COURT OF APPEALS DECISION DATED AND RELEASED OCTOBER 4, 1995 |
NOTICE |
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review an adverse decision by the Court of Appeals. See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will
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Nos. 94-1615
94-1616
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
CITY OF TWO RIVERS,
Plaintiff‑Respondent,
v.
THOMAS J. LAVEY, d/b/a
LAKELAND OUTDOOR ADVERTISING,
Defendant‑Appellant.
APPEALS from a judgment
of the circuit court for Manitowoc County:
ALLAN J. DEEHR, Judge. Reversed.
Before Anderson, P.J., Nettesheim and Snyder,
JJ.
ANDERSON, P.J. Thomas
J. Lavey appeals from a judgment of the trial court wherein the court denied Lavey's
motions after verdict. Because we
conclude that there was insufficient evidence to support the jury's verdict, we
reverse.
Lavey was cited for
violating the City of Two Rivers' sign ordinance. The ordinance regulates all billboards within 100 feet of a
federal aid primary highway and 300 feet of residential property. A sign within these boundaries can only be
“on-premise” advertising, defined by the ordinance as “[a]ny sign identifying
or advertising a business, person, activity, goods, products or services
located on a premises where the sign is installed and maintained.” Two
Rivers, Wis., Municipal Ordinance ch. 3, § 10-3-2(a)(20)
(1990). The ordinance’s purpose is
stated in the preamble as to promote traffic safety and the aesthetics of the community. Id., § 10-3-1(a).
Lavey's company,
Lakeland Outdoor Advertising, maintains a billboard in an area the ordinance
restricts to “on-premise” advertising.
Lakeland Outdoor Advertising posted a billboard with the words “Outdoor.
It's Not a Medium, It's a Large” superimposed over a blown-up color photo of an
orange, with the Sunkist logo visible.
Lavey testified that the sign was part of an Outdoor Advertising
Association of America campaign to promote the medium of outdoor
advertising. When he ordered the
billboard for his company, he saw a draft poster with black and white copy of
the words, but without the picture of the orange or the Sunkist logo. The sign was posted without Lavey's
knowledge of the background picture of the orange.
The advertising copy was
not preapproved by the City. The zoning
administrator testified that the words and pictures on outdoor signs change
frequently and a permit or approval is not required to change the advertising
copy of outdoor signs. The zoning
administrator cited Lavey for illegally advertising an off-premise commercial
item—Sunkist oranges.
While the ordinance
makes a distinction between “on-premise” and “off-premise” signs, the zoning
administrator testified that “on-premise” signs could contain “generic,
noncommercial messages” even if the advertising copy referred to “off‑premise”
activities. The ordinance does not
define noncommercial messages.
At trial, the jury found
that the billboard was “off-premise” commercial advertising of oranges and not
“on‑premise” noncommercial advertising of outdoor advertising as Lavey
contended. The court imposed a $750
forfeiture for each count, plus costs.
Lavey appeals.[1]
Lavey raised the
sufficiency of the evidence argument before the trial court in a motion after
verdict. On appeal, he does not frame
the issues to include the issue of sufficiency of the evidence, although the
City addresses it in its appellate brief.
We, however, are not bound by the issues as framed by the parties. See Saenz v. Murphy, 162
Wis.2d 54, 57 n.2, 469 N.W.2d 611, 612 (1991).
Moreover, the issue of sufficiency of the evidence was discussed
extensively below.
When reviewing whether
there is sufficient evidence to sustain a jury verdict, we must review the
evidence in a light most favorable to the verdict. Nieuwendorp v. American Family Ins. Co., 191 Wis.2d
463, 473, 529 N.W.2d 594, 598 (1995).
We will sustain a jury's award if there is any credible evidence that
supports the verdict, sufficient to remove the question from the realm of
conjecture. See id. When more than one inference may be drawn
from the evidence presented at trial, we are bound to accept the inference
drawn by the jury. Id. This standard is even more appropriate when
the jury's verdict has the approval of the circuit court. Id.
The City contends that
“[t]he jury's determination that a billboard displaying a huge Sunkist orange
constituted an advertisement for Sunkist oranges was an entirely reasonable
inference.” The City further states
that it is undisputed that no oranges were sold on the premises on which the
billboard was situated and the jury's verdict that the sign constituted an
off-premise sign was reasonable and based upon credible evidence.
We disagree. This court has held, “[t]o advertise a
product or service which is for sale to the public, it is necessary to draw the
potential consumer’s attention to it by presenting its good qualities and
benefits, creating a desire to possess it.”
CUNA Mutual Ins. Soc'y v. DOR, 120 Wis.2d 445, 450, 355
N.W.2d 541, 544 (Ct. App. 1984). To
apply this definition the billboard must be viewed and read in context. It was not just a blown-up color photograph
of an orange with the Sunkist logo.
