Keller v. Patterson

• Decision Date: 20 June 2012
• Docket Number: No. 2011AP334.,2011AP334.
• Citation: 2012 WI App 78,343 Wis.2d 569,819 N.W.2d 841
• Parties: Wanda KELLER, Allan G. Keller and Greggory Lentz, Plaintiffs–Appellants–Cross–Respondents, v. Barbara PATTERSON, Defendant–Respondent–Cross–Appellant.
• Court: Wisconsin Court of Appeals

343 Wis.2d 569

819 N.W.2d 841

2012 WI App 78

Wanda KELLER, Allan G. Keller and Greggory Lentz, Plaintiffs–Appellants–Cross–Respondents,

v.Barbara PATTERSON, Defendant–Respondent–Cross–Appellant.

No. 2011AP334.

Court of Appeals of Wisconsin.

Submitted on Briefs April 26, 2012.

Opinion Filed June 20, 2012.

On behalf of the plaintiffs-appellants-cross-respondents, the cause was submitted on the briefs of Lisa C. Goldman and Bruce M. Davey of Lawton & Cates, S.C., of Madison.

On behalf of the defendant-respondent-cross-appellant, the cause was submitted on the briefs of James A. Walrath of Law Offices of James A. Walrath, LLC, of Milwaukee.

Before BROWN, C.J., NEUBAUER, P.J., and GUNDRUM, J.

BROWN, C.J.

[343 Wis.2d 573]¶ 1 This case stems from Barbara Patterson's actions after she learned that her neighbor Wanda Keller's son, a convicted sex offender, was living in her community. Wanda and Allan G. Keller complain that Patterson distributed fliers containing contact information for the sex offender and identifying them as his parents with whom he lived. The situation eventually escalated, and the Kellers obtained counsel, who wrote a letter to Patterson expressing their intent to file a lawsuit. Patterson then petitioned for and received temporary restraining orders against Wanda and her other son, Greggory Lentz, based on allegations she now admits were largely false. She voluntarily dismissed the petitions before serving them. Eventually, the Kellers and Greggory filed this lawsuit alleging invasion of privacy, defamation, and abuse of process. The trial court granted summary judgment to Patterson on all of the Kellers' claims. We affirm the trial court as to the invasion of privacy and defamation claims, but reverse as to the abuse of process claim—the undisputed facts in the record could lead a reasonable fact finder to conclude that Patterson abused the legal process when she made false allegations against the Kellers and Greggory. We also address and reject Patterson's cross-appeal, which is based on the premise that the Kellers' claims in this case were frivolous.

BACKGROUND

¶ 2 The Kellers are longtime residents of the Grafton community. Wanda has two sons, Greggory and Michael Lentz, both of whom are adults. Michael is a convicted sex offender who lived with the Kellers during all times pertinent to this case. Patterson is the Kellers' neighbor, but she did not know the Kellers, Michael or Greggory prior to receiving an anonymous mailing stating that a “new neighbor,” Michael Lentz, had a conviction for second-degree sexual assault of a child.

¶ 3 After receiving the mailing, Patterson and another neighbor distributed a six-page flier with information about Michael around the community. The flier included: a printout from the DOC website with a picture of Michael; a page of information listing Wanda and Allan as Michael's parents and including their address and phone number; two pages from the DOC sex offender registrant information website regarding Michael; a printout from the Wisconsin Court System Access website, more commonly referred to as CCAP, listing the offenses for which Michael was convicted; and a page with information about the time and location of a meeting set for April 15, 2009, to discuss the matter.

¶ 4 Once the fliers were distributed, the Kellers began receiving phone calls with no one on the line. People also drove down the street honking or stopping to look at their house and the Kellers received mail about Michael. Greggory, who does not live with Michael and the Kellers, became involved when he saw someone looking at one of the fliers in a park. He mistakenly believed that the woman who was reading the flier had posted it and began yelling at her. When a man intervened, Greggory bumped him in the chest. Greggory was cited for disorderly conduct for the incident.

¶ 5 At some point, the Kellers retained counsel, who mailed a letter dated August 25, 2009, to Patterson informing her that the Kellers intended to file a complaint against her for invasion of privacy. The letter also asked Patterson to contact the Kellers' attorney if she wished to resolve the matter without litigation. On August 27, 2009, without responding directly to the letter, Patterson petitioned for temporary restraining orders against Wanda and Greggory. She also filed a summons and complaint against the Kellers and both Lentz brothers, alleging “harassment, slander, extortion, and threat to life.” The petitions and complaint alleged the following:

(1) That Greggory had guns in his home or possession that he had threatened to use against Patterson at a meeting.

