Khalar v. Murphy, 95-3569
| Decision Date | 10 April 1997 |
| Docket Number | No. 95-3569,95-3569 |
| Citation | 210 Wis.2d 497,568 N.W.2d 320 |
| Parties | NOTE: THIS OPINION WILL NOT BE PUBLISHED IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A REPORTER TABLE. Daniel KHALAR, Rodney L. Emerson, Plaintiffs-Respondents, Kevin Kirsch, Plaintiff-Respondent-Cross Appellant, v. James MURPHY, Defendant-Appellant-Cross Respondent, Chris Merigold, and Clarence Alderden, Defendants, Hon. Patrick Fielder, Defendant-Appellant-Cross Respondent. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment and CROSS-APPEAL from an order of the circuit court for Dane County: GERALD C. NICHOL, Judge. Judgment reversed; order affirmed and cause remanded with directions.
Before EICH, C.J., DYKMAN, P.J., and DEININGER, J.
James Murphy and Patrick Fiedler (officials) appeal from a judgment awarding Daniel Khalar, Rodney Emerson and Kevin Kirsch (inmates) a total of $3,500 in damages, plus $58,366.99 in costs and attorney fees. The trial court awarded the damages and costs on the inmates' claims under 42 U.S.C. § 1983 that the lack of a toilet and sink in a segregation cell, in which each was temporarily confined, violated their rights under the Fourteenth Amendment. 1
The officials argue that the judgment, which negates a jury verdict on the claims, is "contrary to the post-verdict provisions of chapter 805 Stats." We conclude that the trial court lost its competency to alter the jury verdict once the time limit under § 805.16, STATS., had expired. 2 Further, we decline to exercise our discretionary authority under § 752.35, STATS., to grant the inmates relief from a judgment on the verdict. Accordingly, we reverse and direct that judgment be entered on the jury's verdict.
Kevin Kirsch cross-appeals the trial court's order dismissing on summary judgment, a different § 1983 claim: that the cold temperature in his cell violated his rights under the Eighth and Fourteenth Amendments. We conclude that the record discloses no genuine issues of material fact on this claim, and that the officials are entitled, as a matter of law, to a judgment dismissing this claim. We therefore affirm the summary judgment in their favor.
The inmates brought this action under 42 U.S.C. § 1983, alleging numerous violations of their rights under the Eighth and Fourteenth Amendments. They complained of the lack of a toilet and sink in a certain segregation cell at Columbia Correctional Institution (CCI), cold temperatures in their cells, and receiving bag lunch meals instead of cooked meals. They also made a claim for damages under state negligence law on these same allegations. Officials Murphy and Fiedler were, respectively, the warden of CCI and the Secretary of the Department of Corrections during the relevant time period.
The officials moved for summary judgment dismissing all claims against them. The inmates also moved for summary judgment on their claims. The trial court denied the inmates' motion and granted the officials' motion to dismiss all claims relating to cold cell temperatures and bag lunches. 3 The court did not dismiss the Eighth and Fourteenth Amendment claims or the negligence claim based on the lack of a toilet and sink in segregation cell number 46. These claims were tried to a jury on October 10 through 13, 1994. On October 13, 1994, the jury returned a verdict finding no constitutional violations with respect to any of the inmates, finding negligence on the part of the officials, but finding no causation of harm and zero compensatory damages. The jury also determined that the officials had not acted maliciously or wantonly, thus precluding a punitive damage award.
On November 2, 1994, the inmates filed post-verdict motions requesting the court to "set aside the portion of the juries [sic] verdict" finding no violation of their Eighth Amendment right to be free from cruel and unusual punishment. On this claim, the inmates asked the court for at least one dollar in nominal damages and for costs and reasonable attorney fees. They also requested the court to find that the zero compensatory damages verdict was perverse and to "affix an amount of damages for each plaintiff or in the alternative order a new trial on the issue of damages." The inmates requested no relief from the verdict on their Fourteenth Amendment due process claims.
The motions were initially set to be heard on November 18, 1994, but the hearing was rescheduled to December 14, 1994. The trial court heard arguments and set a supplemental briefing schedule. In a written decision dated and filed April 28, 1995, the trial court denied the inmates' motions for judgment notwithstanding the verdict on their Eighth Amendment claims and their motion for a new trial on the negligence claims. However, stating that "[d]uring the course of the trial the Court made a ruling that as a matter of law, the Defendants violated the Plaintiffs' civil rights when it placed the inmates in cell 46 which did not provide a sink or sanitary toilet," the court concluded the lack of a sink and toilet in cell 46 violated administrative rules and "deprived the Plaintiffs of a liberty and/or property interest without due process of law."
