Coltman v. Kase
| Decision Date | 31 August 2015 |
| Docket Number | No. 2014AP2887.,2014AP2887. |
| Citation | 870 N.W.2d 248 (Table),365 Wis.2d 195 |
| Parties | Carol Ann COLTMAN, Plaintiff–Appellant, v. Stephen A. KASE, Brooks, Kase & Erikson, S.C., Attorneys at Law, Zoe Ann Wesolowski, Erik H. Monson, Coyne, Schultz, Becker & Bauer, S.C., Attorneys at Law and Antoinette L. Christenson, Defendants–Respondents. |
| Court | Wisconsin Court of Appeals |
Carol Coltman, pro se, appeals an order dismissing her claims against attorney Stephen Kase; Brooks, Kase & Erikson, S.C.; Zoe Wesolowski; attorney Erik Monson; Coyne, Schultz, Becker & Bauer, S.C.; and Antoinette Christenson. Coltman argues: (1) the circuit court erred by concluding her complaint failed to state a claim on which relief could be granted; (2) dismissal of her claims violated her right to due process; and (3) the circuit court erred by denying her motion for recusal. We reject Coltman's arguments and affirm.
¶ 2 Zoe Wesolowski, who is Coltman's daughter, sued Coltman in Door County case No.2012CV316. Wesolowski was represented in that lawsuit by attorney Stephen Kase, of the law firm Brooks, Kase & Erikson, S.C. Coltman filed a number of counterclaims against Wesolowski, and she also filed claims against thirteen third-party defendants, including Antoinette Christenson. Christenson was represented by attorney Erik Monson of the law firm Coyne, Schultz, Becker & Bauer, S.C.
The complaint alleged that, “when [Coltman] realized that she was in fact ... being video tape[d], her only recourse was to leave the premises.” As Coltman left, Kase “warned her that she was in a lot of trouble for leaving and then proceeded to file an Order to Show Cause for Contempt,” a procedure the complaint alleged “was dispensed by statute over 40 years ago[.]”
¶ 4 The complaint further alleged that the “video taping ... at Mr. Kase's office ... was carried out surreptitiously and clandestinely and by stealth means to avoid detection.” Coltman contended Kase provided the “facilities for the video taping to occur[,]” and Monson provided the equipment. She also alleged that no notice of the deposition was given to twelve of the litigants in case No.2012CV316, and that the “procedures set by statute [for] video taping were not followed[.]” Finally, Coltman alleged she “had a right to expect that the premises would be safe for her to appear and give her oral deposition[,]” and Kase and Monson violated that right by videotaping her.
¶ 5 Based on these allegations, Coltman asserted four “claims for relief”: (1) invasion of privacy; (2) abuse of the elderly; (3) fraud; and (4) abuse of legal process. She also asserted the defendants had committed the “torts” of “mental distress,” “extortion,” and “bullying.”
¶ 6 Coltman's lawsuit was assigned to Judge D. Todd Ehlers. On August 15, 2014, Kase, his law firm, and Wesolowski (the Kase defendants) answered Coltman's complaint and moved to dismiss for failure to state a claim on which relief could be granted. On August 25, Monson, his law firm, and Christenson (the Monson defendants) answered the complaint. On September 2, the Monson defendants moved for judgment on the pleadings. They also moved the circuit court to consolidate the instant case with case No.2012CV316, which was assigned to Judge David Miron. Judge Ehlers subsequently wrote to Judge Miron advising that he had no objection to consolidating the cases. Judge Miron responded to Judge Ehlers, suggesting that the issue be addressed on October 16 at a previously scheduled hearing in case No.2012CV316. Coltman filed a brief opposing the motion to consolidate.
¶ 7 On September 17, Coltman requested that Judge Ehlers recuse himself for cause, pursuant to Wis. Stat. § 757.19(2)(g).1 That request was granted, and on September 19, Judge Peter Diltz was assigned to the case. On September 22, Coltman requested that Judge Diltz recuse himself for cause, again pursuant to § 757.19(2)(g). That request was also granted, and the case was assigned to Judge Miron.
¶ 8 Thereafter, the Monson defendants withdrew their motion to consolidate, asserting the assignment of both cases to Judge Miron rendered the motion moot.2 The Monson defendants requested that their motion for judgment on the pleadings be considered at the October 16 hearing scheduled in case No.2012CV316. Coltman subsequently requested that Judge Miron recuse himself for cause, pursuant to Wis. Stat. § 757.19(2)(g). Judge Miron denied that request on October 7. Coltman then moved to adjourn the October 16 hearing. However, no action was taken on her motion prior to the hearing date.
