Pausch v. Cormier

• Decision Date: 26 July 2011
• Docket Number: Cir. Ct. No. 2008CV17208,Appeal No. 2010AP2329
• Parties: LAUREN I. PAUSCH, PLAINTIFF-RESPONDENT, v. CHRISTOPHER S. CORMIER, THEODORE F. VANSINGEL AND TODD J. DIPIERO, DEFENDANTS-APPELLANTS.
• Court: Court of Appeals of Wisconsin

LAUREN I. PAUSCH, PLAINTIFF-RESPONDENT,

v.CHRISTOPHER S. CORMIER,THEODORE F. VANSINGELAND TODD J. DIPIERO, DEFENDANTS-APPELLANTS.

Appeal No. 2010AP2329

Cir. Ct. No. 2008CV17208

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I

July 26, 2011

A. John Voelker Acting Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

APPEAL from an order of the circuit court for Milwaukee County: THOMAS R. COOPER, Judge. Affirmed in part and cause remanded with directions.

Before Fine, Kessler and Brennan, JJ.

¶1 FINE, J. Christopher S. Cormier, Theodore F. Vansingel, and Todd J. Dipiero appeal the order requiring them to pay Lauren I. Pausch $1,030,847.59compensatory and $1.5 million punitive damages, which the circuit court awarded following a default judgment entered on Pausch's intentional-tort complaint against the three men. Cormier, Vansingel, and Dipiero claim: (1) the circuit court erroneously exercised its discretion when it denied their motion to vacate the default judgment; (2) there is insufficient evidence to support the $1 million compensatory damage award (the defendants do not challenge the $30,847.59 part of this award); and (3) the circuit court erred in awarding punitive damages because, they argue: (a) it awarded punitive damages to compensate instead of punish, (b) it awarded too much, and (c) it did not allow evidence of the defendants' wealth. We affirm the circuit court's denial of the defendants' motion to vacate the default judgment, and we affirm its award of compensatory damages. We also hold that the circuit awarded punitive damages for the proper purpose—to punish—and that the punitive damage award was not excessive. We remand, however, for clarification as to whether the punitive award was imposed jointly or individually.

I.

¶2 In November of 2008, Pausch sued Cormier, Vansingel, and Dipiero for assault, battery, conversion, and civil conspiracy based on her allegations that in June of 2007, while at a bar, these three men drugged her, took her to a hotel, and repeatedly sexually assaulted her. The defendants did not file an answer or any responsive pleading. In September of 2009, Pausch sought default judgment. In October of 2009, on the date set for the default-judgment hearing, Cormier, Vansigel, and Dipiero came to court pro se. The circuit court deferred ruling on the default-judgment motion so the defendants could get a lawyer. In November of 2009, only Dipiero showed up for the scheduled status conference. He told the circuit court that the defendants had not hired a lawyer. The circuit court grantedPausch's motion for default, and scheduled the "prove-up" damages hearing for February of 2010. See WIS. STAT. RULE 806.02(5) ("A default judgment may be rendered against any defendant who has appeared in the action but who fails to appear at trial. If proof of any fact is necessary for the court to render judgment, the court shall receive the proof.").

¶3 Forty-five minutes before the start of the February 2010 damages hearing, the defendants hired a lawyer who filed a motion under WIS. STAT. RULE 806.07(1), asking the circuit court to vacate the default judgment, claiming "excusable neglect." See WIS. STAT. RULE 801.15(2) (a) ("When an act is required to be done at or within a specified time" the circuit court may not "enlarge" the period after the time has expired unless the moving party proves "excusable neglect.").¹

¶4 The circuit court denied the motion and set a date for the damage hearing. At the damage hearing, the circuit court ordered the defendants to pay: (1) $30,847.59 as compensatory damages for out-of-pocket expenses; (2) $1 million as additional compensatory damages; and (3) $500,000 in punitive damages against each defendant for a total of $1.5 million in punitive damages.

II.

A. Motion to vacate the default judgment.

¶5 A party moving to vacate a default judgment under WIS. STAT. RULE 806.07(1)(a) must show: (1) that the judgment "was obtained as a result of mistake, inadvertence, surprise or excusable neglect;" and (2) "that he or she has a meritorious defense." J.L. Phillips Assocs, Inc. v. E & H Plastic Corp., 217 Wis. 2d 348, 358, 577 N.W.2d 13, 17 (1998). A circuit court has wide discretion in determining whether to vacate a default judgment. Dugenske v. Dugenske, 80 Wis. 2d 64, 68, 257 N.W.2d 865, 867 (1977). We will not reverse a discretionary decision when the record shows that the circuit court made a "reasoned application of the appropriate legal standard to the relevant facts in the case." Hedtcke v. Sentry Ins. Co., 109 Wis. 2d 461, 471, 326 N.W.2d 727, 732 (1982).

