Paul Evers v. Everett Fryer
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No. 95-0902
STATE OF WISCONSIN
IN COURT OF APPEALS
DISTRICT I
PAUL EVERS,
Plaintiff-Appellant,
v.
ERRATA SHEET
EVERETT FRYER,
Defendant-Respondent.
Marilyn L. Graves
Clerk of Court of Appeals
231 East, State Capitol
Madison, WI 53702
Peg Carlson
Chief Staff Attorney
119 Martin Luther King Blvd.
Madison, WI 53703
Jennifer Krapf
Administrative Assistant
119 Martin Luther King Blvd.
Madison, WI 53703
Court of Appeals, District II
2727 N. Grandview Blvd.
Suite 300
Waukesha, WI 53188-1672
Court of Appeals, District III
740 Third Street
Wausau, WI 54401-6292
Court of Appeals, District IV
119 Martin Luther King Blvd.
Madison, WI 53703
Hon. Jacqueline D. Schellinger
(L.C. #94-SC-019200)
Milw. County Courthouse
901 N. Ninth St., Rm. 408
Milwaukee, WI 53233
Russell D. Bohack
Brennan & Collins
788 N. Jefferson St., Ste. 700
Milwaukee, WI 53202
James Walrath & Thomas Zander
Legal Aid Society of Milw.
229 E. Wisconsin Ave., #200
Milwaukee, WI 53202-4231
No. 95-0902
PLEASE TAKE NOTICE that the attached page 3 is to be
substituted for page 3 in the above-captioned opinion which was released on
October 24, 1995.
Dated this 25th day of December, 2006.
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No. 95-0902
On May 28, Evers served Fryer with a small claims summons and
complaint for wrongful withholding of his security deposit. Three days later,
Evers cashed Fryer's check. A small claims hearing was held on February 13,
1995, where the trial court stated:
My understanding is that when the security deposit return was
made, that Mr. Evers held on to the check for about
four weeks and that then there were some
discussions between himself and Mr. Fryer where
Mr. Fryer was claiming additional damages for a
carpet he claimed had been destroyed by pets owned
by Mr. Evers, and so Mr. Evers then decided to cash
the check upon advice of counsel.
[Evers] claimed he talked to [a legal aid attorney] who told him it
was probably best to cash the check so you at least
have some reimbursement for your security deposit.
The trial court concluded that an accord and satisfaction existed between the
parties and dismissed Evers's complaint. Evers appeals.
Whether the facts fulfill a particular legal standard presents a legal
question. See City of Brookfield v. Milwaukee Metro. Sewerage Dist., 141
Wis.2d 10, 14, 414 N.W.2d 308, 309 (Ct. App. 1987). This court independently
reviews the trial court's determination. See In re Estate of Karrels, 148 Wis.2d
448, 450, 435 N.W.2d 739, 740 (Ct. App. 1988). Evers argues that an accord and
satisfaction was not reached and, alternatively, if one did exist, that it would be
contrary to public policy.
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