COURT OF APPEALS DECISION DATED AND RELEASED November 7, 1995 |
NOTICE |
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. 95-0645
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
JAMES LEWIS SMALL,
JR.,
Plaintiff-Appellant,
v.
WTMJ TELEVISION
STATION
and DUANE POHLMAN,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Milwaukee County:
WILLIAM J. HAESE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER
CURIAM. James Lewis Small, Jr., pro se, appeals from a
judgment granting WTMJ Television and Duane Pohlman summary judgment, attorney
fees and costs. Small argues that the
trial court erred in granting summary judgment in the defendants' favor based
only upon the motion and briefs filed because, he contends, due process
requires oral argument on summary judgment motions. Further, Small claims that the trial court erred in awarding to
the defendants attorney fees and costs.
We affirm.
Small is a prisoner at
the Racine Correctional Institution.
Since his incarceration in 1982, Small has filed some 50 lawsuits on
various matters. Because of his
prolific use of the court system, WTMJ reporter Pohlman interviewed Small for a
news story on prisoner litigators.
Small voluntarily consented to be interviewed. During November 1994,
portions of the interview were broadcast on television. Soon after the interview was aired, Small
wrote to WTMJ to complain about the broadcast.
Specifically, Small stated that he did not give WTMJ written permission
or a waiver to broadcast the interview.
In response, WTMJ replied that there was no basis for his complaints
because he voluntarily consented to be interviewed and warned Small of the
penalties for filing a frivolous action.
Thereafter, Small filed a complaint against the defendants, alleging
that he did not give them written consent or a waiver to broadcast the
interview and, therefore, his right to privacy was invaded. The defendants successfully moved for
summary judgment and were awarded attorney fees and costs pursuant to
§ 814.025, Stats., after the
trial court determined that Small's action was frivolous.
Summary judgment is
appropriate when the facts are undisputed.
Hoglund v. Secura Ins., 176 Wis.2d 265, 268, 500 N.W.2d
354, 355 (Ct. App. 1993); § 802.08(2), Stats. When reviewing summary judgment, appellate
courts and trial courts follow the same methodology. Id., 176 Wis.2d at 268, 500 N.W.2d at 355. The court first examines the complaint to
see whether it states a claim and, if so, then the court examines the record to
determine whether any material fact is in dispute. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315,
401 N.W.2d 816, 820 (1987). If not, the
court then determines whether a party is entitled to judgment as a matter of
law. Id. Questions of law are reviewed de novo
by the appellate court. Anderson
v. Milwaukee Ins., 161 Wis.2d 766, 769, 468 N.W.2d 766, 768 (Ct. App.
1991).
Initially, Small argues
that he was denied due process of law by the fact that the trial court ruled on
the motion for summary judgment without oral argument. We disagree. Due process does not include the right to oral argument on a
motion, Skolnick v. Spolar, 317 F.2d 857, 859 (7th Cir. 1963), cert.
denied, 375 U.S. 904 (1963), especially where, as here, the party against
whom the motion is directed had ample opportunity to file any affidavits or
legal argument he might have had within the time between the filing of the
motion and the date for hearing. See
Spark v. Catholic University of America, 510 F.2d 1277, 1280
(D.C. Cir. 1975).
Further, § 802.08(2), Stats., does not mandate oral argument;
rather, § 802.08(2) states in pertinent part:
The
judgment sought shall be rendered if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.
The
purpose of a motion for summary judgment is to save litigants the expense and
time connected with a trial when, as a matter of law based upon the
uncontradicted facts, one of the parties could not prevail. That purpose would be defeated if, at a
hearing on such a motion, oral argument was allowed as a matter of right.
Also, our de novo
review reveals that Small has not demonstrated that there is a genuine issue of
material fact as to whether he consented to the interview or suffered an
invasion of privacy. Small's entire
claim is essentially based upon the necessity of WTMJ obtaining his written consent
before the interview was broadcast.
Small's proposition, that WTMJ must obtain his written consent for an
interview in which he voluntarily participated, has no basis in law.
Small also challenges
the trial court's award of attorney fees and costs against him. The invasion-of-privacy statute provides
that if judgment is entered in favor of the defendant in a privacy action, “the
court shall determine if the action was frivolous.” Section 895.50(6)(a), Stats. In order to find an action for
invasion-of-privacy to be frivolous, the court must find either that (1) the
act was commenced in bad faith or for harassment, or (2) the action was devoid
of arguable basis in law or equity.
Section 895.50(6), Stats. The question of whether an action for
invasion-of-privacy is frivolous is one of law which this court may resolve on
the record. See Lamb v.
Manning, 145 Wis.2d 619, 628, 427 N.W.2d 437, 441 (Ct. App. 1988)
(proceeding under § 814.025, Stats.).
After reviewing the
record in this case, we agree with the trial court that Small's claim was
frivolous. Small was familiar with
legal matters. WTMJ warned him as to
the inaccuracy of his claim. Thus,
Small either knew or should have known that his claim was specious and
unsubstantiated. Small's pro se
status is no bar to sanctions. See
Verex Assurance, Inc. v. AABREC, Inc., 148 Wis.2d 730, 736, 436
N.W.2d 876, 879 (Ct. App. 1989).
Since the trial court
acted properly in dispensing with oral argument, in ruling on the documents
before it, and awarding attorney fees and costs to the defendants, there is no
reversible error and the judgment is affirmed.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.