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COURT OF APPEALS
DECISION
DATED AND FILED
June 10, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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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.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT III
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Gerald Tyler,
Plaintiff-Appellant,
v.
The Riverbank,
Defendant-Third-Party
Plaintiff-Respondent,
ABC Insurance Company,
Defendant,
v.
Bianca Tyler,
Third-Party
Defendant.
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APPEAL
from a judgment and an order of the circuit court for Polk County: ROBERT
RASMUSSEN, Judge. Affirmed.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. Gerald
Tyler, pro se, appeals a judgment, entered on a jury’s verdict, finding The
Riverbank not liable for losses Tyler
claims he suffered when his wife Bianca made withdrawals from certain
accounts. In essence, Tyler alleges that the evidence does not
support the verdict and that the trial court made certain procedural errors
which corrupted the results. Tyler also appeals an
order denying his motion to change the jury’s answers, reiterating his
insufficient evidence argument. We
reject Tyler’s
arguments and affirm.
Background
¶2 With assistance from banker Kathy Jacobson, Tyler opened several accounts at Riverbank in
1996 and 1997, including a checking account, several short-term certificates of
deposit (CDs), and an individual retirement account (IRA). Only Tyler’s
name was on the accounts, and Bianca had no accounts of her own at Riverbank.
¶3 When Tyler set up his IRA and the CDs, it was his intent to
use the accounts to fund living expenses of $3,500 to $4,500 per month. He was self-employed as a real estate
developer from 1997-2000 and drew no salary from 1997-1999. Each month, Tyler withdrew funds from his CDs to pay
bills, and from his IRA to pay insurance premiums. Each time the CD balances changed, Riverbank
collected prior documentation and issued new certificates. With the exception of one, all CD withdrawals
were transferred into Tyler’s
checking account, not paid out in cash.
¶4 In 1997, Bianca offered to take over the family bookkeeping,
balancing Tyler’s
checkbook each month. She also began
making the CD and IRA withdrawals. Most
withdrawals, whether by Tyler or Bianca, were done by phone or mail. Riverbank indicated this was not unusual; it
had many “snowbird” clients who transacted some way other than in person. The first time Bianca called to complete a
transfer, Jacobson informed her the banker would need to speak to Tyler as the account holder. Tyler
informed Jacobson that from time to time, he would be out of town and would be
asking Bianca to make transactions.
¶5 Sometime in 1999, Bianca informed Tyler that there was $22,000 left in the
CD. Although Tyler thought the balance should be between
$60,000 and $80,000, he did not investigate the discrepancy. In October 1999, Tyler had surgery for prostate cancer,
followed by a period of treatment. By November
1999, there was nothing left in the CD and $39 in the IRA, which had an opening
balance of $130,000.
¶6 In June 2000, Tyler
sought copies of his records from Riverbank.
He believed Bianca had been forging his signature and raiding the
accounts to pay for expenses she incurred on her own, including a large Visa
bill. In January 2001, Tyler filed for divorce from Bianca. The divorce court found that Bianca had no
authority to withdraw from the IRA but had “at least tacit approval” from Tyler for CD withdrawals.
¶7 In March 2002, Tyler sued
Riverbank and its insurer, alleging breach of contract, breach of fiduciary duty,
and negligence, and seeking exemplary damages and actual attorney fees based on
what Tyler
asserted were unauthorized withdrawals from his IRA. In November 2002, Tyler filed an amended complaint, seeking
additional damages for unauthorized withdrawals from his CDs. Riverbank filed a third-party complaint
against Bianca for indemnification and contribution, in the event it were held
liable.
¶8 Riverbank sought summary judgment, arguing a three-year
statute of limitations applied and had expired.
The court granted the motion in part, dismissing Tyler’s claims for attorney fees and punitive
damages. Riverbank and Tyler both moved for reconsideration. The court denied Tyler’s
motion on damages but determined the statute of limitations barred Tyler’s claims for IRA
withdrawals predating March 4, 1999.
