White v. Ruditys
| Decision Date | 27 December 1983 |
| Docket Number | No. 83-127,D,AFL-CI,83-127 |
| Parties | Robert L. WHITE, Plaintiff-Respondent, v. Joseph T. RUDITYS, John Schuster, Gerald Frank, Anthony Nikulski, August Erdmann, and Milwaukee Professional Firefighters', Local 215, IAFF,efendants-Appellants. |
| Court | Wisconsin Court of Appeals |
James C. McNeely and Michael L. Smith, Milwaukee, for plaintiff-respondent.
Before WEDEMEYER, P.J., and DECKER and MOSER, JJ.
Joseph T. Ruditys, John Schuster, Gerald Frank, Anthony Nikulski, August Erdmann and Milwaukee Professional Firefighters, Local 215, IAFF, AFL-CIO (Union) appeal from those parts of a judgment entered March 1, 1983, wherein the trial court permanently enjoined the Union from the enforcement of the Union resolution of April, 1981, awarded Robert L. White punitive damages of $25,000 and awarded White $10,037.50 as actual attorney fees. On appeal the Union raises the following issues: (1) whether White's action was barred by the one-year statute of limitation contained in sec. 111.07(14), Stats.; (2) whether the trial court erred in granting White a permanent injunction because White had failed to prove that the Union's strike was illegal; (3) whether the trial court erred in awarding White punitive damages, and; (4) whether the trial court erred in awarding White actual attorney fees. We affirm that part of the judgment granting the injunction. While we agree with the trial court that punitive damages and attorney fees may be awarded in an equitable action, we reverse the instant awards of punitive damages and attorney fees because the trial court misused its discretion by failing to apply the proper factors. Accordingly, we remand the cause for further proceedings consistent with this opinion.
This action arose from two strikes led by the Union. The first strike occurred March 1, 1981. The city of Milwaukee brought suit to enjoin this strike on the ground that it was unlawful. This suit was dismissed without prejudice before the trial court could resolve that issue. The second strike occurred March 20, 1981. Again, the city sought to enjoin that strike. While the trial court granted the city a temporary injunction, this suit was also dismissed prior to the granting of a permanent injunction.
White continued to work during the March 1 strike. At a meeting held on April 13 and 14, 1981, the Union adopted a resolution describing White and another firefighter, who also worked during the strike, as "two scabs;" recording them as being in bad standing; imposing a $500 fine; requesting them to apologize and depriving them of the right to trade shifts with other members. The resolution also provided that their names would be read at union meetings, that they each must perform forty-eight hours of work for the Union and that other members were to hold them in disdain and report any unusual behavior by them.
In his complaint, filed with his request for the temporary restraining order, White sought $5,000 compensatory and $100,000 punitive damages for the Union's alleged intentional infliction of emotional distress, and $1,000 compensatory and $5,000 punitive damages for the Union's alleged conversion of his union dues. He also sought On May 28, 1982, White sought and was granted an ex parte temporary restraining order directing the Union to desist from implementing the resolution. A hearing for a temporary injunction was held June 2, 1982. The trial court denied the temporary injunction.
to enjoin the Union from implementing the resolution.
The Union in its answer asserted, as an affirmative defense, that the matter should be submitted to the Wisconsin Employment Relations Commission (WERC) and that White's action was barred by the one-year statute of limitations contained in sec. 111.07(14), Stats.
The Union moved for summary judgment on White's claims for intentional infliction of emotional distress and conversion. In an oral decision rendered October 5, 1982, the trial court granted the Union's motion. No appeal was taken from the granting of summary judgment. The only issue remaining for the trial court to consider was whether Union should be enjoined from implementing the resolution.
Following the trial, the trial court enjoined the implementation of the resolution. The trial court also, sua sponte, raised the issues of punitive damages and attorney fees. The trial court directed the parties to brief these issues. After the briefs were submitted, the trial court awarded White $25,000 in punitive damages and $10,037.50 in attorney fees, calculated at the "suggested rate of $125 per hour."
The Union first argues that the instant action is barred by the one-year statute of limitations contained in sec. 111.07(14), Stats. The Union contends that the trial court erred in not transferring this case to the WERC. We are not persuaded by this argument.
This action comes within the ambit of sec. 111.70, Stats. and as such, sec. 111.70(4)(a) applies. Section 111.70(4)(a) reads as follows:
Section 111.07 shall govern procedure in all cases involving prohibited practices under this subchapter except that wherever the term "unfair labor practices" appears in s. 111.07 the term "prohibited practices" shall be substituted.
Section 111.07(1), Stats., establishes concurrent jurisdiction in the WERC and the circuit court. That section reads as follows:
Any controversy concerning unfair labor practices may be submitted to the commission in the manner and with the effect provided in this subchapter, but nothing herein shall prevent the pursuit of legal or equitable relief in courts of competent jurisdiction. [Emphasis added.]
On review of a trial court's decision to retain jurisdiction, this court must determine whether the trial court abused its discretion. Browne v. Milwaukee Board of School Directors, 83 Wis.2d 316, 328, 265 N.W.2d 559, 564 (1978).
In discussing whether the WERC or the circuit court should exercise jurisdiction, the supreme court has stated:
[Citation Because the trial court had to determine whether the Union had breached its own constitution and by-laws and whether the strike was illegal, we conclude that the trial court did not misuse its discretion by retaining jurisdiction over this action.
omitted.] Id. at 329, 265 N.W.2d at 564-65.
The Union next contends that, even if it was proper for the trial court to retain jurisdiction over this action, the trial court was required to apply the same statute of limitations contained in sec. 111.07(14), Stats. We disagree.
Section 111.07(14), Stats., reads as follows: "The right of any person to proceed under this section shall not extend beyond one year from the date of the specific act or unfair labor practice alleged." [Emphasis added.]
This one-year statute of limitations applies only to actions proceeding under sec. 111.07, Stats. As noted above, sec. 111.07(1) concerns controversies submitted to the commission. It further states that "nothing herein shall prevent the pursuit of legal or equitable relief in courts of competent jurisdiction." Here, White sought relief in the circuit court. Therefore, we conclude the strictures of sec. 111.07 are not applicable. See Tully v. Fred Olson Motor Service Co., 27 Wis.2d 476, 488-89, 134 N.W.2d 393, 399 (1965).
The Union next argues that the trial court erred in granting White a permanent injunction because White had failed to prove that the Union's strike was illegal. We do not agree.
The record reflects that the trial court took judicial notice of the fact that Judge Miech, when issuing the temporary injunction enjoining the strike, stated: "Court issues, reluctantly, temporary injunction upon--pursuant to sec. 813.02, sec. 111.70(7)(m) upon complaint and testimony of Chief Stamm, Court finds petitioner, City of Milwaukee, has met burden of proof and further ordered defendants, Milwaukee Professional Firefighters Association, Local 215, et al., desist from illegal strike." [Emphasis added.] We note that the Union did not object to the trial court taking judicial notice of this fact. Because no challenge was made by either party to the legality of the strike during the trial, we will not entertain this issue now.
In discussing the requirements for a permanent injunction, the supreme court has stated:
The injunction is a preventive order looking to the future conduct of the parties. To obtain an injunction, a plaintiff must show a sufficient probability that future conduct of the defendant will violate a right of and will injure the plaintiff. To invoke the remedy of injunction the plaintiff must moreover establish that the injury is irreparable, i.e. not adequately compensable in damages. Finally, injunctive relief is addressed to the sound discretion of the trial court; competing...
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