COURT OF
APPEALS
DECISION
DATED AND FILED
November
24, 1999
Marilyn L. Graves
Clerk, Court of Appeals
of
Wisconsin
NOTICE
This opinion is subject to further editing. If published, the official version will
appear in the bound volume of the Official Reports.
A party may file with
the Supreme Court a petition to review an adverse decision by the Court of Appeals. See
§ 808.10 and Rule 809.62, Stats.
No. 99-0633
STATE OF
WISCONSIN IN COURT OF APPEALS
DISTRICT
IV
Grant W. LaPlant and Lori LaPlant,
Plaintiffs-Respondents,
v.
Pierro Hamse
Wipperfurth and Erin Celeste Plumlee,
Defendants-Appellants.
APPEAL from a judgment of the circuit court for Green County:
JAMES R. BEER, Judge. Affirmed in part; reversed in part and cause remanded with
directions.
¶1. VERGERONT, J.1This is a small claims action in which Grant and
Lori LaPlant sued Pierro Wipperfurth and Erin Plumlee, alleging they breached a lease of an
apartment located in Belleville, Wisconsin, and requesting damages. After the Green County
court commissioner entered judgment against them, Wipperfurth and Plumlee requested a
trial de novo in the circuit court. They now appeal from the judgment of the circuit court
that the LaPlants recover from them $2,799.75 plus statutory interest accruing thereafter on
the balance due and owing subsequent to January 19, 1999, plus statutory attorney fees in the
amount of $100. They contend the court erred in excluding some of their testimony, not
treating them fairly and relying on inadequate or insufficient evidence.2 We conclude the court did not erroneously
exclude evidence, was not unfair, and that there was sufficient evidence to support all items
of damages found by the court except the amount still owed on the promissory note and the
expense the LaPlants incurred from replacing the blinds. We therefore affirm in part,
reverse in part, and remand.3
BACKGROUND
¶2. The appellants signed an agreement to lease an apartment owned by the
LaPlants for one year, beginning on July 1, 1998. Because they were unable to make the
rental payments as agreed under the lease, they moved out at the end of August. On August
30, 1998, all four signed a "Promissory Note" in which the appellants agreed to
pay the LaPlants the sum of $1,160, with the first payment of $200 due August 30, 1998,
and three subsequent payments of $320, the last due November 9, 1998. The sum of $1,160
included rent and late fees for July, a portion of rent still due and late fees for August, $100
for lawn care (the lease provided that the appellants would reimburse the LaPlants $12.50 per
lawn mowing), $25 for water, and $75 for "cleaning fee." The note also
provided that "[f]ailure to meet the agreed payment schedule deems all money owed
due immediately and subject to legal collection action."
¶3. When the appellants failed to make the payments due under the promissory
note, the LaPlants initiated this action. In the trial before the court they requested
$3,944.66: the amount due under the promissory note; utility costs Wipperfurth and Plumlee
had not paid for the time they were in the apartment; rent from September 1 to September
20, 1998 (the time the apartment was vacant before being re-rented); advertising costs and
other expenses in re-renting; replacement of kitchen vertical blinds and carpet in three
bedrooms; and expenses for carpet cleaning, plus the service and filing fees for the small
claims action. The LaPlants were represented by counsel, and Wipperfurth represented
himself and Plumlee. The appellants did not dispute that they owed the amount due under
the promissory note, but they contended they were not responsible for any rent, utilities or
re-rental expenses after August 30, 1998, because the promissory note was in full settlement
of any such liability on their part. They also contended that the damage to the carpet was
not caused by urine from their pets, as the LaPlants asserted, but by the washing machine
owned by the LaPlants in the apartment that overflowed on the day after they moved
in.
¶4. At trial Lori LaPlant testified that, after the appellants moved out, she
inspected the apartment and found the carpet was damaged by stains from urine, and the
vertical blinds were damaged by urine. The carpet cleaning company was not able to remove
all the urine stains and, since the new tenant objected to the stains and the smell, the
LaPlants replaced the carpeting in the three basement, or lower-level, bedrooms, which was
the area that was most affected. Lori tried to clean the window coverings herself, but they
needed to be replaced because of damage from urine. Lori presented documents showing
expenses incurred and paid for utilities, carpet cleaning, carpet purchase, and re-rental
expenses. Lori also testified that appellants paid $200 under the promissory note on the date
it was signed, and $50 after the action was filed. She and Grant intended the promissory
note to cover only the rental amounts due under the lease, and there was no discussion with
the appellants to the effect that it was the final amount due and owing and they would owe
nothing for damages to the premises. She and Grant had not inspected the premises,
including the carpet, at the time they signed the promissory note. Lori testified that the
appellants never complained to them about problems with the washing machine leaking in the
apartment or other water damage during the time they resided in the apartment. In his
cross-examination, Wipperfurth established that Lori had not seen the premises prior to the
appellants moving in.
