Chomicki v. Wittekind
| Decision Date | 04 December 1985 |
| Docket Number | No. 85-0740,85-0740 |
| Citation | 381 N.W.2d 561,128 Wis.2d 188 |
| Parties | Gloria CHOMICKI, Plaintiff-Respondent, v. Kenneth WITTEKIND, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Robert C. Angermeier, Milwaukee, for plaintiff-respondent.
Anthony J. Palasz, Milwaukee, for defendant-appellant.
Before MOSER, P.J., and WEDEMEYER and SULLIVAN, JJ.
Kenneth Wittekind appeals from a judgment entered on a jury verdict finding that Wittekind's sexual harassment of Gloria Chomicki, and his subsequent termination of her tenancy, was discriminatory conduct prohibited by the state fair housing law, sec. 101.22, Stats. Wittekind asserts trial court error as a matter of law in allowing Chomicki's claim under this statute. He also challenges (1) the admission of testimony from other tenants concerning similar harassment episodes, (2) the sufficiency of the evidence demonstrating Chomicki's economic loss, and (3) the jury instructions on compensatory and punitive damages.
Because sec. 101.22(2)(f), Stats., specifically prohibits a landlord from "engaging in the harassment of a tenant," the trial court properly concluded that Wittekind's conduct was a form of sex-based housing discrimination. Because the testimony of four of Wittekind's female tenants was relevant and highly probative as to his routine practice of demanding sexual favors, the trial court properly admitted this evidence pursuant to sec. 904.06, Stats. Because credible evidence was introduced to demonstrate Chomicki's incurred expenses, because the jury instruction on punitive damages properly enunciated the clear and convincing evidence standard, and because Chomicki was not obligated to prove all the elements of the common law tort of intentional infliction of emotional distress in order to collect compensatory damages, we affirm both the jury instructions and the damage awards.
The essential facts of this case are as follows. In 1981, Chomicki began renting an apartment from Wittekind on a month-to-month basis. On January 6, 1983, he made explicit sexual advances to her and threatened to raise her rent or evict her if she did not comply. When she refused his advances, he immediately terminated her tenancy. Subsequently, Chomicki brought a private civil action against Wittekind pursuant to sec. 101.22(7), Stats.
At trial, Chomicki testified that Wittekind not only gave her an ultimatum either to have sex with him or to vacate her apartment, but also engaged in further harassment when she refused. First, he gave her notice to vacate. Next, he cursed her over the telephone when he learned she intended to take legal action to prevent the termination of her tenancy. Finally, he roamed through her apartment building at all hours of the night accompanied by his guard dog. Chomicki also introduced evidence from four other women that between 1982 and 1984 Wittekind had made sexual demands to them in a landlord-tenant context. Three of these women were private citizens; the fourth was a government investigator. All had been former tenants or prospective tenants of Wittekind. The jury found for Chomicki and awarded her damages for economic loss ($1,500) and emotional distress ($7,500), as well as punitive damages ($10,000). Wittekind's postverdict motions were denied, judgment was entered, and this appeal followed.
Wittekind first asserts that the trial court erred in applying sec. 101.22, Stats., to Chomicki's claim of sexual harassment since this specific form of discriminatory conduct is only defined and prohibited in the fair employment law, secs. 111.31-111.395, Stats. We do not agree. Interpretation of a statute is a question of law which we review without deference to the trial court. Town of Seymour v. City of Eau Claire, 112 Wis.2d 313, 319, 332 N.W.2d 821, 823 (Ct.App.1983). Statutes relating to the same subject matter may be considered in construing a statutory provision. Kollasch v. Adamany, 104 Wis.2d 552, 563, 313 N.W.2d 47, 53 (1981).
While a landlord may terminate a month-to-month tenancy for any legitimate reason, or for no reason at all, he or she may not terminate a tenancy for an illegal purpose. See Dickhut v. Norton, 45 Wis.2d 389, 399, 173 N.W.2d 297, 301-02 (1970). It is against the law of this state for any person to discriminate in the rental of housing. Sec. 101.22(1), Stats. As defined in sec. 101.22(1m), "discrimination" means "to segregate ... or treat any person or class of persons unequally because of sex ... ." Specifically, under sec. 101.22(2)(f) it is unlawful for any person to discriminate "[b]y refusing to renew a lease, causing the eviction of a tenant from rental housing or engaging in the harassment of a tenant." (Emphasis added.) Although Wittekind protests that "harassment" under sec. 101.22 does not include "sexual harassment," he offers no reason why we should strike this form of harassment from consideration. Under the facts adduced at trial, Wittekind "treated" Chomicki "unequally because of sex" by harassing her to have unwanted sexual relations with him. Other women testified that Wittekind had similarly harassed them, and Wittekind himself admitted that he never made sexual advances to any of his male tenants.
