COURT OF APPEALS DECISION DATED AND RELEASED April 9, 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. 95-1567
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
NANCY KOCH,
Plaintiff-Appellant,
v.
P. A. BERGNER &
COMPANY,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Milwaukee County:
MICHAEL P. SULLIVAN, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER CURIAM. Nancy Koch appeals from a judgment in favor
of P.A. Bergner & Company dismissing her malicious prosecution action. Koch argues that the trial court incorrectly
directed a verdict for P.A. Bergner & Company after ruling that a malicious
prosecution case based on a municipal forfeiture prosecution required proof of
special damages arising from interference with one's person or property. Koch also claims that the trial court
incorrectly concluded that she failed to prove special damages. We reject Koch's arguments and affirm.
Koch was fired from P.A.
Bergner & Company (now known as Carson Pirie Scott & Company) based on
the results of an investigation into allegations that she had been stealing
merchandise. The City of Brookfield
prosecuted Koch under its retail theft municipal ordinance, but the case was
dismissed because the burden of proof had not been met. She then brought this malicious prosecution
action against P.A. Bergner & Company.
The case was tried to a jury. At
the close of Koch's evidence, P.A. Bergner & Company moved for a directed
verdict. The trial court reserved its ruling
until after the jury returned its verdict.
The jury returned a verdict in favor of Koch and awarded $5,000 for
emotional distress, $30,000 for punitive damages, and $600 for out-of-pocket
expenses. The trial court granted P.A.
Bergner & Company's post-verdict motion and dismissed the complaint,
concluding that Koch failed to offer any evidence of special damages. Koch appeals.
Koch argues that the
trial court improperly granted P.A. Bergner & Company's motion for a
directed verdict. She contends that the
trial court incorrectly concluded that the “special damages” requirement for
malicious prosecutions arising from a civil suit is applicable to malicious
prosecutions based on municipal forfeitures.
She maintains that the “special damages” requirement is inapplicable to
municipal forfeitures because they are “quasi-criminal.”
Section 805.14(5)(d), Stats., permits a party who has made a
motion for a directed verdict during trial to renew that motion after
verdict. The Wisconsin Supreme Court
has recently reiterated our standard of review:
A
motion challenging the sufficiency of the evidence may not be granted “unless
the court is satisfied that, considering all credible evidence in the light
most favorable to the party against whom the motion is made, there is no
credible evidence to sustain a finding in favor of such a party.” This standard ... applies both to the
circuit court and to “an appellate court on review of the trial court's
determination” of the motion.
...[A]
circuit court may not grant the motion “unless it finds, as a matter of law,
that no jury could disagree on the proper facts or the inferences to be drawn
therefrom,” and that there is no credible evidence to support a verdict for the
plaintiff.
Because
a circuit court is better positioned to decide the weight and relevancy of the
testimony, an appellate court “must also give substantial deference to the
trial court's better ability to assess the evidence.” An appellate court should not overturn a circuit court's decision
to dismiss for insufficient evidence unless the record reveals that the circuit
court was “clearly wrong.”
....
... [T]he “clearly wrong” standard and the “no
credible evidence” standard must be read together. When a circuit court overturns a verdict supported by “any
credible evidence,” then the circuit court is “clearly wrong” in doing so. When there is any credible evidence
to support a jury's verdict, “even though it be contradicted and the
contradictory evidence be stronger and more convincing, nevertheless the
verdict ... must stand.”
Weiss
v. United Fire & Cas. Co., 197 Wis.2d 365, 388-389,
541 N.W.2d 753, 761-762 (1995) (citations and footnote omitted; emphasis in
original).
As the trial court
correctly noted, the citation mailed to Koch for violation of the City of
Brookfield's retail theft ordinance initiated a civil action. See § 800.02(1), Stats. (“An action in municipal court
for violation of a municipal ordinance ... is a civil action ....”); see
also § 66.12(1), Stats. A plaintiff bringing an action for malicious
prosecution in a civil context must establish “special damages” that result
from the interference or seizure of the person or the person's property in the
underlying action. Johnson v.
Calado, 159 Wis.2d 446, 460-461, 464 N.W.2d 647, 653 (1991). The trial court correctly concluded that the
“special damages” requirement applied to Koch's case.
Koch also argues that
the trial court incorrectly concluded that she did not present sufficient
evidence of special damages at trial to sustain the jury's verdict. Koch claims she paid her attorney $300 or
$400 to defend her in the underlying ordinance proceeding. She further claims:
The
jury may have reasonably inferred that [she] incurred special damages in the
form of mileage expenses to drive to and from the municipal court proceeding,
in addition to her attorney's fees. The
jury may have also inferred that [she] lost interest on the money that she paid
to her attorney and compensated her for that.
General expenses in
defending the underlying lawsuit, loss of time, and diminution of quality of
life are not “special damages” resulting from interference with a person or the
person's property. See id.
at 452-453, 464 N.W.2d at 650; see also 1 The Law of Damages in Wisconsin § 1.6 at 1-4 & 1-5
(Russell M. Ware, ed., 2d ed. 1994-95) (“special damages are those attributable
to the wrong by reason of circumstances not generally present in such
situations”; “general damages are those that necessarily result from the injury
regardless of its special character, the conditions under which the injury
occurred, or the plaintiff's circumstances.”).
Further, review of the trial transcript indicates that Koch offered no
evidence of special damages that resulted from interference with either her
person or her property. Accordingly,
the trial court was not clearly wrong in concluding that Koch had failed to
offer any credible evidence in support of any special damages relative to an
interference with either her person or her property.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.