Paradinovich v. Milwaukee County

• Decision Date: 08 November 1994
• Citation: 189 Wis.2d 184,525 N.W.2d 325
• Parties: James R. PARADINOVICH and Stephen A. Parks, Plaintiffs-Respondents, v. MILWAUKEE COUNTY, Richard E. Artison, Bernard Tesmer, Gary Kasza, Mark Warichak, Dale Paetow and Carol Haeflinger, Defendants-Appellants, d ] Gale V. Coleman, Defendant-Respondent. 93-0762.
• Court: Wisconsin Court of Appeals

Page 325

525 N.W.2d 325

189 Wis.2d 184

James R. PARADINOVICH and Stephen A. Parks, Plaintiffs-Respondents, v. MILWAUKEE COUNTY, Richard E. Artison, Bernard Tesmer, Gary

Kasza, Mark Warichak, Dale Paetow and Carol

Haeflinger, Defendants-Appellants,

^d]

Gale V. Coleman, Defendant-Respondent.

93-0762.

Court of Appeals of Wisconsin.

Submitted on Briefs April 13, 1994.

Opinion Released Nov. 8, 1994.

Opinion Filed Nov. 8, 1994.

For the defendants-appellants the cause was submitted on the briefs of Reinhart, Boerner, Van Deuren Norris & Rieselbach, S.C., with Scott W. Hansen, Anne Willis Reed, and Kathleen S. Donius, of Milwaukee.

For the plaintiffs-respondents the cause was submitted on the briefs of Walter F. Kelly, of Milwaukee.

For the defendant-respondent the cause was submitted on the briefs of Legal Aid Soc. of Milwaukee, Inc., with James M. Brennan, and James A. Walrath, of Milwaukee.

Amicus Curiae brief was filed by Whyte, Hirschboeck Dudek, S.C., with Charles H. Bohl, and Kathryn M. West, of Milwaukee, for Wis. Counties Ass'n.

Before WEDEMEYER, P.J., and SULLIVAN and SCHUDSON, JJ.

SCHUDSON, Judge.

Milwaukee County appeals from the final judgment of the trial court, following a jury verdict, awarding compensatory damages, punitive damages, costs and attorney fees to James R. Paradinovich and Stephen A. Parks, and further ordering that Milwaukee County indemnify Gale V. Coleman as to all recoveries against her for damages, costs, and attorney fees. The County also appeals from the trial court's award of enhanced attorney fees to counsel for Paradinovich and Parks. We conclude that, except for the attorney fee issue, Milwaukee County waived all issues on appeal as a matter of right because it failed to comply with § 805.16(1), STATS. In the interest of justice, we also decline to exercise discretionary review. We also conclude, however, that the trial court incorrectly determined the issue of enhanced attorney fees.

This case comes from the tragic incident of October 2, 1987, when inmate LaRon McKinley shot Milwaukee County Deputy Sheriff Paradinovich as he and Deputy Parks were transporting McKinley from the Milwaukee County jail to the Dane County jail. Before leaving Milwaukee, McKinley had concealed a gun he had obtained from Deputy Sheriff Coleman who apparently had fallen in love with McKinley and had agreed to help him escape. Paradinovich and Parks brought numerous claims against Milwaukee County, its sheriff, a number of the sheriff's department employees, and Coleman. The jury returned a verdict in favor of Paradinovich and Parks, awarding them approximately $5.3 million in compensatory and punitive damages. The County brought numerous post-verdict motions. The County failed, however, to accomplish service on the plaintiffs within twenty days after the verdict, as required by § 805.16(1), STATS., which provides, in part: "Motions after verdict shall be filed and served within twenty days after the verdict is rendered...."

The trial court reviewed affidavits, depositions, and briefs, and heard extensive oral argument regarding whether the County had complied with the statute. The trial court provided an oral decision that presents a fully substantiated set of factual findings, an accurate analysis of the legal issue, and a correct conclusion that the County's non-compliance with § 805.16(1), STATS., deprived the trial court of competency to consider the County's post-verdict motions. See Brookhouse v. State Farm Mut. Auto. Ins. Co., 130 Wis.2d 166, 167-171, 387 N.W.2d 82, 83-84 (Ct.App.1986) (trial court correctly ruled that it lost competency to exercise jurisdiction because party failed to comply with § 805.16, STATS.); see also Ford Motor Co. v. Lyons, 137 Wis.2d 397, 420, 405 N.W.2d 354, 363 (Ct.App.1987); Ahrens-Cadillac Oldsmobile v. Belongia, 151 Wis.2d 763, 765-767 445 N.W.2d 744, 745 (Ct.App.1989). Accordingly, we include and incorporate the relevant portions of the trial court's decision as the appendix to this decision. Additionally, we note several points in light of the County's arguments on appeal.