¶5. The appellants called Grant LaPlant as a witness. He testified in response
to a question from the court that he did not see the premises prior to the appellants moving
in. The LaPlants' lawyer explained that the agent saw the premises, but the agent was not
present. Grant also testified as follows. In July 1998, Wipperfurth told him the washing
machine was broken but did not at that time tell him about any damage to the apartment as a
result. When Grant came to fix the washing machine, Wipperfurth told him that was
unnecessary, because he and Plumlee had their own, so theirs was installed and the LaPlants'
machine was removed.
¶6. Plumlee also testified for the appellants. On the day after they moved in,
the washing machine, which was on the lower, or basement, level of the apartment,
overflowed, and they contacted the LaPlants' rental agent to tell him that they had two inches
of water standing in the basement. They attempted to remove the water with a steam cleaner
and then turned on fans, and after two to three weeks the floor was finally dry. This
flooding, she testified, caused the damage to the carpet in the basement. There was no urine
smell or urine stains when they moved in, and none when they moved out. On
cross-examination, she acknowledged that they had a dog and a cat and it was possible the
animals "did not always make it outside"; and on occasion they let their son, then
just over a year and not potty-trained, walk around the apartment without diapers on.
¶7. After the LaPlants' counsel and Wipperfurth presented argument to
the court, the court awarded to the plaintiffs $1,160 as the amount owed under the
promissory note; $14.99 in utility expenses that the LaPlants had paid; $55 for replacement
of the kitchen vertical blinds; $660.76 for the carpet cleaning; $830 for the new carpeting
after deducting thirty percent from the actual cost, based on testimony that the carpet was
three-years old; and the process serving and filing fees. The court did not allow rent from
September 1 to September 20, concluding that the promissory note was in accord and
satisfaction as to the rent owed, and did not allow the expenses for re-rental, concluding that
the LaPlants understood at the time they entered into the promissory note that appellants
would be leaving and the apartment would need to be re-rented.
DISCUSSION
Admission and exclusion of evidence.
¶8. The appellants contend the circuit court erroneously excluded evidence they
attempted to admit as irrelevant and hearsay, while admitting hearsay evidence offered by the
LaPlants. Relevant evidence is evidence "having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence," §904.01, Stats., and irrelevant
evidence is not admissible. See §904.02, Stats. Hearsay (defined as
"a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted,"
§908.01(3), Stats.) is generally not admissible unless it comes within an exception
stated in the statutes. See §908.02, Stats. However, generally hearsay
evidence to which no objection is made becomes part of the evidence of the case and may be
used as proof to whatever extent it may have rational persuasive power. Schlichting v.
Schlichting 15 Wis.2d 147, 160, 112 N.W.2d 149, 156 (1961).
¶9. In small claims actions the rules of evidence are relaxed somewhat because
it is a procedure intended to be used by persons who are not represented by lawyers. Section
799.209, Stats., provides:
Procedure. At any
trial, hearing or other proceeding under this chapter:
(1) The court or court commissioner shall conduct the proceeding informally,
allowing each party to present arguments and proofs and to examine witnesses to the extent
reasonably required for full and true disclosure of the facts.
(2) The proceedings shall not be governed by the common law or statutory rules
of evidence except those relating to privileges under ch. 905 or to admissibility under s.
901.05. The court or court commissioner shall admit all other evidence having reasonable
probative value, but may exclude irrelevant or repetitious evidence or arguments. An
essential finding of fact may not be based solely on a declarant's oral hearsay statement
unless it would be admissible under the rules of evidence.
(3) The court or court commissioner may conduct questioning of the witnesses
and shall endeavor to ensure that the claims or defenses of all parties are fairly presented to
the court or court commissioner.
(4) The court or court commissioner shall establish the order of trial and the
procedure to be followed in the presentation of evidence and arguments in an appropriate
manner consistent with the ends of justice and the prompt resolution of the dispute on its
merits according to the substantive law.
