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COURT OF APPEALS
DECISION
DATED AND FILED
January 21, 2009
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 I
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Norman R. Torres,
Plaintiff-Appellant,
v.
Roundy’s Supermarkets, Inc., a/k/a Pick ‘n Save and
Brian Marks,
Defendants-Respondents.
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APPEAL
from a judgment of the circuit court for Milwaukee County: jean w.
dimotto,
Judge. Affirmed.
Before Curley, P.J.,
Fine and Kessler, JJ.
¶1 FINE, J. Norman R.
Torres appeals a judgment
dismissing his complaint against his former employer, Roundy’s Supermarkets,
Inc., also known as Pick ‘N Save, and a former co-employee, Brian Marks.
Torres claims
that the circuit court erred when it: (1) dismissed his claims, either as barred by
the Wisconsin Worker’s Compensation Act, see
Wis. Stat.
§ 102.03(2), or because they did not state a claim; and (2) precluded
him from amending his complaint. We
affirm.
I.
¶2 Torres was seventeen years old
when he worked as a utility clerk at a Roundy’s affiliated grocery store. He was fired for allegedly stealing a bag of
chips. The following facts are from Torres’s complaint, which, for the purposes of this appeal,
we accept as true. See Northridge Co. v. W.R. Grace & Co., 162 Wis. 2d 918, 923, 471 N.W.2d 179,
180–181 (1991) (facts in complaint must be taken as true in deciding whether it
states legally cognizable claims).
¶3 Torres’s complaint alleges that on January 16, 2006, he “approached
a cash register” at the store where he worked with the “intent to purchase” a
bag of chips for $2.19 and dipping sauce for $2.49. Torres gave $5.00
to the cashier. The cashier took the
$5.00 and gave Torres a sales receipt. The receipt showed that the cashier charged Torres for the chips and dipping sauce. The cashier simultaneously credited Torres for the chips.
As a result, Torres was only charged $2.49
for the dipping sauce and received $2.51 in change.
¶4 On January
24, 2006, Marks, a security guard at the store, asked Torres to admit that he stole the chips. Marks told Torres
that if he did not, he would be terminated immediately. Marks then “dictate[d]” a “Voluntary
Statement” to Torres, in which Torres
admitted that he took the chips without paying for them:
I was
purchasing a bag of chips and salsa, and then the cashier said “Dude I’ll hook
you up.” I gave him the money[,] then he
gave me the change. I then left and ate
the chips in the break room. I knew that
he had taken the chips off, so he didn’t charge me for them.
Torres’s
complaint alleged that he signed the statement “unwillingly.” Marks “[i]mmediately” told Torres
that he was fired and gave him a termination notice.
¶5 Marks then reported the theft to the Milwaukee Police Department,
which issued a municipal citation to Torres. The citation was later dismissed without
prejudice by the City Attorney’s Office.
Roundy’s also reported Torres’s mother to a
collection agency. The collection agency
sent a letter to Torres’s mother seeking $216.57 in
damages for the theft. According to the
complaint, the collection agency “gave up” its collection efforts after Torres’s mother reported it to the State Bar of Wisconsin
for engaging in the unauthorized practice of law.
¶6 Torres brought this action against
Roundy’s and Marks for defamation, malicious prosecution/abuse of process,
intentional infliction of emotional distress, and conspiracy. Torres also sued
Marks for tortious interference with a contractual relationship.
¶7 Roundy’s and Marks moved to dismiss Torres’s
complaint. See Wis.
Stat. Rule 802.06(2)(a)6 (failure to state a claim upon which relief can
be granted). The circuit court held a
hearing on the motion and orally dismissed all of Torres’s
claims because it concluded that they were either pre-empted by the Worker’s
Compensation Act, see Wis. Stat.
§ 102.03(2), or that Torres failed to state a cognizable
claim.
II.
¶8 A motion to dismiss for failure to state a claim tests the
legal sufficiency of the complaint. Wausau
Tile, Inc. v. County Concrete Corp., 226 Wis. 2d 235, 245, 593 N.W.2d 445, 450
(1999). As noted, the facts in the
complaint must be taken as true and the complaint dismissed only if it appears
certain that no relief can be granted under any set of facts the plaintiff
might prove in support of the allegations.
Northridge Co., 162 Wis.
2d at 923, 471 N.W.2d at 180–181.
Whether a complaint states a claim for relief is a question of law that
we review de novo. Wausau Tile, Inc., 226 Wis. 2d at 245, 593
N.W.2d at 450. With these standards in
mind, we turn to Torres’s claims.
A. Defamation/intentional infliction of
emotional distress/conspiracy.
¶9 The circuit court dismissed Torres’s
claims for defamation, intentional infliction of emotional distress, and
conspiracy because it concluded that they were pre-empted by the Act. See
Jenson
v. Employers Mut. Cas. Co., 161 Wis.
2d 253, 266–269, 468 N.W.2d 1, 6–8 (1991) (intentional infliction of emotional
distress); Wolf v. F & M Banks, 193 Wis. 2d
439, 455–456, 534 N.W.2d 877, 883 (Ct. App.