¶ 9 At the beginning of the October 16 hearing, Coltman renewed her argument that the hearing should be adjourned. She also objected to any consideration of the instant case, asserting the hearing was scheduled only to address issues in case No.2012CV316. Coltman's request for an adjournment was denied, and the hearing proceeded as scheduled.
¶ 10 After considering several motions in case No.2012CV316, the circuit court turned to the motions for dismissal and for judgment on the pleadings filed by the defendants in the instant case. The court granted those motions, concluding Coltman's complaint failed to state a claim on which relief could be granted. Coltman moved for reconsideration, which the court denied. A written order dismissing Coltman's claims was entered on October 28, 2014, and this appeal follows.
¶ 11 Coltman first argues the circuit court erred by granting the Kase defendants' motion to dismiss and the Monson defendants' motion for judgment on the pleadings. We independently review the court's decision to grant these motions. See Kohlbeck v. Reliance Constr. Co., 2002 WI App 142, ¶ 9, 256 Wis.2d 235, 647 N.W.2d 277 (); Freedom from Religion Found., Inc. v. Thompson, 164 Wis.2d 736, 741, 476 N.W.2d 318 (Ct.App.1991) ().
¶ 12 “A motion to dismiss a complaint for failure to state a claim tests the legal sufficiency of the complaint.” Watts v. Watts, 137 Wis.2d 506, 512, 405 N.W.2d 303 (1987). When considering whether a complaint states a claim, we accept the facts alleged in the complaint as true and draw all reasonable inferences from those facts in the plaintiff's favor. Heinritz v. Lawrence Univ., 194 Wis.2d 606, 610, 535 N.W.2d 81 (Ct.App.1995). A complaint should not be dismissed for failure to state a claim unless it is clear the plaintiff cannot recover under any circumstances. Id. at 610–11, 535 N.W.2d 81.
¶ 13 Similarly, when reviewing a motion for judgment on the pleadings, our first step is to determine whether the complaint states a claim on which relief can be granted. Jares v. Ullrich, 2003 WI App 156, ¶ 8, 266 Wis.2d 322, 667 N.W.2d 843. If so, we look to the responsive pleadings to determine whether a material factual issue exists. Id.
¶ 14 Here, we conclude the circuit court properly granted the Kase defendants' motion to dismiss and the Monson defendants' motion for judgment on the pleadings because Coltman's complaint failed to state a claim on which relief could be granted. We address Coltman's claims individually below.
¶ 15 Wisconsin recognizes a civil tort claim for invasion of privacy, which is codified in Wis. Stat. § 995.50. Under that statute, a person whose privacy is “unreasonably invaded” is entitled to equitable relief to prevent and restrain the invasion, compensatory damages, and reasonable attorney fees. Sec. 995.50(1). As relevant here, the statute defines the term “invasion of privacy” as “[i]ntrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private or in a manner which is actionable for trespass.” Sec. 995.50(2)(a). “The test is an objective one: whether a reasonable person would find the intrusion highly offensive.” Gillund v. Meridian Mut. Ins. Co., 2010 WI App 4, ¶ 29, 323 Wis.2d 1, 778 N.W.2d 662.
¶ 16 Coltman's complaint fails to state a claim for invasion of privacy under Wis. Stat. § 995.50. Coltman alleges her privacy was invaded when Kase and Monson attempted to videotape her deposition without her knowledge or consent. However, videotaping depositions is a common practice; in fact, it is specifically allowed by statute. See Wis. Stat. § 885.42(1) (). We therefore conclude, as a matter of law, that videotaping a deposition is not the type of activity that would be “highly offensive to a reasonable person [.]” See § 995.50(2)(a). In addition, no reasonable person would “consider private” a conference room at opposing counsel's law firm where the person was asked to appear for a deposition. See id. Thus, even accepting the facts alleged in the complaint as true, Coltman failed to state a claim for invasion of privacy.
¶ 17 Coltman's complaint also purported to assert a claim for abuse of the elderly. However, Wisconsin does not recognize any such civil tort claim. Coltman cites Wis. Stat. § 46.90, but that statute pertains to Wisconsin's elder abuse mandatory reporting and investigation system. Coltman also cites Wis. Stat. § 940.285, but that statute sets forth criminal penalties for abuse of certain at-risk individuals. Neither statute expressly permits a private individual to bring a civil tort action....
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