COURT OF
APPEALS DECISION DATED AND
RELEASED FEBRUARY
27, 1996 |
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. 95-1119
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT III
RICK
MONTGOMERY and
BETH
MONTGOMERY, his wife,
Plaintiffs-Respondents,
v.
CARL
J. MAHLER,
Defendant-Respondent,
EDWARD
BERNDT and
ELIZABETH
ANN BERNDT, his wife,
Intervenor-Appellant.
APPEAL
from a judgment of the circuit court for Forest County: JAMES P. JANSEN, Judge. Affirmed.
Before
Cane, P.J., LaRocque and Myse, JJ.
PER
CURIAM. Edward and Elizabeth Berndt, as trial court
intervenors on the side of defendant Carl Mahler, appeal a judgment that
awarded Rick and Beth Montgomery compensable and punitive damages against
Mahler. Mahler himself appeared at
trial without counsel and has not filed an appeal. The trial court found that the Montgomerys suffered damage when
Mahler maliciously cut down one of their birch trees and spread one-inch nails
over 600 feet, beginning on the Montgomerys' driveway and continuing down a
disputed roadway near their home. These
nails caused eight flat tires on the Montgomerys' motor vehicles. The Montgomerys oppose the Berndts' appeal
on the merits and also on the ground that the trial court improperly permitted
the Berndts to intervene in the role of defendants. Because of the Berndts' improper intervention, the Montgomerys
ask us to disregard the Berndts' appellate arguments and affirm the judgment by
default.
The
Berndts raise several arguments: (1) the Montgomerys' failure to file a
cross-appeal bars them from challenging the trial court's intervention ruling;
(2) the evidence did not show that Mahler was the perpetrator, that the
tree was ornamental, or that the Montgomerys owned the tree; (3) the
Montgomerys did not prove the amount of compensable damages; (4) the trial
court erroneously admitted exhibits in violation of the rules of evidence
governing authentication, identification, foundation and hearsay; (5) the
Montgomerys offered insufficient proof on the punitive damage issues of
wantonness, maliciousness, outrageousness and recklessness. We agree with the Montgomerys that the trial
court improperly permitted the Berndts to intervene in this lawsuit. We therefore affirm the judgment on this
basis and address their appellate arguments only as an alternative analysis to
affirm the judgment.
The
Berndts first argue that the Montgomerys, who did not file a cross-appeal, have
no right to challenge the Berndts' right to intervene in the lawsuit on behalf
of Mahler as defendants. The Berndts
claim that the Montgomerys' challenge to intervention effectively attempts to
modify the judgment by seeking reversal of the trial court's interlocutory
ruling permitting intervention. The
Berndts are correct that someone who seeks to modify a judgment must file a
cross-appeal. Auric v.
Continental Cas. Co., 111 Wis.2d 507, 516, 331 N.W.2d 325, 330
(1983). We conclude, however, that this
rule required no cross-appeal in this case.
The Montgomerys are challenging the Berndts' trial court intervention as
a means to set aside the Berndts' right of appearance in the trial court. The Montgomerys thereby seek to block the
Berndts' associated rights on appeal.
In effect, the Montgomerys merely seek to protect their money judgment
and have it stand on grounds other than its substantive merits. They do not seek an increase in the damage
award or other affirmative relief.
Under these circumstances, the Montgomerys had no obligation to file a
cross-appeal, and we now address the intervention issue.
The
Montgomerys argue that the trial court wrongly evaluated the Berndts' interest
as sufficient to warrant their intervention as defendants. As a result, the Montgomerys argue, we
should disregard the Berndts' appellate arguments and affirm the judgment by
default. The Montgomerys state that the
Berndts did not satisfy the requirements for either mandatory or permissive
intervention under the code of civil procedure. See § 803.09, Stats. We agree with their arguments. The Berndts sought to defend Mahler against
the Montgomerys' action for the purpose of preserving his assets. By this strategy, the Berndts expected to
enforce a future recovery against Mahler in another lawsuit. The Berndts had only an unliquidated claim
against Mahler. Such claims provide no
basis for intervention for the purpose of defeating other claims and thereby
protecting Mahler's ability to satisfy a judgment the Berndts might later
obtain against him. See Continental
Vinyl Products Corp. v. Mead Corp., 103 Cal. Rptr. 806, 811 (Cal. App.
1972) (unsecured creditor's interest does not justify defense aligned
intervention); see also SEC v. Flight Transport Corp., 699
F.2d 943, 947 (8th Cir. 1983); Liberty Mut. Ins. Co. v. Pacific Indemnity
Co., 76 F.R.D. 656, 658-60 (W.D. Pa. 1977).