1995) (defamation); Messner v. Briggs & Stratton Corp., 120 Wis. 2d 127, 137–139, 353 N.W.2d 363,
368 (Ct. App.
1984) (conspiracy).
¶10 If an injury is covered by the Act, “the right to the recovery
of compensation under [the Act] shall be the exclusive
remedy against the employer, any other employee of the same employer and the
worker’s compensation insurance carrier.” Wis. Stat. § 102.03(2). Several conditions must be met for this
“exclusivity” provision to apply including, as relevant here, that “the accident or disease causing injury arises out of the
employee’s employment.” Sec. 102.03(1)(e).
¶11 Torres does not dispute the general
rule of exclusivity. He contends,
however, that his claims are not pre-empted by the Act because what he calls the
“key act” underlying his claims—that Roundy’s and Marks told the police that Torres stole a bag of chips—happened after he was fired. Torres thus argues
that his claims are not pre-empted because they are distinct in time and place
from his employment. We disagree.
¶12 The precipitating factor—that Torres allegedly stole a bag of
chips—happened while Torres was still employed with Roundy’s. The events that followed, including that
Roundy’s and Marks told the police that Torres stole
a bag of chips, arose out of Torres’s employment
with Roundy’s. Thus, Torres’s
claims for defamation, intentional infliction of emotional distress, and
conspiracy are barred by the Act. See Weiss
v. City of Milwaukee, 208 Wis. 2d
95, 107, 559 N.W.2d 588, 593 (1997) (“‘arising out of’
language of § 102.03(1)(e) refers to the causal origin of an employee’s
injury”).
B. Malicious prosecution/abuse of process.
¶13 The elements of malicious prosecution are that: (1) there was a prior institution or
continuation by the defendant of a regular judicial proceeding against the
plaintiff; (2) the prior proceeding was terminated on the merits in favor of
the plaintiff in the action for malicious prosecution; (3) the defendant
instituted the prosecution with malice; (4) there was no probable cause to
start the prosecution; and (5) the plaintiff was damaged as a result. Tower Special Facilities, Inc. v. Investment
Club, Inc., 104 Wis.
2d 221, 227, 311 N.W.2d 225, 228 (Ct. App.
1981).
¶14 Torres’s complaint characterized Roundy’s
and Marks’s report of the theft to the police as acts done with malice and
without probable cause. The circuit
court dismissed this claim because these legal conclusions were not supported
by allegations of fact. As explained
below, we agree.
¶15 The facts alleged in the complaint do not support two of the
elements for malicious prosecution. First,
the theft charge was not terminated in Torres’s
favor on the merits. See id., 104 Wis. 2d at 228, 311 N.W.2d at 229 (“‘It is generally held that where the original proceeding has
been terminated without regard to its merits … there is no such termination as
may be availed of for the purpose of an action for malicious prosecution.’”)
(quoted source omitted). As we
have seen, the dismissal was without prejudice, and, indeed, Torres’s
brief asserts that the dismissal was because Roundy’s decided not to prosecute.
Second, the complaint indicates that
Roundy’s had sufficient probable cause to call the police, and Torres
does not argue to the contrary. Thus, Torres’s assertion that the circuit court erred in
dismissing his claim for malicious prosecution fails. We turn to Torres’s
claim for abuse of process.
¶16 The elements of abuse of process are: (1) use of the process for “a purpose other
than that which the process was designed to accomplish”; and (2) “a
subsequent misuse of the process, even though the process was properly
instituted.” Thompson v. Beecham, 72 Wis.
2d 356, 362, 241 N.W.2d 163, 166 (1976).
In order to maintain an action
for abuse of process, the process must be used for something more than a proper
use with a bad motive. The plaintiff
must allege and prove that something was done under the process which was not
warranted by its terms. The existence of
an improper purpose alone is not enough, for this improper purpose must also
culminate in an actual misuse of the process to obtain some ulterior advantage.http://web2.westlaw.com/result/documenttext.aspx?method=TNC&fn=_top&scxt=WL&mt=Wisconsin&db=595&ss=CNT&n=1&nstartlistitem=1&cxt=DC&vr=2.0&sv=Split&cnt=DOC&ifm=NotSet&ordoc=1983115001&rs=WLW8.11&service=Find&rlt=CLID_FQRLT376555422173012&serialnum=1976108704&rp=%2fFind%2fdefault.wl&findtype=Y&rlti=1
- B00881976108704
Id., 72 Wis.
2d at 363, 241 N.W.2d at 166.
¶17 Torres’s complaint alleges that
Roundy’s abused process when it hired the collection agency because “the
statements made to collect the unlawful debt were untrue, and the means used to
accomplish the unlawful collection were unwarranted.” The circuit court dismissed this claim
because Torres did not satisfy the requisite
elements. Again, we agree. Torres does not allege
that Roundy’s used the collection agency to obtain some unfair advantage or
that the agency sent the letter to Torres’s mother for
any purpose other than to collect what Roundy’s believed it was owed as a
result of what Torres did. Accordingly, Torres’s
assertion that the circuit court erred in dismissing his claim for abuse of
process also fails.