Thus, under this statute, a court may
exclude irrelevant testimony, but it must admit relevant evidence having reasonable probative
value even if that evidence is hearsay that would be inadmissible in a court action that is not
a small claims action. And, although hearsay is admissible, essential findings may not be
based solely on a declarant's oral hearsay statement. Section 799.209(2).
¶10. Decisions by a circuit court on the relevancy of evidence are committed
to the circuit court's discretion and we do not reverse such decisions if there is a reasonable
basis in the record. See State v. Denny, 120 Wis.2d 614, 626, 357
N.W.2d 12, 18 (Ct. App. 1984).
¶11. Because the rule against the admission of hearsay does not apply in small
claims proceedings, the circuit court did not err in failing to exclude hearsay evidence
presented by the LaPlants.4 The
extent to which the circuit court could properly consider such evidence in making its
determination is an issue we discuss later in this opinion.
¶12. The appellants refer to three instances in which, they assert, the circuit
court erroneously excluded evidence they wished to present. We conclude the court made no
error and properly exercised its discretion in each instance.
¶13. The first instance concerns the circuit court's decision that a line of
questioning Wipperfurth desired to pursue with Grant LaPlant, whom he called adversely,
was not relevant. Wipperfurth questioned Grant about his conversations with Wipperfurth
concerning the broken washing machine that was originally in the apartment. Grant testified
Wipperfurth told him the machine was broken, that was all Wipperfurth said, and he had not
known it was broken before Wipperfurth told him. The court questioned the relevancy of
this line of questioning, and Wipperfurth explained that he was trying to establish that the
washing machine caused the damage to the carpet because water flooded from the broken
washing machine, and he had talked to several people who had told him that water left
standing produces mold. The court asked Wipperfurth whether he told Grant about the
problem with the washing machine, and had it removed and replaced, before he told him
about the damage to the carpet, and Wipperfurth answered, "Before," but that he
had "told his agent prior." The court then stated that this was irrelevant and
asked Wipperfurth to move on.
¶14. The appellants assert that the court's ruling was erroneous because it did
not make any difference when they told anyone about the washing machine flooding-the mere
fact of it flooding was relevant to their position. However, Wipperfurth was not testifying at
that point-he was questioning Grant, and Grant's answers had already indicated that
Wipperfurth had not told him about the flooding. Therefore, it is not apparent how further
questioning of Grant on this point would have elicited evidence tending to show that the
damage to the carpet was caused by flooding from the broken washing machine.
Wipperfurth did thereafter present evidence on this point from Plumlee, and the court did not
exclude that testimony. The appellants also contend that evidence on the LaPlants'
responsibility for the broken washing machine, and, thus, the damage to the carpet, was
relevant to their position that they did not cause the damage to the carpet. However, the
LaPlants' position was that the carpet was damaged by urine, and not by a leaking washing
machine. Their responsibility for the washing machine's breaking does not make it either
more or less likely that the damage was caused by the washing machine flooding. We
therefore conclude that the circuit court's decisions that further questioning on this point was
irrelevant had a reasonable basis in the record and was a proper exercise of discretion.
¶15. The second instance concerns evidence Wipperfurth desired to
present, through cross-examination of Lori, concerning the square footage of the bedrooms.
Wipperfurth showed Lori a document he described as the floor plan of the house showing the
square footage, and asked her whether it was the floor plan. She said she did not know, and
asked where he got the document from. In response to an objection based on relevancy,
Wipperfurth explained that the square footage of the three bedrooms on the lower level did
not equal the square footage of the carpet that was purchased. The court then asked
Wipperfurth how he was going to show the figures on the document were accurate
measurements, and Wipperfurth explained that the document came from the zoning director,
but he acknowledged he did not have a zoning administrator who had checked on the
measurements to testify or a builder; all he had was this document, an unnotarized copy sent
by the county. He also explained that, since the LaPlants did not know how many feet the
bedrooms were, "this is the closest we can come. I can certainly speculate."
The LaPlants' counsel then objected based on hearsay, because there was no witness to
testify, and repeated the relevancy objection, at which point, the court said to Wipperfurth,
"Let's move on to another subject."