(2) That Wanda had guns in her home or in her sons' homes and had threatened to use them against Patterson at a meeting.

(3) That Greggory had “documented violent behavior and ... threat[ened] to use firearms in confrontive discussions.”

(4) That “Wanda Keller, her Pastor, and her friends” had been sending threatening letters and making threatening calls to her.

(5) That the Kellers had been “spread[ing] mistruths and undocumented facts about [Patterson], most recently to [their attorney].”

(6) That the Kellers' attorney, with the Kellers' approval, had “accuse[d] [Patterson] of untoward behavior, and actions, without proof or discovery, in a premeditated attempt to slander the reputation of [Patterson].”

As a result of the petitions, temporary restraining orders were issued against Wanda and Greggory. Then, before the petitions or complaint were served, Patterson voluntarily dismissed them.

¶ 6 On December 7, 2009, the Kellers and Greggory filed this action alleging invasion of privacy, defamation, and abuse of process. When Patterson was deposed, she was asked to support the allegations she made in her complaint and petitions for temporary restraining orders. Regarding the guns that Wanda and Greggory allegedly threatened to use against her at a meeting, Patterson stated that those allegations were based on her understanding that Greggory had asked police whether he could bring a gun to the meeting about his brother “because he thought there might be violence.” In support of other allegations in the complaint, she identified one unsigned letter that she found threatening and believed to be written by Wanda. When asked about threatening phone calls, she could not identify a single phone call from the Kellers in her telephone records. Finally, her testimony indicates that the allegations of spreading “mistruths” were entirely based on the Kellers' attorney's letter to her, which she felt portrayed her “as a person premeditatively trying to injure this family.”

¶ 7 Patterson moved for summary judgment on all of the Kellers' claims, and the trial court granted her motion. The Kellers and Greggory appeal.

DISCUSSION

¶ 8 We review summary judgment decisions de novo, applying the same methodology as the trial court. Metropolitan Ventures, LLC v. GEA Assocs., 2006 WI 71, ¶ 20, 291 Wis.2d 393, 717 N.W.2d 58. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Johnson v. Rogers Mem'l Hosp., Inc., 2005 WI 114, ¶ 30, 283 Wis.2d 384, 700 N.W.2d 27;see alsoWis. Stat. § 802.08(2) (2009–10).¹ Here, the facts are undisputed but lead to some competing inferences. In such cases, we view the inferences to be drawn from the undisputed facts in the light most favorable to the nonmoving party. Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶ 22–23, 241 Wis.2d 804, 623 N.W.2d 751.

Invasion of privacy

¶ 9 We first address the Kellers' invasion of privacy claim, which is based on Wis. Stat. § 995.50(2)(a) & (c). Those subsections define “invasion of privacy” as follows:

(a) Intrusion 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.

....

(c) Publicity given to a matter concerning the private life of another, of a kind highly offensive to a reasonable person, if the defendant has acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter involved, or with actual knowledge that none existed. It is not an invasion of privacy to communicate any information available to the public as a matter of public record.

Id.

¶ 10 We begin with the Kellers' claim based on Wis. Stat. § 995.50(2)(a). Subsection (2)(a) has a spatial basis—the invasion of privacy must occur “in a place that a reasonable person would consider private or in a manner which is actionable for trespass.” The Kellers argue that the hang-up calls, letters, and cars honking their horns in front of their house amounted to an invasion of their home. We disagree. There was no physical intrusion of the Kellers' home by Patterson or even at Patterson's direction.² The Kellers cite nothing on point supporting the proposition that phone calls, letters, and honking car horns by third parties are enough to constitute invasion of privacy under subsection (2)(a).³ Perhaps there is no such case law. Our own research revealed no case which explicitly allows a plaintiff to make a spatial argument based on some nonphysical invasion.

[343 Wis.2d 579]¶ 11 Rather, we found a case that supports the opposite contention. In Ladd v. Uecker, 2010 WI App 28, ¶ 20, 323 Wis.2d 798, 780 N.W.2d 216, the plaintiff alleged invasion of privacy because the defendants had taken “photographs of her in the stands at baseball parks and disseminated her ‘mug shot’ and information about [an] injunction and [a] spring training incident.” We held that there was no invasion of privacy under Wis. Stat. § 995.50(2) in part because the alleged actions did not involve an invasion of private places and the information distributed was a matter of...