C. Tortious interference with contract.
¶18 The elements of tortuous interference with a contract are: (1) a contractual relationship between
the plaintiff and another; (2) the defendant’s interference with the
relationship; (3) the interference was intentional; (4) a causal connection
between the interference and the plaintiff’s damages; and (5) the
defendant was not justified or privileged to “interfere” with the relationship. Dorr v.
Sacred Heart Hosp., 228 Wis.
2d 425, 456, 597 N.W.2d 462, 478 (Ct. App.
1999).
¶19 Torres apparently claimed that Marks
interfered with his employment contract when Marks required Torres
to admit the theft, and that he was fired as a result. The circuit court dismissed this claim
because Torres’s allegations did not satisfy the
elements of tortious interference with a contract. We agree.
¶20 This claim falters on the last prong—that Marks was not
justified or privileged to interfere.
“[T]he transmission of truthful information is privileged, does not
constitute improper interference with a contract, and cannot subject one to
liability for tortious interference with a contract.” Liebe v. City Fin. Co., 98 Wis. 2d 10, 13, 295
N.W.2d 16, 18 (Ct. App.
1980). Torres
does not dispute anywhere in his complaint that he got the chips without paying
for them. Indeed, Torres’s
lawyer admitted at the hearing on the motions to dismiss that Torres
“did not pay for [the chips.]” Under
these facts, any statements that Marks got Torres to
make about taking the chips without paying for them were true. Marks’s conduct was therefore
privileged. Accordingly, Torres’s
assertion that the circuit court erred in dismissing his claim for tortious
interference with a contract is also without merit.
D. Amending complaint.
¶21 Torres contends that the circuit
court erred when it did not allow him to amend his complaint. See Wis. Stat. Rule 802.09(1).
Under § 802.09(1), “[a] party may amend the party’s pleading once as a matter of
course at any time within 6 months after the summons and complaint are filed.” Torres
argues that he had the right to amend his complaint within the six-month
deadline without leave of the court. This
claim fails for two reasons.
¶22 First, the Record shows that Torres did not at any time before
or after the final oral ruling of the circuit court move to amend his
complaint. See Tietsworth v.
Harley-Davidson, Inc., 2007 WI 97, ¶26, 303 Wis. 2d 94, 110, 735 N.W.2d
418, 425–426 (“[o]nce judgment has been entered, the presumption in favor of
amendment disappears in order to protect the countervailing interests of the
need for finality”). The only reference
to an amendment occurred during the following exchange between the circuit court
and Torres’s lawyer at the hearing on the motions to
dismiss, during which the circuit court orally indicated that it would dismiss Torres’s complaint:
[Torres’s Lawyer]: [W]hat
we have left are acts that happened after Torres was
no longer employed after he was fired….
[Circuit
Court]: Based on what you have asserted
[in] your complaint you’ve actually put your plaintiff right into employment
itself, the employment situation or the personal comfort doctrine.
[Torres’s Lawyer]: Yeah,
I realize that, and I think that’s because however the -- Certainly the
defamation is being accused of theft, and I think the remedy -- And I see that
right now. Think the remedy would be to
amend this because the defamation did occur --
[Circuit
Court]: Why didn’t you amend it before
now? I mean, you know, to say the remedy
is amend it and then -- Well, to say the remedy is to amend it, you know, at a
hearing where this could be dismissed, why didn’t you?
This
is a little late. You are still within
the 6-month period of, you know, automatic or without court permission. You said that in your response or reply
papers or I think your response paper submitted to the court and you still
haven’t done it. This is serious
business here.
To the extent
that the colloquy can be considered an indication that Torres
wanted to amend his complaint, the circuit court properly exercised its
discretion when it rejected the request.
See Grothe v. Valley Coatings, Inc., 2000 WI App 240, ¶12, 239 Wis. 2d 406, 415, 620
N.W.2d 463, 467 (decision whether to amend complaint within circuit court’s
discretion). Torres
did not explain to the circuit court and does not explain on appeal why,
despite having notice from the motion to dismiss of the significant and
dispositive defects in the complaint, he waited until after the circuit court
said that it would dismiss the complaint. See id., 2000 WI App 240, ¶13, 239 Wis. 2d at 415–416, 620
N.W.2d at 467–468 (circuit court properly exercised discretion in denying
motion to amend complaint where plaintiff failed to explain why amendment was
justified late in proceedings). Moreover,
other than general assertions, Torres did not tell
the circuit court and does not tell us what amendments he would have made had
the circuit court permitted him to amend. The circuit court did not erroneously exercise
its discretion in not permitting Torres to amend his
complaint. See State v. Pettit, 171
Wis. 2d
627, 646, 492 N.W.2d 633, 642 (Ct. App.
1992) (appellate court can “decline to review issues inadequately” supported).
By
the Court.—Judgment affirmed.
Publication in the
official reports is not recommended.