RecycleWorlds Consulting Corp. v. Wisconsin Bell

• Decision Date: 28 January 1999
• Docket Number: No. 98-0752,98-0752
• Citation: 224 Wis.2d 586,592 N.W.2d 637
• Parties: RECYCLEWORLDS CONSULTING CORP., Plaintiff-Appellant, v. WISCONSIN BELL d/b/a Ameritech Wisconsin, Ameritech Publishing, Inc., and Ameritech Corporation, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 637

592 N.W.2d 637

224 Wis.2d 586

RECYCLEWORLDS CONSULTING CORP., Plaintiff-Appellant, v. WISCONSIN BELL d/b/a Ameritech Wisconsin, Ameritech Publishing, Inc., and Ameritech Corporation Defendants-Respondents.

No. 98-0752.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 11, 1998.

Opinion Released Jan. 28, 1999.

Opinion Filed Jan. 28, 1999.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Frank J. Jablonski of Porter, Jablonski & Associates, S.C. of Madison.

On behalf of the defendants-respondents, the cause was submitted on the brief of Mark M. Leitner and C. Claibourne Greene of Kravit, Gass, Hovel & Leitner, S.C. of Milwaukee.

Before VERGERONT, ROGGENSACK and DEININGER, JJ.

DEININGER, J.

RecycleWorlds Consulting Corp. appeals a judgment under which it recovered $5,000 in contract damages from the defendants on account of their failure to list RecycleWorlds' telephone number in telephone directories for two successive years. ¹ RecycleWorlds asserts that the trial court erred in dismissing its tort-based claims against Ameritech and in denying its claim for statutory treble damages. We conclude, however, that the trial court properly limited RecycleWorlds' recovery to compensatory damages for Ameritech's breach of its contractual obligations. Accordingly, we affirm the judgment.

BACKGROUND

RecycleWorlds is a consulting firm. It obtained telephone service from Ameritech beginning in 1991 and its telephone number was listed in the business section of Ameritech's telephone directories through the 1994 edition. The RecycleWorlds listing was omitted, however, from both the 1995 and 1996 Ameritech directories. RecycleWorlds sued Ameritech, alleging both breach of contract and tort claims based on negligence and recklessness.

Ameritech moved to dismiss and to limit damages to the amounts provided for in the tariffs it had filed with the Wisconsin Public Service Commission (PSC). ² The trial court granted most of the relief Ameritech had requested but permitted RecycleWorlds to file an amended complaint "which fully addresses the problems highlighted in this decision." RecycleWorlds filed an amended complaint which alleged numerous tort and breach of contract claims against the several defendant entities and sought, in addition to compensatory damages, treble damages under § 196.64, STATS., and punitive damages. Ameritech moved to strike the first amended complaint and to dismiss the action. The court entered an order dismissing the amended complaint, but again permitted RecycleWorlds to re-plead "provided that only breach of contract is pleaded as a claim."

RecycleWorlds moved for reconsideration of the trial court's decision to permit only contract claims to survive, and the trial court denied this motion. The action thus proceeded on RecycleWorlds' "Second Amended Complaint," which alleged breach of contract claims but still sought statutory treble damages and punitive damages based on Ameritech's alleged "willful misconduct" and its "willful, wanton or reckless acts." During a subsequent hearing on a discovery dispute, the trial court noted that the second amended complaint appeared to violate its previous order limiting the action to one in contract, and the court directed briefing on the matter. After reviewing the submissions on the issue, the court ordered that "[a]ll portions of the Second Amended Complaint which relate to actions other than defendant's breach of contract are hereby STRICKEN."

The matter was then set for a trial to the court on the breach of contract claims. On the day before trial, RecycleWorlds moved for summary judgment on its contract claims, requesting an award of $5,000 in damages. Despite the lateness of the summary judgment motion, Ameritech acceded to entry of judgment in the amount requested by RecycleWorlds. ³ RecycleWorlds appeals the judgment, claiming that the trial court's pre-trial rulings erroneously limited its recovery to compensatory contract damages.

ANALYSIS

a. Standard of Review.

All of the trial court rulings at issue in this appeal address whether RecycleWorlds had stated claims upon which relief could be granted, and some of the rulings involve the interpretation of statutes and administrative regulations. These are questions of law which we review de novo, although we benefit from the trial court's thorough analysis of the legal issues set forth in its written decisions and orders. See State v. Isaac J.R., 220 Wis.2d 251, 255, 582 N.W.2d 476, 478 (Ct.App.1998).

b. Waiver of Right to Appeal.

