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COURT OF APPEALS DECISION DATED AND RELEASED JULY
5, 1995 |
NOTICE |
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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. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-3400-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT III
CHESTER
F. WAGNER,
ARTHUR
F. WAGNER, and
WAGNER
& HOPKINS, INC.,
Plaintiffs-Appellants,
v.
DONALD
E. ENGUM, and
BANKERS
MULTIPLE LINE
INSURANCE
COMPANY,
Defendants-Respondents.
APPEAL
from a judgment of the circuit court for Eau Claire County: THOMAS H. BARLAND, Judge. Affirmed.
Before
Cane, P.J., LaRocque and Myse, JJ.
PER
CURIAM. Wagner & Hopkins, Inc.,
Chester and Arthur Wagner appeal a summary judgment dismissing their action
against Donald Engum and his insurer.[1] The trial court dismissed some of the causes
of action on the ground that the claims had been previously litigated and
dismissed the remaining cause of action because no genuine issues of material
fact remained and Engum was entitled to judgment as a matter of law. Because we conclude that Wagner &
Hopkins' claims against Engum are precluded by the previous litigation, Chester
and Arthur Wagner have no personal claims against Engum for negligence,
misrepresentation or unjust enrichment, and their cause of action for
intentional infliction of emotional harm is not supported by any reasonable
view of the evidence, we affirm the judgment.
In
the previous litigation, Engum's employer, Realty World, sued Wagner &
Hopkins, Inc., to recover the commission due on an aborted real estate
transaction. Wagner & Hopkins
counterclaims, alleging negligence by Realty World through its employee,
Engum. The court found that Realty
World earned a commission but that its negligence damaged Wagner & Hopkins
by the amount of the commission. The
court therefore set off the damage awards and dismissed the claim and
counterclaim.[2]
During
the previous litigation, Wagner & Hopkins also moved to commence a
third-party action against Engum, which the court denied. Wagner & Hopkins, along with Chester and
Arthur Wagner individually, then brought this action against Engum and his
insurer, alleging that he negligently performed his duties regarding the real
estate sale, engaged in misrepresentation, was unjustly enriched and
intentionally inflicted emotional harm on the Wagners. The trial court granted Engum's motion for
summary judgment, resulting in this appeal.
The
trial court properly dismissed the causes of action alleging negligence and
misrepresentation because the damages awarded Wagner & Hopkins in the
previous litigation preclude any further claims. Wagner & Hopkins prevailed in its counterclaim alleging
negligence by Realty World through its employee, Engum. Therefore, all damages sustained by Wagner
& Hopkins have been compensated in the previous action. That judgment bars any further award of
damages between the same parties or their privies as to all matters that were
or might have been litigated. See
NSP v. Bugher, 189 Wis.2d 541, 550-51, 525 N.W.2d 723, 727-28
(1995).
Chester
and Arthur Wagner suffered no personal loss by virtue of Engum's negligence or
misrepresentation. Individually, they
have no cause of action for torts committed against the corporation because the
cause of action accrues to the corporation and may not be maintained by its
shareholders in a direct action. See
Rose v. Schantz, 56 Wis.2d 222, 229, 201 N.W.2d 593, 597 (1972).
The
trial court also properly dismissed the cause of action for unjust enrichment
because Engum received no money or benefit.
A claim of unjust enrichment requires proof that Wagner & Hopkins
conferred a benefit on Engum. Puttkamer
v. Minth, 83 Wis.2d 686, 689, 266 N.W.2d 361, 363 (1978). By virtue of the setoff in the previous
litigation, Engum received no commission as a result of the real estate
transaction. The mere opportunity to
receive a commission cannot be viewed as a benefit. Therefore, there is no basis for an action for unjust enrichment.
The
trial court properly dismissed the cause of action by Chester and Arthur Wagner
for intentional infliction of emotional harm because there is no factual basis
for this cause of action. A claim for
intentional infliction of emotional distress requires a showing that the
conduct in question was intended to cause emotional distress. Anderson v. Continental Ins. Co.,
85 Wis.2d 675, 695, 271 N.W.2d 368, 378 (1978). Ordinarily, subjective intent of an individual is a question of
fact that cannot be determined on summary judgment. See Gouger v. Hardtke,
167 Wis.2d 504, 516-17, 482 N.W.2d 84, 90 (1992). Summary judgment is appropriate, however, if all reasonable
inferences derived from the supporting papers defeat the claim. Id. Here, Engum has explicitly denied any intent to cause the Wagners
any harm, including emotional distress.
In response, the Wagners presented evidence establishing that they were
emotionally distressed. This evidence,
construed most favorably to the Wagners, does not allow an inference that
Engum's conduct was intended to cause them emotional distress.
Finally,
there is no basis for maintaining a claim for punitive damages. In the absence of an award of actual
damages, punitive damages are not available.
See Tucker v. Marcus, 142 Wis.2d 425, 438-39, 418
N.W.2d 818, 823 (1988).
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.