The court went on to conclude that the inmates "should" be awarded damages for "being deprived of this liberty interest," and that "[a] mere slap on the wrist or the award of the symbolic sum of one dollar does not teach a lesson or bring home a message." It determined damages as follows:
I award each plaintiff one hundred dollars for each day, or part thereof, in which they were housed in cell 46 during the period of time in question. This translates as follows: Khalar $300; Kirsch $700; and Emerson $2500.
The inmates then moved the court, as prevailing parties, for an award of costs and attorney fees under 42 U.S.C. § 1988. Judgment was entered on October 24, 1995, awarding the inmates a total of $3,500 "for violation of plaintiffs' fourteenth amendment due process rights." The judgment also awarded $8,366.99 in costs and $50,000 in fees to the inmates' attorneys. From this judgment, the officials appeal.
Section 805.16(3), STATS., requires that judgment be entered on a jury verdict if the trial court has not decided a post-verdict motion within 90 days after the verdict is rendered. A court's failure to act within 90 days after the verdict results in a loss of "competency to exercise its jurisdiction" to alter or set aside the verdict. Jansen Co. v. Milwaukee Area Dist. Bd., 105 Wis.2d 1, 10, 312 N.W.2d 813, 817 (1981).
Here, the court's decision to enter a judgment contrary to the jury's verdict on the Fourteenth Amendment claims was made some 196 days after the jury's October 14, 1994 verdict. 4 The record contains no orders enlarging the 90 day time limit, nor would any such orders be effective had they been made. See § 801.15(2)(c), STATS. (time for deciding motions after verdict under § 805.16(3) may not be enlarged); Ford Motor Co. v. Lyons, 137 Wis.2d 397, 418-21, 405 N.W.2d 354, 362-64 (Ct.App.1987); Brookhouse v. State Farm Mut. Auto. Ins., 130 Wis.2d 166, 169-70, 387 N.W.2d 82, 83-84 (Ct.App.1986). We conclude the judgment in favor of the inmates on their Fourteenth Amendment claim must be reversed and a judgment on the verdict entered under § 805.16(3), STATS.
Except for their general argument that the trial court's alteration of the jury verdict was "without lawful authority" and "contrary to the post-verdict provisions of chapter 805, Stats.," the officials do not raise the issue of the time bar under § 805.16(3), STATS. The inmates, therefore, do not specifically address the issue in their responsive brief. Rather, they argue that the trial court's action should be affirmed because there was no credible evidence that the inmates' Fourteenth Amendment rights were not violated, that the trial court's $3,500 damage award was appropriate, that the officials were not entitled to qualified immunity, and that the attorney fees award was proper.
Even though the parties have not directly addressed in their briefs the grounds on which we conclude this judgment must be reversed, the law is well settled that the trial court's untimely post-verdict order was a "nullity." See Brandner v. Allstate Ins. Co., 181 Wis.2d 1058, 1071, 512 N.W.2d 753, 759 (1994); Watts v. Watts, 152 Wis.2d 370, 377-78, 448 N.W.2d 292, 295 (Ct.App.1989); Manly v. State Farm Fire & Cas. Co., 139 Wis.2d 249, 254-55, 407 N.W.2d 306, 307-08 (Ct.App.1987). If the inmates are to obtain relief from a judgment on the verdict in this case, it must come, if at all, from our discretionary authority under § 752.35, STATS.:
The expiration of the ninety-day time limit deprived the trial court of competency to exercise its jurisdiction to decide the motions after verdict. Pursuant to sec. 805.16, Stats., the motions should have been deemed denied.
We, then, proceed on the basis that the motions after verdict are deemed denied, but we review the record to determine whether, in the interest of justice, we should invoke our power under sec. 752.35, Stats., to accomplish the result the trial court attempted to accomplish....
Schmorrow v. Sentry Ins. Co., 138 Wis.2d 31, 38, 405 N.W.2d 672, 675-76 (Ct.App.1987) (citations omitted). We will therefore consider the inmates' arguments only in the context of whether to grant discretionary relief under § 752.35. 5
Because the trial court granted relief from the verdict after its competency to alter the verdict had expired, it is appropriate that we review the record under § 752.35, STATS., to determine whether it is "proper to direct a judgment." See Jansen Co. v. Milwaukee Area Dist. Bd., 105 Wis.2d 1, 10-11, 312 N.W.2d 813, 817 (1981). The inmates have not appealed the trial court's denial of their post-verdict motions regarding the Eighth Amendment and negligence claims. Thus, we only consider...
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