The County's appellate brief challenging this aspect of the trial court's decision consists of a single paragraph and two footnotes. Conspicuous by its absence is any argument countering the trial court's findings regarding the County's unconscionable conduct that included (1) the knowing submission of false affidavits in an effort to deceive the trial court, and (2) the reprehensible effort to impugn the integrity of two truthful attorneys. Instead, the County argues that this court "should not reject this appeal because of a mailing snafu."

To suggest that the trial court reached its conclusion because of a "mailing snafu" misrepresents the trial court decision. ¹ A careful review of the record establishes that the trial court based its factual findings on substantial and credible evidence. Those findings are a tremendous embarrassment to the County. We appreciate the trial court's statement: "The County should be ashamed."

In this case, however, the County seems to know no shame. On appeal, the County argues that the trial court's conclusion regarding the County's noncompliance with § 805.16(1), STATS., was improper because "the Court did not conduct an evidentiary hearing contrary to settled practice of doing so when material issues are in dispute, the resolution of which depends on the credibility of witnesses." The County, apparently, has chosen to ignore the record. Before deciding this issue, the trial court asked counsel for the County, "And so it's your position that no additional evidence on your side either would be necessary for the court to resolve this?" He answered, "[Y]es, I would agree with that." The court continued:

And I just want to clarify what the position of the parties is: that neither party is saying that this court needs to conduct any further evidentiary hearings, that the decision can be made based on the depositions and the affidavits that have been filed. And that's your position, as I understand it, with the exception of this additional information.

[COUNSEL FOR PARADINOVICH AND PARKS]: That's correct, Your Honor.

THE COURT: Okay. And [COUNSEL FOR THE COUNTY]?

[COUNSEL FOR THE COUNTY]: That's correct, Your Honor.

THE COURT: Then why don't we proceed to argue that issue with the state of the record as it is.

The parties then thoroughly argued the issue. The trial court took the matter under advisement and, in doing so, reiterated, without objection from the County, "that the parties concede there's no need to take additional evidence." Thus, the County's argument is baseless.

Our analysis, however, is not complete. Although a party who fails to comply with § 805.16, STATS., has lost the opportunity to assert appellate issues as a matter of right, this court retains discretion to address issues in the interest of justice. As the supreme court explained:

[T]he failure to present timely postverdict motions does not deprive the court of appeals of jurisdiction to review the judgment that followed. Such failure does, however, limit the issues that may be asserted as a matter of right on the appeal. Although the issues intended to have been raised on motions after verdict may not be asserted as of right in support of the appeal, the appeals court has jurisdiction over a timely appeal and may in its discretion conclude that, in the interest of justice, the issues not assertable as a matter of right may nevertheless be reviewed.

Hartford Ins. Co. v. Wales, 138 Wis.2d 508, 510-511, 406 N.W.2d 426, 427 (1987). Section 752.35, STATS., provides:

Discretionary reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.

We have examined the record and considered the arguments in this case. Frankly, we are perplexed by those rulings regarding whether Coleman, in providing the gun to McKinley, was acting within the scope of her employment. See Olson v. Connerly, 156 Wis.2d 488, 499-500, 457 N.W.2d 479, 483 (1990) ("an employee's conduct is not within the scope of his or her employment if it is too little actuated by a purpose to serve the employer or if it is motivated entirely by the employee's own purposes"). Thus, had the County's post-verdict process fallen victim to nothing more than "a mailing snafu," and had the County candidly acknowledged that to the trial court, the County would have been in a very strong position from which to seek our discretionary review. Instead, as the trial court decision carefully describes, the County attempted to mislead with "a cavalier attitude to the truth." The County then compounded its ethical problems by claiming, on appeal, that the trial court should be faulted for failing to hold the very evidentiary hearing that the County repeatedly agreed was unnecessary. Thus, the County's argument in the "interest of justice" is ironic, to say the least.

Section 752.35, STATS., specifies that this court "may" reach substantive appellate issues in the interest of justice. The County's own unconscionable conduct compels this court to decline to do so in this case. Thus, we do not decide several significant issues. That is unfortunate. It would be more unfortunate, however, if the trial court and this court lacked the fortitude to require the County to obey the law. The County eventually must recognize not only...