Wittekind claims that even if these facts are accepted as true, his conduct does not fall within the aegis of the fair housing law. He correctly notes that the definition of sexual harassment used by the trial court in instructing the jury was derived from the fair employment law. Section 111.32(13), Stats., provides in part: " 'Sexual harassment' means unwelcome sexual advances, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature." Wittekind asserts that this definition of prohibited conduct applies only to cases alleging discrimination in employment, not to claims alleging discrimination in housing.
This facile argument cannot avoid the fact that both laws are designed to eradicate the effects of bias and prejudice. Their purposes are the same; only their fields of operation differ. Both statutes are intended to be remedial in nature and broad in scope, as the history of the sexual harassment doctrine itself demonstrates. Before this doctrine was codified in our statutes, it was recognized by the administrative agency that has jurisdiction over employment discrimination claims and by our courts. Hamilton v. DILHR, 94 Wis.2d 611, 620 n.4, 288 N.W.2d 857, 861 n.4 (1980). If an employer's sexual harassment of an employee constitutes sex discrimination in the workplace, then a landlord's sexual harassment of a tenant constitutes sex discrimination in the rental market. This is particularly true when a landlord predicates the continuation of a tenancy upon acceptance of sexual demands. Here, the jury found that Wittekind terminated Chomicki's tenancy because she refused to have sex with him. We conclude that such conduct is actionable under sec. 101.22, Stats., and that the trial court's reliance on the doctrine of sexual harassment was both reasonable and proper.
Wittekind next asserts that the trial court erred in admitting testimony from four women that Wittekind had made similar sexual advances to them in a landlord-tenant context. The standard of review of a trial court's ruling admitting evidence is whether the trial court exercised its discretion in accordance with accepted legal standards and the facts of record. In re Paternity of T.L.S., 125 Wis.2d 399, 401, 373 N.W.2d 55, 56 (Ct.App.1985).
When Wittekind moved in limine to exclude the four women's testimony, the trial court denied the motion, stating that Chomicki could "bring in the witnesses as to show a plan or business plan." See sec. 904.04(2), Stats. (evidence of other crimes, wrongs or acts is admissible to prove the existence of a plan). At trial, however, the court clarified its rationale for admitting the testimony when it rejected Chomicki's proposed jury instruction based on sec. 904.04(2) and, instead, utilized an instruction based on sec. 904.06, Stats. 1 Specifically, the trial court directed the jury:
You may consider the habits or routine practices of the defendant as they pertain to seeking sexual favors from tenants or prospective tenants other than the plaintiff in determining whether the defendant sought sexual favors from the plaintiff in this case. Habit or routine practice may be proved by the testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.
Wittekind argues that testimony concerning four "isolated" incidents over a two-year period cannot be termed evidence of a habit or routine practice. We disagree. Section 904.06(2), Stats., does not require a minimum number of "specific instances of conduct" to establish a routine practice or habit. Thus, in Micke v. Jack Walters & Sons Corp., 70 Wis.2d 388, 390-92, 234 N.W.2d 347, 348-49 (1975), our supreme court affirmed a trial court's decision to use this evidentiary rule to admit the testimony of two former employees as to company policy. Similarly, in Lobermeier v. General Telephone Company, 119 Wis.2d 129, 150-51, 349 N.W.2d 466, 476-77 (1984), evidence of ten prior incidents was deemed admissible. The key issue is not how many incidents are testified to, but how relevant and probative are they to the case at bar. See Micke, 70 Wis.2d[128 Wis.2d 197] at 392, 234 N.W.2d at 349; Lobermeier, 119 Wis.2d at 151, 349 N.W.2d at 477. Here, the four witnesses testified to conduct by Wittekind that was factually similar to the circumstances surrounding Chomicki's complaint. Their testimony, if believed by the jury, was both relevant and highly probative. It was, therefore, properly admitted pursuant to sec. 904.06. 2
We now turn to the issue of damages. Wittekind asserts various grounds to challenge the...
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