Schauer v Thornton
| Decision Date | 25 August 1999 |
| Docket Number | 98-1180 |
| Parties | 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 808.10 and Rule 809.62, Stats. Margaret A. Schauer, Plaintiff-Respondent- Cross-Appellant, v. J. Dennis Thornton, Defendant-Appellant- Cross-Respondent.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II |
| Court | Wisconsin Court of Appeals |
APPEAL and CROSS-APPEAL from a judgment and an order of the circuit court for Waukesha County: JAMES R. KIEFFER, Judge. Affirmed and cause remanded.
Before Nettesheim, Anderson and Wilk,1 JJ.
Dennis Thornton, the former District Attorney of Washington County, appeals from a judgment awarding Margaret A. Schauer $500,000 in compensatory damages and $150,000 in punitive damages. The judgment is premised upon a jury verdict finding that Thornton, during his tenure as district attorney, defamed Schauer after she had resigned her position as an assistant district attorney with Thornton's office. The jury also determined that Thornton had invaded Schauer's privacy and awarded her an additional $500,000 in damages. However, the trial court ordered a new trial as to this claim. Schauer cross-appeals this ruling.
Thornton raises the following issues on appeal: (1) the Worker's Compensation Act (WCA), ch. 102, Stats., represents Schauer's exclusive remedy; (2) the trial court should have dismissed Schauer's action because she had not timely complied with the notice of claim provisions of 893.82(3), Stats.; (3) the evidence is insufficient to support the jury's liability findings and damage awards; (4) the evidence is insufficient to support the jury's findings that Thornton abused his conditional privilege as to the defamation claim; (5) the trial court erroneously admitted prejudicial evidence at trial; and (6) Schauer's damages are capped at $250,000 pursuant to 893.82(6) and the State of Wisconsin must indemnify Thornton in such amount because he was acting within the scope of his employment. See 895.46(1), Stats. We reject Thornton's arguments and affirm the judgment as to the defamation claim.
Schauer cross-appeals, challenging the trial court's ruling granting Thornton a new trial as to the invasion of privacy claim. Schauer argues that: (1) Thornton waived his right to complain that the court failed to instruct the jury as to conditional privilege because Thornton did not object to the jury instructions or the special verdict, (2) the trial court's instructions were otherwise correct, and (3) the invasion of privacy claim was fully tried and justice did not miscarry. We reject Schauer's arguments. We affirm the order granting a new trial on the invasion of privacy claim.
Schauer was employed as a Washington County Assistant District Attorney from June 1988 until she resigned on September 24, 1989. In September 1988, shortly after Schauer began her employment, Thornton became the Washington County District Attorney. In the spring of 1994, almost five years after leaving the district attorney's office, Schauer became aware of statements that Thornton had allegedly made to others regarding the circumstances of her departure from the office and a relationship that she had had with a married state trooper during her employment with Washington county. Specifically, Schauer learned that Thornton had stated that he had "fired" Schauer and that Schauer had engaged in sex with a state trooper on her desk in her office.
On September 22, 1995, Schauer filed her original complaint alleging invasion of privacy, intentional infliction of emotional distress and, in the alternative, negligent infliction of emotional distress. The case was assigned to Judge Patrick L. Snyder, who conducted all of the pretrial proceedings in this case. The case was later assigned to Judge James R. Kieffer who conducted the jury trial and postverdict proceedings. Save one, all of the rulings we review on this appeal were made by Judge Kieffer.
Schauer's initial complaint named Thornton as a defendant both individually and as an employee of the State of Wisconsin, although the State was not a named defendant. Schauer did, however, name Washington county and its insurer, Employers Insurance of Wausau, as additional defendants. On November3, 1995, Schauer filed an amended complaint which added the defamation claim. On December 4, 1995, Thornton, represented by private counsel, filed a motion to dismiss, together with his answers and affirmative defenses to both the original and amended complaints. Thornton's affirmative defenses included a statute of limitations defense. On January 3, 1996, Thornton followed with an initial motion for summary judgment seeking dismissal of the action on statute of limitations grounds. On February 14, 1996, Schauer filed her second amended complaint, alleging that she did not discover that Thornton had made defamatory statements and invaded her privacy until the spring of 1994. The appellate record does not reveal any hearing on Thornton's initial summary judgment motion. We assume that Schauer's second amended complaint which refuted Thornton's statute of limitations defense rendered the motion moot.