Although
Liberty Mutual is not directly analogous, involving an unsecured
creditor who sought to intervene as a plaintiff, the Liberty Mutual
court explained its rationale for rejecting mandatory and permissive
intervention under the federal rules corresponding to Wisconsin's intervention
statute. Under § 803.09(1), Stats.'s mandatory intervention rules,
trial courts must allow intervention if the movant claims an interest relating
to the property or transaction which is the subject of the action, so long as
the movant meets other criteria. Under
§ 803.09(2), Stats.'s
permissive intervention rules, trial courts may permit intervention for movants
without the above mentioned interest if the movant's claim or defense and the
main action have a question of law or fact in common. The Liberty Mutual court explained that unsecured
creditors do not have the requisite subsection (1) interest and that the
unsecured creditor did not have a question of law or fact in common. The same rationale applied here. As unsecured creditors with unliquidated
claims, the Berndts did not have the requisite subsection (1) interest for
mandatory intervention. Likewise, they
identified no issue of law or fact in common between their lawsuit against
Mahler and the Montgomerys' suit.
Rather,
in order to intervene for the purpose of defending a defendant in a lawsuit,
the proposed intervenor needs a more substantial interest than an unliquidated,
unsecured claim against the defendant.
In fact, the only precedents permitting defense aligned intervention
involve stockholders of corporations whose officers improperly refuse to defend
the corporation. See Clayton
v. Mimms & Co., 386 N.E.2d 452, 454 (Ill. App. 1979) (corporate
stockholders); Kobernick v. Shaw, 139 Cal. Rptr. 188, 190 (Cal.
App. 1977) (corporate stockholders); Rugee v. Hadley Products, Inc.,
241 P.2d 798, 800 (Ariz. 1952) (corporate stockholders); see also Price
v. Gurney, 324 U.S. 100, 105 (1945) (corporate stockholders). The Berndts did not have any interest comparable
to the direct proprietary interest held by stockholders. We are satisfied that an unsecured,
unliquidated creditor's interest is insufficient to warrant either mandatory or
permissive intervention for the purpose of opposing another unsecured creditor's
lawsuit. In sum, the trial court
erroneously permitted the Berndts' defense aligned intervention, and we
therefore affirm the money judgment on this ground. However, we will address the Berndts' substantive arguments
arguendo to show that the evidence itself also justified the judgment.
The
Berndts argue that the Montgomerys did not prove Mahler's involvement in the
incidents. The Berndts point out that
the Montgomerys have no direct proof of his complicity. We affirm trial court findings unless they
are clearly erroneous. Noll v.
Dimiceli's, Inc., 115 Wis.2d 641, 643, 340 N.W.2d 575, 577 (Ct. App.
1983). Fact finders may base their
findings on circumstantial evidence and the reasonable inferences such evidence
permits. See Priske v.
Gen. Mot. Corp., 89 Wis.2d 642, 654, 279 N.W.2d 227, 232 (1979). Here, circumstantial evidence showed
Mahler's guilt. He and the Montgomerys
had boundary disputes. He also had a
history of confrontations with the Montgomerys and others concerning rights in the
roadway on which the nails were strewn.
He had made threats against others in the past, including one in a
letter to the district attorney. He
also acted belligerently toward a town road crew when it arrived at the scene,
attempting to destroy a culvert, and he shot Edward Berndt, the local police
chief, when the chief appeared a short time later. Further, Mahler had arrived from Indiana a short time before the
vandalism occurred. Last, the Berndts
identified no one else who could have harbored a motive to cut the tree and
spread nails. From this circumstantial
evidence, a rational fact finder could reasonably infer that Mahler was the one
who cut the tree and spread the nails on the driveway and the roadway. As a result, the trial court's finding was
not clearly erroneous.
The
Berndts next argue that the tree Mahler cut was not an ornamental tree and
therefore did not support a damage award.
As the Berndts point out, although owners of ornamental trees may
recover the tree's individual value, owners of nonornamental trees may recover
only damages equal to the amount that their real estate declines in value as a
result of the destruction. Otto
v. Cornell, 119 Wis.2d 4, 9-11, 349 N.W.2d 703, 706-07 (Ct. App.
1984). The Montgomerys essentially admitted
that their real estate suffered no decline in value as a result of the
damage. Here, however, the trial court
reasonably found that the ten-inch diameter birch tree was ornamental. Rick Montgomery testified that they used the
tree to shield their home from view from the roadway. This was an ornamental use and qualified the tree as ornamental,
in spite of the fact that the tree was wild.
Rick Montgomery's testimony was consistent with the scene, which the
trial court inspected, and the trial court could rationally accept his
testimony. In sum, the trial court's
finding on this issue was not clearly erroneous.
The
Berndts next argue that the Montgomerys did not own the tree. The trial court found that the tree grew on
the boundary of the Montgomerys' real estate and that they therefore owned at
least part of the tree. The record
supported the trial court's finding.