Conspicuously superimposed over the photograph of the orange was the
advertising copy: “Outdoor. It’s Not a Medium, It’s a Large.” We find no credible evidence in the record
to support the verdict that Lavey’s billboard contained off-premise advertising
of Sunkist oranges. There is no
credible evidence that the billboard presented the good qualities and benefits
of Sunkist oranges; a jury could not reasonably conclude that Lavey’s billboard
created a desire in the consuming public to purchase Sunkist oranges.
Marvin Now, a building
and zoning administrator responsible for the enforcement of sign ordinances,
was the City's only witness at trial.
He testified that he was confused as to the sign's intent and determined
that the sign must be advertising oranges.
Mr. Now ascertained that there were no oranges available for sale to the
public on the premises.
Lavey, however, testified that he did not
intend to advertise on behalf of Sunkist oranges:
Q And in your own mind what was the poster advertising?
A What you had indicated on one of your exhibits,
Outdoor, It's Not a Medium, It's a Large.
Q Did it have anything to do with Sunkist oranges
in your opinion?
A No, it did not.
Q Were there other backgrounds that you later became
aware of on this advertising poster?
A We became aware later that there were backgrounds on these posters, actually I did
when I traveled to a different market and
I saw a Eskima
[sic] Pie for one of those backgrounds.
I did not even see the one that we
had.
Q When you had your bill poster put this poster panel up,
did you think that you were advertising Sunkist
oranges?
A No, I new [sic] they weren't advertising
Sunkist oranges.
Additionally, Lavey testified
that he was not sure whether the national group, Outdoor Advertising
Association of America, received compensation from Sunkist:
Q Do you know when the billboard was put up that says Outdoor, It's Not a Medium, It's a Large, with the Sunkist orange in the background, did your national group get remuneration for that orange?
A No.
Q Are you sure of that?
A I have no idea -- my national group gets remuneration? In other words were they paid to use that orange?
Q Yes.
A I have no idea, honestly have no idea.
The City presented insufficient evidence for
the jury to find that Lavey was in fact advertising oranges. The court instructed the jury as follows:
In order to find that Mr. Lavey violated
the ordinance, the city of Two Rivers must prove ¼ the sign contained off-premises advertising of Sunkist
oranges.
The term off-premises sign is defined by
the ordinance. An off-premises sign is
a sign which advertises goods, products or facilities or services not
necessarily on the premises where the sign is located or directs persons to a
different location from where the sign is located.
The
court further stated that the jury must be satisfied or convinced to a
reasonable certainty by evidence that is clear, satisfactory and convincing
that Lavey is guilty. We conclude that
the City did not present clear, satisfactory and convincing evidence to prove
that the sign contained off-premise advertising of Sunkist oranges.
Because we conclude that
there is insufficient evidence to support the jury's verdict, we do not reach
Lavey's appellate issues.
By the Court.—Judgment
reversed.
Not recommended for publication in the
official reports.
Nos. 94-1615(D)
94-1616(D)
NETTESHEIM, J. (dissenting). I contend that the
evidence supports the jury's determination that Lavey's sign was not
permissible “on-premise” advertising.
Therefore, I dissent.
The ordinance requires
that on-premise advertising may only promote the business or activity conducted
on the site of the advertising. The
sign in question prominently displayed a large orange with the Sunkist logo in
conjunction with the words “Outdoor.
It's Not a Medium, It's a Large.”
No activity regarding Sunkist oranges is conducted on the site of this
advertising. Lavey's business activity
is outdoor advertising. He is not
engaged in any business activity involving the production or sale of Sunkist
oranges.
One clear and
unmistakable message conveyed by Lavey's sign is that it advertises for Sunkist
oranges. This is precisely what the
ordinance prohibits. The majority seems
to conclude that any further, and arguably more subtle, message that the sign
conveys in support of outdoor advertising constitutes a defense to the
ordinance and thus the evidence is insufficient. The majority is wrong.
The ordinance bars off-site advertising. Thus, a sign which promotes both on-site and off-site activity is
still a violation of the ordinance. At
a minimum, a jury question existed.
We are to uphold a jury
determination if there is any credible evidence which supports the
verdict. Nieuwendorp v. American
Family Ins. Co., 191 Wis.2d 463, 473, 529 N.W.2d 594, 598 (1995). The evidence clearly shows that Lavey's sign
promoted the off-site activities of Sunkist oranges.
I respectfully
dissent. I would uphold the jury's
verdict and move to the further appellate issues raised by Lavey.
[1] We certified this case to the Wisconsin
Supreme Court, which declined to accept jurisdiction of the appeal. The court, however, stated:
Although
it is not the normal practice of this court to furnish reasons for
certification refusals, we deem it advisable in the interest of clarity and
judicial economy to do so in this case.
Assuming certified issues are theoretically suitable for disposition by
this court, certification is nonetheless not appropriate if those issues are
not presented by the facts of the case at hand. In this instance, the certified issues might be moot if the jury
verdict, essentially finding that the subject sign was promoting oranges rather
than outdoor advertising, is not supported by the credible evidence. That threshold issue is presented by the
parties' court of appeals briefs and is properly an issue for disposition by
that court.