Although the State of Wisconsin was not a named defendant, it nonetheless filed an answer on Thornton's behalf to Schauer's second amended complaint on February 23, 1996, "to the extent [Thornton] has been sued in his capacity as `an employee of the State of Wisconsin.'" Thornton's private counsel also responded with an answer to Schauer's second amended complaint.
On July 2, 1996, Thornton filed a further motion for summary judgment alleging that Schauer's claims were barred by the exclusive remedy provisions of the WCA. On July 30, 1996, Judge Snyder issued a written decision denying Thornton's motion, ruling that the WCA did not apply because Schauer was not employed with Washington county at the time of Thornton's alleged tortious acts.
On July 15, 1996, Thornton, acting through counsel provided by the State, entered into a stipulation with Schauer providing that "the above-entitled action against J. Dennis Thornton as an employee of the State of Wisconsin may be dismissed with prejudice." Based upon this stipulation, Judge Snyder signed an order on July 22, 1996, dismissing the action with prejudice against Thornton "as an employee of the State of Wisconsin." Thornton's appellate brief represents that the stipulation and order were based upon Schauer's failure to timely comply with the 120-day deadline for filing a notice of claim with the attorney general pursuant to 893.82(3), Stats.
Judge Snyder also dismissed Schauer's action against Washington county and its insurer. This dismissal was based upon the fact that all of Thornton's alleged conduct occurred after January 1, 1990, when all district attorneys became state employees. See Association of State Prosecutors v. Milwaukee County, 199 Wis.2d 549, 553, 544 N.W.2d 888, 889 (1996); 978.12, Stats.
Therefore, after the State and Washington county were dismissed from the action, only Schauer's personal claims against Thornton remained.
On August 28, 1996, Thornton filed a third motion for summary judgment requesting that Schauer's claims against him personally also be dismissed for her failure to provide notice of claim pursuant to 893.82(3), Stats. After hearing the arguments of counsel, Judge Snyder denied the motion based upon the existing state of the record. The judge indicated, however, that the issue could be revisited at trial.
Prior to trial, Thornton filed a motion in limine seeking to confine the evidence at trial to his alleged statements that he had fired Schauer and that Schauer had engaged in sex with a state trooper in her office. Judge Snyder granted Thornton's motion.
Judge Kieffer presided over the jury trial which lasted three days. At the close of Schauer's case-in-chief, Thornton moved to dismiss the claims contending that Schauer had failed to establish that he made the statements in question. Judge Kieffer denied Thornton's motion. On December 11, 1997, the jury returned a verdict finding in favor of Schauer on her claims of defamation and invasion of privacy2 The jury awarded $500,000 in compensatory damages and $150,000 in punitive damages for defamation, and $500,000 in compensatory damages for invasion of privacy.
Thornton filed postverdict motions. He requested a directed verdict based on lack of evidence to support the jury's liability findings and damage awards. Thornton also sought judgment notwithstanding the verdict, a new trial in the interest of justice and a remittitur of damages. Judge Kieffer granted Thornton's motion for a new trial on the invasion of privacy claim, ruling that the court had erred by failing to instruct the jury on the law of conditional privilege. However, Judge Kieffer denied Thornton's other motions.
Thornton appeals. Schauer cross-appeals. We will discuss additional facts as we discuss each issue.
We first address our jurisdiction. Although Schauer does not raise any jurisdictional objections to Thornton's appeal, we nonetheless are permitted to make our own inquiry as to our jurisdiction. "That the question of appealability has not been raised by the parties is immaterial; such failure cannot confer jurisdiction." Thomas/Van Dyken Joint Venture v. Van Dyken, 90 Wis.2d 236, 241, 279 N.W.2d 459, 462 (1979).
We raise this question because this matter has not as yet been fully resolved in the trial court because of Judge Kieffer's postverdict order granting Thornton a new trial on Schauer's invasion of privacy claim. "Only orders or judgments which are final and which have been appropriately entered in the clerk's office are appealable as a matter of right." Wick v. Mueller, 105 Wis.2d 191, 193-94, 313 N.W.2d 799, 800-01 (1982); 8...
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