¶9 In June 2004, Tyler
sought an interlocutory appeal on the statute of limitations ruling. In July 2004, the trial court clarified its
prior ruling, stating the statute of limitations applied to both IRA and CD transactions. We denied the motion for an interlocutory
appeal.
¶10 Riverbank had filed a motion in limine to preclude Tyler from mentioning his
cancer diagnosis, treatment, and effects thereof. The court granted this motion just before the
start of trial on March 29, 2005. The
jury ultimately concluded that Tyler had given
Bianca authority to make transactions; Riverbank had not breached the contract,
was not negligent, and was not liable for any loss; Tyler himself was negligent
and, in any event, Tyler
had not suffered any losses from Riverbank’s account management.
¶11 Tyler
moved to set aside the verdict or, in the alternative, for a new trial, arguing
the evidence was insufficient to support the verdict. The court denied the motion. Tyler
appealed. We raised on our own motion
the question of the whether the appeal was timely filed. We concluded it had not been and dismissed the
appeal for lack of jurisdiction. Tyler petitioned the
supreme court for review. The court
granted the petition and concluded that the appeal was timely. The case is now before us on the merits.
Discussion
¶12 Tyler
makes two types of arguments on appeal.
First, he argues the evidence is insufficient to support the jury’s
verdicts. Second, he argues various
trial court errors affected the outcome of the case.
I. Sufficiency of the Evidence
¶13 Tyler
moved to change the jury’s answers. This
is a challenge to the sufficiency of the evidence supporting the verdict. Johnson v. Neuville, 226 Wis. 2d 365, 378,
595 N.W.2d 100 (Ct. App. 1999). We will
not upset a verdict if there is any credible evidence to support it, and we
will examine the record for evidence to sustain the jury’s determination. Id. The evidence must, under any reasonable view,
support the verdict and be sufficient to remove the question from the realm of conjecture
and speculation. Id.
If more than one reasonable inference my be drawn, we are obligated to accept
the jury’s verdict. Id.
A. Breach of Contract
¶14 Tyler
alleges the CD paperwork created his contract with Riverbank and cites language
stating: “Only those of you who sign the permanent signature card
may withdraw funds from this account….” He
contends that because Bianca’s signature was not on the card, Riverbank
breached the contract by permitting her to make withdrawals. Tyler
further complains about eleven allegedly forged signatures and nine withdrawals
made with no signature. The IRA paperwork
stated that “requests for withdrawal shall be in writing on a form provided by
or acceptable to us. The method of distribution
must be specified in writing.” Tyler complains Riverbank
breached the contract by allowing Bianca to make withdrawals by phone.
¶15 Questions five and eight specifically asked whether Riverbank
had breached these contracts. The jury
answered no to both questions. Tyler asserts there is
“simply no evidence in the record to support the jury’s finding that The
RiverBank’s actions in honoring the … withdrawal requests made by Bianca … was not
a breach of the contract.”
¶16 Tyler’s
argument completely ignores the first four questions of the verdict. Those questions asked whether Bianca was Tyler’s agent for the purposes of transactions on the CDs,
whether Bianca had apparent authority to make transactions on the IRA, whether Tyler had ratified Bianca’s
activity on the CDs, and whether he had ratified the activity on the IRA. The jury concluded Bianca was Tyler’s agent, with apparent authority, and that Tyler had ratified her
actions.
¶17 An agent is one “authorized to act for or in place of
another….” Black’s Law Dictionary 68 (8th ed. 2004). Apparent
authority “binds a principal to acts of another who reasonably appears to a third
person to be authorized to act as the principal’s agent….” Mared Indus., Inc. v. Mansfield,
2005 WI 5, ¶22, 277 Wis. 2d
350, 690 N.W.2d 835. Thus, the first question
is whether there is sufficient evidence to support the jury’s conclusions that Bianca
was Tyler’s
agent and had apparent authority. We
conclude there was. Jacobson testified Tyler had informed her
that Bianca would be making withdrawals for him from time to time. Moreover, Tyler admitted that he knew Bianca was making
arrangements for the monthly transfers from his CDs to his checking account
because he had authorized her to do so.