¶16. While this discussion was taking place, the document that Wipperfurth
wanted to admit was marked as an exhibit, as was the envelope in which it came. At a later
point in the trial, the court stated that it was admitting all the exhibits the LaPlants sought to
have admitted, as well as the appellants' two exhibits, and these two exhibits are contained in
the record. We therefore conclude the court did not exclude these exhibits. Rather, in
asking Wipperfurth to move on, the court was indicating that further questioning of Lori
LaPlant on the document would not result in evidence that had a reasonable probative value
because she had already said she did not know if it was the floor plan of the apartment.
¶17. In the third instance, the LaPlants' counsel objected on relevancy grounds
to Wipperfurth's question to Plumlee, on redirect, whether she spent more time in the
upstairs of the apartment or the downstairs (where the bedrooms were). Plumlee answered
"up" before the objection was made. The court sustained the objection;
Wipperfurth stated, "Well, the carpet downstairs was damaged"; and the court
repeated its ruling and asked Wipperfurth to continue, which Wipperfurth did. This was a
reasonable ruling. The fact that Plumlee, or her family, spent more time upstairs than in the
bedrooms does not tend to make it less likely that their pets or child made urine stains on the
bedroom carpets. If Wipperfurth was attempting to elicit additional testimony that would
make urine stains on the bedroom carpets from either pets or their child less likely, the
appellants do not explain what that was.
Fairness of the proceedings.
¶18. The appellants contend the circuit court was not fair to them
because it did not explain the law in a way they could understand, was rude to them and did
not let them speak. They also contend the court listened to the LaPlants but not to them,
which, as we understand it, is a challenge to the court's decision to believe Lori LaPlant's
testimony rather than Plumlee's when their testimony conflicted. This last assertion goes to
the circuit court's role in evaluating the evidence, which we discuss in the next section.
¶19. The appellants do not specify what questions they had that the court did not
answer5 or what lack of knowledge
hampered their ability to present their case. While it is understandable they may have felt at
some disadvantage in representing themselves when the other party was represented by an
attorney, it is not the court's role in such a situation to compensate for the lack of counsel:
the court must remain a neutral decision-maker. However, recognizing that litigants in small
claims actions are often not represented by an attorney, the legislature has directed that the
court in a small claims action take certain steps to make sure the litigants have the
opportunity to fairly present their case. See §799.209, Stats. This is the
appropriate standard against which to measure the court's conduct of this small claims action,
and, after carefully reviewing the record, we conclude the court met this standard.
¶20. The court explained procedure to Wipperfurth at certain points, such as
marking of exhibits. The court asked questions of witnesses to elicit relevant information
that was potentially, and at times actually, beneficial to the appellants, and which
Wipperfurth had not elicited. The court also asked questions of Wipperfurth to gain relevant
information, although Wipperfurth did not take the stand as a witness. The court admitted
all of Wipperfurth's exhibits; did permit some questioning by Wipperfurth that had no
apparent relevancy; and did allow Wipperfurth to make a lengthy closing argument, touching
on matters that were not in the record.
¶21. The court did express impatience on a couple of occasions over the time
the proceeding was taking, but that does not indicate bias against the appellants and is not
unusual in a busy circuit court, whether litigants are represented or not. The court did not,
on the occasions we have discussed in the preceding section, permit Wipperfurth to pursue
certain lines of questioning, but those rulings were proper, and we have not discovered any
other occasions on which the court in any way prevented the appellants from presenting
evidence or argument. Finally, the court did not agree with all of the LaPlants' arguments,
and in fact awarded them less than they requested. In summary, the record does not show
that the court did not fulfill its duty to be an unbiased decision-maker and to "endeavor
to ensure that the claims or defenses of all parties are fairly presented."
Section799.209(3), Stats.
Sufficiency of evidence.
¶22. The appellants contend the circuit court erred in relying on the
evidence presented by the LaPlants, rather than their evidence, and impermissibly relied on
hearsay testimony present by the LaPlants. However, it is the function of the trier of fact-the
circuit court in this case-not of an appellate court, to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from the evidence when more than
one reasonable inference may be drawn. See State v.
Poellinger, 153 Wis.2d 493, 506, 451 N.W.2d 752, 757 (1990). Resolving
conflicts in the testimony includes deciding which witness to believe when the testimony of
one witness contradicts the testimony of another. On review of a factual determination made
by a circuit court without a jury, an appellate court will not reverse unless the finding is
clearly erroneous. Noll v. Dimiceli's, Inc., 115 Wis.2d 641, 643-44, 340
N.W.2d 575, 577 (Ct. App. 1983). A finding is not clearly erroneous simply because there
is evidence to support a contrary finding, but only if the great weight and clear
preponderance of the evidence is against the circuit court's finding.