The trial court viewed the scene before making its findings. The evidence showed that the tree grew on or
next to an ancient fence line. The
trial court found that the fence line represented the real estate's boundary,
at least for purposes of resolving the Montgomerys' lawsuit, even if it would
not definitively set the boundary in a quiet title action. We have viewed the photographs and conclude
that the trial court's finding was not clearly erroneous. They show the damaged tree and the remnants
of the ancient fence. From this
evidence, the trial court could reasonably rule that the tree grew on the
boundary of the Montgomerys' property.
Under the common law, they therefore had an ownership interest in the
tree. See, e.g., Patterson
v. Oye, 333 N.W.2d 389, 391 (Neb. 1983); Holmberg v. Bergin,
172 N.W.2d 739, 742 (Minn. 1969).
The
Berndts next argue that the trial court erroneously based its $75 damage award
for the ten-inch diameter birch tree and its $700 damage award for the eight
damaged tires entirely on conjecture and speculation. He points out that the Montgomerys offered no evidence of the
tree's value and that Rick Montgomery's testimony of the tires' replacement
cost was the only evidence on that issue.
Litigants need only prove damages with reasonable certainty. Production Credit Assoc. v. Nowatzski,
90 Wis.2d 344, 356, 280 N.W.2d 118, 124 (1970). Here, we are satisfied that the trial court had sufficient
evidence for its damage award. The trial court could reasonably find that a
ten-inch diameter birch tree was worth at least $75. This amount was nominal under the circumstances, and any error
was de minimus. See Ziegler
v. Wonn, 18 Wis.2d 382, 389, 118 N.W.2d 706, 710 (1963). In addition, Rick Montgomery provided
sufficient testimony on the tires' replacement cost. He testified that he bought replacement tires. He estimated that they cost him from $700 to
$750. The trial court could reasonably
find his testimony adequate without receipts or other evidence. Like the trial court, which relied partially
on common knowledge on these issues, we cannot say that $700 for eight tires
was excessive as a matter of law.
The
Berndts next argue that the trial court erroneously admitted several exhibits
without following rules of evidence on identification, authentication,
foundation and hearsay. These exhibits
consisted of various documents, including real estate conveyances, maps, a
letter written by Mahler, and state publications. We reject the Berndts' arguments. First, the Berndts have not established that the trial court put
significant weight on any of these documents in reaching its decision. The Berndts have cited nothing in these
documents that they believe had a material effect on the trial court's
decision. In fact, they have not
indicated what these documents contain in any respect. Under these circumstances, they have shown
no prejudice from the trial court's decision.
Canadian Pac. Ltd. v. Omark-Prentice Hydraulics, 86 Wis.2d
369, 372, 272 N.W.2d 407, 408-09 (Ct. App. 1978). We have no obligation to search these documents for possible
prejudicial material.
Second,
the trial court referred to a time shortage at the beginning of the trial. It conducted proceedings in a manner to
conserve time, attempting to resolve the dispute as expeditiously as
possible. In light of the constraints,
the trial court effectively dispensed with some of the procedures normally
required for the introduction of evidence.
The trial court apparently believed that the Montgomerys would have
little trouble meeting the applicable identification, authentication and
foundation requirements. If the Berndts
had specific objections demonstrating the prejudice of specific documents, they
could have mitigated the time constraints by submitting posttrial arguments to
the trial court. They did not, despite
the fact that the trial court sought and received posttrial letter briefs on
other issues. Under these
circumstances, where the Montgomerys would have met all evidentiary
requirements in all likelihood, we are satisfied that the trial court conducted
this aspect of the proceedings in a fair manner. We see nothing in the trial court's admission of the exhibits
that requires a new trial.
Finally,
the Berndts argue that the trial court improperly awarded punitive damages
without any proof of Mahler's recklessness and maliciousness. These items, along with outrageousness and
wantonness, are essential elements of a claim for punitive damages. Wangen v. Ford Motor Co., 97
Wis.2d 260, 267-69, 294 N.W.2d 437, 442-43 (1980). Litigants must establish these matters by clear and convincing
evidence. Id. at 299-301,
294 N.W.2d at 457-58. Here, the trial
court reasonably found the requisite recklessness, maliciousness,
outrageousness and wantonness. Ordinary
people do not cut down someone else's tree and spread nails on driveways and
roadways without recklessness, maliciousness, outrageousness and
wantonness. The trial court could
rationally infer such matters from the facts of the offense itself. No direct proof was necessary. Although the Berndts could conceivably argue
that Mahler cut the tree under the mistaken belief it was his, they can make no
similar claims of mistake about the nails.
Last, Mahler's conduct with the road crew and police chief furnished
circumstantial evidence on these issues.
In sum, the evidence permitted an award of punitive damages.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.