¶18 It was also appropriate for the jury to conclude Bianca had
apparent authority. Whether Tyler intended to give her
authority or not, it would have reasonably appeared to Riverbank, as the “third
person,” that Bianca was authorized to act as his agent for IRA
transactions. In any event, Tyler ignores the apparent
authority argument. Arguments not
refuted are deemed admitted. Charolais
Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct.
App. 1979).
¶19 The second question is whether there is sufficient evidence that
Tyler ratified Bianca’s
actions. Ratification is “a definitive
manifestation of intent to become a party to the transaction done or purported
to be on [one’s] account.” M&I
Bank v. First Am. Nat’l Bank, 75 Wis. 2d
168, 181, 248 N.W.2d 475 (1977). Here, Tyler’s intent was
manifested by his lack of protestation.
¶20 In 1999, when Bianca informed Tyler of the balance in the CD
and Tyler thought it was in error, he did not investigate. He received monthly statements for his checking
and CD accounts, showing the account balances.
Deposit slips—reflecting the funds put in the checking accounts—were
sent with each statement. Every time a
CD had a withdrawal, Riverbank issued a new certificate for the account’s new
balance. As to his IRA account, Tyler was provided annual
summaries for 1997 though 2000 and received 1099-R tax forms reflecting distributions
from the IRA in 1998 and 1999. Tyler also signed tax
returns for those years, reflecting IRA payments.
¶21 The CD and IRA documents, which Tyler
says created the contractual relationship, require account holders to dispute
questionable transactions within sixty days of their occurrence, but Tyler first complained to Riverbank
in May 2000. Moreover, even had Tyler never planned to
let Bianca access the accounts, he was alerted to her attempts when Jacobson
called him during Bianca’s first effort to make a withdrawal. Had Tyler
not wanted Bianca to make transactions, he could have informed Jacobson at that
time. Given the information available to
him at any particular time in his bank records, and given that Tyler advised Riverbank
Bianca would be making some transactions, it was reasonable for the jury to infer
he had granted her agency and ratified her subsequent actions.
¶22 Turning to the breach questions, there was sufficient evidence
for the jury to find Riverbank had not breached the contract. Tyler
argues that because authorized individuals had to be listed on the signature
card, Riverbank committed a breach when it let Bianca make withdrawals. But because the jury found Bianca was Tyler’s agent, whenever
she made a transaction, it was as though Tyler himself were making the transaction. Tyler
also contends that Bianca forged his signature and that Riverbank allowed
withdrawals without signed withdrawal forms.
Although courts have struggled with the notion, the trend seems to be
that even forgeries can be ratified—sometimes, there may be a good reason for
allowing ratification—so long as the opportunity to pursue criminal charges is
not blocked. See id. at 178-80. Moreover,
we agree with Riverbank—the language about the signature card only indicates who may make a withdrawal, not how it may be transacted.
¶23 Tyler
also complains that the IRA language, requiring written withdrawal requests,
meant that Riverbank breached whenever there was an unwritten request. However, this obligation is one Riverbank
imposes on its customers, not one imposed on Riverbank. Riverbank itself was free to waive that
requirement. Also, the record suggests that Riverbank would perform the
transaction, then send out the request forms to be completed and returned. Ultimately, there was sufficient evidence
permitting the jury to conclude there was no breach of contract.
B. Negligence
¶24 Tyler also alleged negligence, complaining
Riverbank failed to exercise ordinary care by allowing withdrawals without
signatures or with forged signatures and by failing to verify Tyler’s intent. He asserts there is insufficient evidence for
the jury to have concluded Riverbank was not negligent. Again, this argument ignores the findings
Bianca was authorized to act on his behalf.