¶6 The defendants claim the circuit court erroneously exercised its discretion when it found that their neglect in not timely defending Pausch'slawsuit was not excusable. Excusable neglect is "that neglect which might have been the act of a reasonably prudent person under the same circumstances." Giese v. Giese, 43 Wis. 2d 456, 461, 168 N.W.2d 832, 834 (1969) (quoted source and one set of quotemarks omitted). It "is not synonymous with neglect, carelessness or inattentiveness," ibid., and "it is not sufficient that the failure to answer in a timely manner be unintentional and in that sense a mistake or inadvertent, since nearly any pattern of conduct resulting in default could alternatively be cast as due to mistake or inadvertence or neglect," Mohns, Inc. v. TCF Nat'l Bank, 2006 WI App 65, ¶9, 292 Wis. 2d 243, 249, 714 N.W.2d 245, 248 (quoted source and internal quotemarks omitted).

¶7 The defendants argue that their failure to answer was excusable because "they were facing criminal allegations," they were "unsophisticated litigants ... not familiar with the judicial system," and from "out-of-state."

¶8 The circuit court disagreed:

The question is what constitutes, quote, unquote, "excusable neglect." The point is, your clients were advised by this court repeatedly that they needed to get a lawyer so that we could move this matter forward.

. . . [O]nly one came back [to court.] Again I advised them [to get] a lawyer. And, quite frankly, counsel, they hired you 45 minutes before the prove-up date.

That -- I categorically reject the idea that your clients are unsophisticated. I find them remarkably sophisticated even though they were pro se litigants. Their delay in getting representation . disregarding my imploring them to do so on the repeated occasion is really an example of bad faith in my mind.

I, quite frankly, take a different view of your clients. I think they're gaming the system and they were delaying as far as they could, and they are not unsophisticated. And, therefore, I am denying the motion [to vacate the defaultjudgment] based upon my view of the totality of the circumstances, the bad faith of your client bringing you on 45 minutes before the prove-up date.

¶9 The circuit court did not erroneously exercise its discretion in refusing to set aside the default. Significantly, the summons and complaint served on the defendants specifically warned them that they had to respond in writing to Pausch's complaint "within forty-five (45) days" and that if they did not so respond "the Court may grant judgment against you." See WIS. STAT. RULES 801.095 & 801.09. Letting things slide until the prove-up hearing is not something that a reasonably prudent person would do. We affirm the circuit court's refusal to vacate the default judgment.

B. Compensatory damages.

¶10 A claimant has the burden to prove damages to a reasonable degree of certainty, but mathematical precision is not required. Plywood Oshkosh, Inc. v. Van's Realty Constr. of Appleton, Inc., 80 Wis. 2d 26, 31, 257 N.W.2d 847, 849 (1977). A claimant's conclusory assertions are not sufficient to support a damage claim; rather, damages must "be proven by statements of facts." Id., 80 Wis. 2d at 31, 257 N.W.2d at 849. Compensatory damages may include damages for mental pain and suffering. See Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 269, 580 N.W.2d 233, 241 (1998). The circuit court's findings on damages will not be reversed unless clearly erroneous. See WIS. STAT. RULE 805.17(2) ("Findings offact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.").

¶11 The defendants challenge the $1 million compensatory damage award, arguing that: (1) because Pausch did not plead intentional infliction of emotional distress in the complaint, she should not be compensated for it; and (2) there is insufficient evidence to support the $1 million award. We disagree.

¶12 As the circuit court explained in determining the award for compensatory damages, "compensatory damages over and above the specials" are appropriate because "even if she was intoxicated, that does not give license for three individuals to sexually assault and sodomize" her. The circuit court referenced the three affidavits from Pausch's therapists, which documented the anguish, pain, and suffering suffered by Pausch as a result of the assaults, and that she will continue to suffer. One therapist described Pausch's symptoms: "intense fear and helplessness," "flashbacks about the traumatic event," "nightmares and recurring dreams about the trauma," "recurrent distress," "shortness of breath, racing thoughts, panic feelings, sweating," "sense [of] foreshortened future," "restricted range of affect," "detachment," "decreased interest and participation in activities," "avoid[ance]," "amnesia," "decreased concentration," and "hypervigilance." These symptoms are "moderate to severe [in] range resulting in a significant decrease in overall functioning." Another therapist said she was "suffering from long-term effects of P[ost] T[raumati...