At the outset, we address Ameritech's assertion that the appeal should be dismissed because RecycleWorlds "stipulated" to entry of a judgment in its favor on the contract claims. We disagree with both Ameritech's analysis on this point and with its characterization of how the appealed judgment came to be entered. It is true, as Ameritech argues, that a party may waive the right to appeal a judgment which it "has caused or induced to be entered or [if it] has consented or stipulated to the entry of a judgment." See Cascade Mountain, Inc. v. Capitol Indem. Corp., 212 Wis.2d 265, 269, 569 N.W.2d 45, 47 (Ct.App.1997), review denied 212 Wis.2d 689, 569 N.W.2d 590 (1997). In Cascade Mountain, the appellant had stipulated to a conditional judgment that provided that, if the appellate court reversed a summary judgment dismissing certain claims, the parties would be permitted to re-litigate a claim which had neither been dismissed by the trial court nor tried to finality. Our principal concern in Cascade Mountain, as Ameritech acknowledges, was the manipulation of the strict rules of appellate review by a party in order to convert "discretionary, interlocutory appeals into appeals as a matter of right from 'final' orders or judgments." Id. at 269-70, 569 N.W.2d at 47.

By contrast, RecycleWorlds here litigated its compensatory contract damages claim against Ameritech to finality, obtaining an unconditional judgment for $5,000 in compensatory damages on that claim. RecycleWorlds did not "consent" to the entry of the appealed judgment--Ameritech did. RecycleWorlds is not precluded from appealing the trial court orders which denied it the opportunity to litigate its claims for tort damages and for statutory treble damages simply because Ameritech elected not to contest the entry of the $5,000 contract damages judgment which RecycleWorlds sought. As we discuss further below, RecycleWorlds may not now claim that it should have received more than $5,000 in compensatory damages for Ameritech's breach of the telephone service contract. However, we do not interpret its principal arguments on appeal as making that claim. Rather, RecycleWorlds claims in this appeal that it should have been permitted: (1) to try the claims it alleged on various tort theories, and (2) to prove "willful, wanton or reckless" acts on the part of Ameritech that would entitle it to recover treble damages.

Ameritech also argues that RecycleWorlds may not appeal a judgment "if the judgment does not include terms adverse to" RecycleWorlds, citing Uebelacher v. Plankinton Packing Co., 251 Wis. 87, 89, 28 N.W.2d 311, 312 (1947). Again we disagree. The judgment in this case which finally "dispose[d] of the entire matter in litigation as to one or more of the parties" is appealable as a matter of right. See § 808.03(1), STATS. Although that judgment contains only an order that RecycleWorlds recover $5,000 from Ameritech on its breach of contract claims, the appeal of the final judgment "brings before [this] court all prior non-final judgments, orders and rulings adverse to the appellant and favorable to the respondent made in the action." RULE 809.10(4), STATS. If we were to dismiss this appeal on the rationale put forward by Ameritech, no claimant who prevailed on some, but not all, of its claims in the trial court could obtain review of the allegedly erroneous dismissal of any claims prior to the final judgment or order. Finally, we note that the supreme court has stated that:

[A]cceptance of payment under a judgment for less than the amount claimed does not prevent an appeal to modify the judgment in order to increase the recovery to the full amount claimed. Where the appeal is confined to liability for the balance claimed, the appellant does not waive his right to review by accepting the partial amount provided for in the judgment appealed from.

Stevens Constr. Corp. v. Draper Hall, Inc., 73 Wis.2d 104, 111, 242 N.W.2d 893, 896 (1976) (citations omitted).

c. Dismissal of Tort Claims.

We turn next to RecycleWorlds' claim that the trial court erred in not permitting it to pursue tort claims alleging negligent and reckless conduct on Ameritech's part. Although it resisted the notion in the trial court, RecycleWorlds now appears to accept the proposition that in order to recover damages in tort from Ameritech, it must identify a legal duty on Ameritech's part requiring it to list RecycleWorlds' telephone number in the Ameritech directories, which exists independent of the contract between the parties for telephone service. See Madison Newspapers, Inc. v. Pinkerton's, Inc., 200 Wis.2d 468, 473, 545 N.W.2d 843, 846 (Ct.App.1996).

RecycleWorlds would first have us find such an independent duty in § 196.03(1), STATS., which requires regulated telecommunications utilities to provide "reasonably adequate service." According to RecycleWorlds, a directory listing "is a standard and necessary component of service, embedded in the utility customer's right to service." In support of this argument, RecycleWorlds points to WIS. ADMIN. CODE § PSC 160.03(2)(a)(15), which includes within the definition of "essential telecommunications service" a "directory listing with the option for non-listed and non-published service," and § PSC 165.055(1) which requires that "alphabetical telephone directories shall be made available to customers without charge." Further, RecycleWorlds...