¶25 In any event, both parties presented expert testimony. Both experts testified that it was within
industry standards to permit banking by mail or phone, which might not permit a
signature, particularly when the transaction was not a cash withdrawal but a
transfer between two accounts belonging to the same individual. Both experts agreed that if Riverbank
complied with Tyler’s
intent, it was not negligent. Both
agreed that the customer’s intent should be verified but that there can be
multiple ways to do so. As noted, Tyler’s intent was demonstrated by his
failure to protest transactions despite the volumes of paperwork Riverbank set
to him, reflecting transactions and balances.
Tyler even
conceded that if he had read the paperwork Riverbank gave him, he probably
would have recognized a problem sooner. Thus,
the jury could properly infer that Tyler’s
negligence, not Riverbank’s, was the cause of his loss.
II. Alleged Trial Court Errors
A. Cancer Evidence
¶26 Tyler
claims the trial court erred when it failed to let him present evidence about
his cancer treatment. Tyler argues this evidence would have
explained his failure to check his statements to the jury, likely mitigating
its perception of his negligence.
¶27 The admission of evidence is generally left to the trial
court’s discretion. World Wide Prosthetic Supply,
Inc. v. Mikulsky, 2002 WI 26, ¶30, 251 Wis. 2d 45, 640 N.W.2d 764. Even otherwise admissible, relevant evidence
may sometimes be excluded if the court determines that the evidence’s prejudicial
nature outweighs its probative value. Wis. Stat. § 904.03 (2005-06). The court properly exercises its discretion
when it reviews the relevant facts, applies the correct law, and provides a
reasonable basis for its decision. Mared
Indus., 277 Wis. 2d
350, ¶9. We reverse only if the trial
court erroneously exercises its discretion.
¶28 The trial court here concluded that the evidence of Tyler’s cancer and
treatment was irrelevant or, alternatively, unfairly prejudicial. Although we do not go so far as to say this evidence
was irrelevant as a matter of law, we conclude the court properly exercised its
discretion when it concluded any probative value might be outweighed by
sympathy from the jury. The court knew Tyler was a sophisticated
businessman with corporate finance experience who was involved in certain professional
endeavors during his treatment, undercutting the suggestion that his cancer
distracted him from more mundane tasks like reviewing bank statements. Because of the risk the jury would be unduly
prejudiced by sympathy rather than facts, the court properly exercised its discretion
when it excluded evidence of Tyler’s
diagnosis and treatment.
B.
Other Alleged Errors
¶29 Tyler complains the trial court erred in applying a three-year
statute of limitations instead of a six-year statute of limitations and in
barring his claims for fraudulent transactions predating March 4, 1999. Determining the applicable statute of
limitations is a question of law. South Milw. Savings Bank v. Barrett, 2000 WI
48, ¶18, 234 Wis. 2d
733, 611 N.W.2d 448. While we agree with
Riverbank on the merits—the applicable statute of limitations is three years—we
need not reach the merits, because the jury was actually asked to determine if
Tyler was damaged by transactions prior to March 4 and found that he was not.
¶30 Tyler
also complains it was error for the court to dismiss his punitive damages
claim. The question is irrelevant. Because we affirm the jury’s findings, Tyler is not entitled to punitive
damages.
¶31 Finally, Tyler
claims the trial court was biased against him.
The only evidence he cites in support of this argument is the court’s
adverse rulings, which are insufficient to demonstrate bias. See
Liteky
v. United States,
510 U.S.
540, 555 (1994). Further, to the extent
this issue is raised for the first time on appeal—Tyler never sought judicial substitution or
asked for recusal—it is waived. See Wirth
v. Ehly, 93 Wis. 2d
433, 443, 287 N.W.2d 140 (1980).
By the Court.—Judgment and order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.