing, but did give judgment to Baytree, leaving the counterclaims alive.

Baytree then moved for summary judgment on the counterclaims, bringing up the forbearance AGAIN, and again the Watrings ignored it entirely, as did the circuit court, granting summary judgment on THOSE claims, too.

(May I point out that the very idea of two summary judgment motions belies the name summary judgment? Circuit courts: get a handle on summary judgment, which is often more expensive and time-consuming than a trial would be.  I say: ONE summary judgment motion per case, tops.)

(And don't get me started on partial summary judgment.)

The Watrings then appealed, but didn't bother mentioning the forbearance at all until their reply brief, when they finally said something about it.

So that's the background: Baytree is required by statute to have raised the forbearance/waiver issue at the first pleading, but Watring never bothered pointing that out, and so ultimately, the Court of Appeals said that Watrings couldn't rely on the failure-to-plead defense, because they'd waived the claim that the waiver claim was waived.

I came up with that line, not the Court of Appeals.

Which on the one hand is an okay ruling because you shouldn't be allowed to get a benefit from waiving your claims and then suing on them anyway, having your cake and eating it too, but on the other hand, why have a statute at all if you're not going to follow it?