Id.
¶23. The circuit court was entitled to believe Lori LaPlant's testimony rather
than Plumlee's regarding the damage to the carpets and the cause of the damage. It is true
that some of the evidence the LaPlants presented with respect to urine stains on the carpet
was hearsay but, as we have explained above, the court could properly admit and consider
that testimony. There was no violation of the prohibition against making an essential finding
based solely on uncorroborated oral hearsay, see §799.209(2), Stats.
First, some of Lori LaPlant's testimony on this point was not hearsay: she observed the
stains herself on the carpet and the blinds, and described them as urine stains. Second, some
of the hearsay evidence on this point was not oral and therefore could be the sole basis for an
essential finding.6
¶24. The court implicitly found the amount of carpet purchased was reasonable,
and that is supported by Lori's testimony and the invoice for the carpet, which says "3
bedrooms." Although the court admitted the appellants' floor plan exhibit, the court
was entitled to find, as it implicitly did, that the amount of carpet needed for the three
bedrooms was that amount sold to the LaPlants, rather than a smaller square footage the
appellants sought to establish with their exhibit.
¶25. The court also implicitly found, although it did not expressly so state, that
the promissory note was not intended to cover damages to the apartment. This was
supported by sufficient evidence because Lori testified that this was her understanding, that
there were no discussions indicating otherwise, and there was no evidence to the contrary.
¶26. With respect to the amounts of the items of damages awarded by the court,
there are two for which we cannot find any support either in Lori's testimony or the exhibits
submitted by the LaPlants: the amount due under the note and the cost of replacing the
kitchen blinds. The court awarded the full amount due under the note-$1,160-without
deducting the $250 which Lori testified the appellants had already paid.7 Since the only evidence presented to the circuit
court was that the appellants had paid $250 under the promissory note, the court's finding
that the LaPlants were due $1,160 under the note is clearly erroneous and must be reversed.
Because there is no factual dispute on this record that the appellants paid $250,8 we conclude, as a matter of law, that they owe
$910 under the note. See Vocational, Technical & Adult Educ. Dist. 13 v.
DILHR, 76 Wis.2d 230, 239, 251 N.W.2d 41, 46 (1977) (when there is only
one reasonable inference to draw from the evidence, the drawing of that inference is a
question of law).
¶27. With respect to the blinds, the court awarded $55, stating that they would
last about six years, and apparently taking into account Lori LaPlant's testimony that the
blinds were three-years old. The LaPlants submitted no check, invoice or other document
showing the cost of the blinds. In response to counsel's questions on whether a bill was
incurred in replacing them, Lori testified as follows:
Q And was there a bill incurred in
replacing those [blinds]?
A Yes, there was. I had an estimate given to me at first for $110, and at that
point we weren't able to put out that kind of money, so we ended up getting our - buying our
own replacement.
Q And you paid that bill?
A Yes, we did.
Lori's testimony does not indicate that the
bill she paid was $110, but, rather, that was the amount of the estimate she was initially
given, which they could not afford. Her counsel asked whether she paid the bill for the less
expensive replacement they actually bought, but does not ask the amount of that
bill.9 Because the record contains
no evidence that the LaPlants paid $110 to replace the kitchen blinds, or were damaged in
the amount of $55 because of having to replace them, we must conclude that the court's
finding of damages for this item is clearly erroneous.10 However, we are not able to hold, as a
matter of law, what this finding should be, and we must therefore reverse and remand to the
circuit court for determination of this amount. We do hold that the evidence is sufficient to
support the court's implicit finding that the LaPlants had to replace the kitchen blinds
because of damage from urine caused by the appellants, and that one-half of the cost of the
new blinds was a reasonable amount. Therefore, only the amount the LaPlants paid for the
new blinds need be determined. In our view, however, it would be beneficial for all parties
if they could agree on the amount the LaPlants paid for the new blinds without the time and
expense of further court proceedings.
¶28. In conclusion, we reverse the court's finding that the appellants owed
$1,160 on the note as of the date of the trial to the court and conclude, as a matter of law,
they owed $910. We reverse the award of $55 as one-half the cost of replacing the kitchen
blinds and remand for a determination of this issue. On all other issues raised by the
LaPlants, we affirm.
By the Court.-Judgment affirmed in part; reversed in part and cause
remanded with directions.
This opinion will not be published. See Rule 809.23(1)(b)4,
Stats.
1 This appeal is decided by one judge pursuant to §752.31(2)(a), Stats.
2 We have organized the points raised by the appellants somewhat differently than they do
in their briefs, but we believe we have covered every point they raise.
3 Wipperfurth and Plumlee also contended in their brief in chief that the transcript of the
trial to the circuit court is inaccurate and incomplete because there were conversations among
them, the court, the LaPlants and the LaPlants' counsel that are not included in the
transcript; these conversations, they explain, concerned their knowledge of court procedures
and frustration with the court system. The LaPlants point out in response that, under
§809.15(3), Stats., disputes on the accuracy and completeness of the transcript are to
be addressed by motion in the circuit court. Wipperfurth and Plumlee acknowledge in their
reply brief that they did not do so, and they are no longer pursuing this issue on
appeal.
4 As the LaPlants note, the appellants did not object to any testimony or evidence offered by
the LaPlants. However, we do not agree with the implication of the LaPlants' argument on
this point-that all evidence not objected to in a small claims action is properly considered by
the circuit court. Since evidence that is otherwise inadmissible hearsay may be admitted in a
small claims action if reasonably probative, an objection based on hearsay grounds should
not result in exclusion solely for that reason. And, even in the absence of an objection, a
circuit court in a small claims action does not necessarily properly exercise its discretion by
admitting and considering evidence that has no probative value.
5 The appellants cite to one page of the transcript as an example of a question they asked
which the court did not answer:
Mr. Wipperfurth: ... [T]hat's correct
that I don't [have a stipulation on the amount we owe] or I wouldn't have ordered a trial de
novo.
The Court: Well, asked for one.
Mr. Wipperfurth: I'm sorry?
The Court: Okay. Call your first witness.
It appears the court thought Wipperfurth
was apologizing for mistakenly saying he "ordered" a trial de novo, while the
question mark in the transcript indicates that Wipperfurth did not understand the distinction
the court was making between "ordering" a new trial and "asking" for
one, and was requesting an explanation from the court. We do not view this
misunderstanding as an example of the court refusing to answer a question or explain the
procedure to the appellants.
6 The LaPlants submitted a "Check-In Form," and note which, Lori LaPlant
testified, the new tenant gave her. The form stated, next to the entry
"Floor/carpet": "Soiled all over with dog urine about 20 or more visible
stains"; next to the entry "Floor": "unacceptable-it's covered in urine
biologically hazardous"; and next to "Walls-ceiling": "Looks like
urinated on and wall covered with paint 18 inches up." The note stated: "I
didn't send the second page because I was distraught about the downstairs carpet odor and
it's quite a long litany of the dangers of (?) urine."
7 It appears that in ruling on the amount of damages, the court referred to the itemization of
damages the LaPlants filed with the summons and complaint rather than to the
"Adjusted Balance Due," which the LaPlants filed at the hearing before the court
commissioner and which deducts $250 as "Payments received." Both these
documents were in the record before the circuit court, but the LaPlants did not offer either as
an exhibit. However, the total $3,944.66 on the "Adjusted Balance Due" is the
amount the LaPlants' attorney requested in closing argument.
8 In arguing that the evidence is sufficient for the court's findings on damages, the LaPlants
assert, with respect to the note, that "Appellants defaulted on a promissory note for
$1,160.00" and cite to the court's finding, but not to any evidence supporting it.
9 Again, it appears that in finding the replacement blinds the LaPlants actually bought cost
$110, the court was referring to the original itemization of expenses filed with the summons
and complaint which, showed the sum of $110.78 for the item "Replacement of
Kitchen Vertical Blinds" (and contains a handwritten note dividing this sum by two).
However, the "Adjusted Balance Due," which subtracts the sum of $110.78,
described as "Reverse Estimate-Replacement Blinds" and adds $26.36 as
"Actual Cost-Replacement Blinds." We observe that a copy of a check in this
amount marked "Blinds" is contained in the exhibits the LaPlants presented to the
court commissioner, but this was not presented to the circuit court.
10 The LaPlants argue the evidence is sufficient to support the circuit court's finding on this
point, but cite only to the court's finding, not to any evidence in the record.
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