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COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 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. 95-1809-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
DOROTHY A. LOWE,
Plaintiff-Appellant,
v.
CITY OF APPLETON, a
Wisconsin
Municipality, RICHARD
T. DE BROUX,
individually and in
his capacity
as Mayor of the City
of Appleton,
and DAVID F. BILL,
individually
and in his capacity as
Director
of Administrative
Services/Director
of Personnel of the
City of Appleton,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Outagamie County:
DEE R. DYER, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Dorothy Lowe appeals a judgment entered on
a jury verdict that dismissed her 42 U.S.C. § 1983 complaint against the City
of Appleton, Richard De Broux and David Bill.[1] Lowe asks this court to reverse the judgment
and remand the case for a new trial on grounds that the jury's verdict is
inconsistent and perverse. Lowe also
impliedly argues that a defective special verdict form gave rise to the
inconsistent answers. Because we
conclude that the verdict is not inconsistent or perverse and that Lowe waived
any errors in the special verdict form by failing to object on the record
before the special verdict was submitted to the jury, we affirm.
Lowe held the position
of secretary to the mayor of Appleton from June 1976 to April 1992. In October 1981, about five years after Lowe
began her employment, the Appleton common council adopted certain personnel
policies that applied to city employees, like Lowe, who were not covered by
collective agreements. The policies
were not the result of any negotiations between employees and the City. In 1987 the personnel policies were
revised. Included in the revised
version was the following provision:
1.06
STATUS. The contents of this manual are
presented as a matter of information only.
While the City of Appleton believes wholeheartedly in the plans,
policies and procedures described herein, they are not contracts of
employment. The City reserves the right
to modify, revoke, suspend, terminate, or change any or all of such plans,
policies, or procedures in whole or in part, at any time, with or without
notice. The language used in this
handbook is not intended to create, nor is it to be construed to constitute, a
contract between the City and any one or all of its employees. Employees of the City of Appleton are
employees at will. No person other than
the Director of Personnel has authority to make any agreement for employment
for any specified period of time or to make any agreement contrary to the
foregoing.
In April 1992, Richard
De Broux was elected mayor, and he terminated Lowe's employment so that he
could bring in his own secretary. This
42 U.S.C. § 1983 suit followed.[2] The respondents moved for summary judgment
and the trial court granted it, concluding that Lowe's employment was at-will
and, therefore, discharging her for no cause did not violate her right to due
process. Lowe appealed and, in an
unpublished decision released April 12, 1994, we reversed the summary judgment
because there were disputed issues of material fact. See Lowe v. City of Appleton, No. 93-2464,
unpublished slip op. at 10 (Wis. Ct. App. April 12, 1994). Specifically, we remanded the matter for a
determination of whether the parties intended to bind each other by the manual,
creating an employment contract. Id.
at 10-11. If they did, we held, it must
also be determined whether the contract altered their at-will employment
relationship and the parties' intent on that issue. Id. at 11.
On remand, the special
verdict form submitted to the jury contained five questions. The first question asked, "Did the
plaintiff, Dorothy Lowe, have a property interest in her job with the City of
Appleton, that is, did she have a contract of employment with the City of
Appleton?" The second question
stated, "Did such a contract alter the at-will status of Dorothy Lowe's
employment with the City of Appleton?"
The jury answered the first question yes, the second question no, and
did not answer the remaining questions because the verdict form directed the
jury to answer additional questions only if all previous answers were
"yes."
Lowe moved the trial
court to change the jury's answers and, alternatively, for a new trial,
contending the jury's answers are inconsistent and perverse. The trial court denied the motion and
granted the respondents' motion for judgment on the verdict, concluding that
the answers "are not mutually exclusive, nor inconsistent."
On appeal, Lowe argues
that she is entitled to a new trial because the jury's answers are inconsistent
and perverse. Additionally, she
challenges the trial court's special verdict form, stating, "[I]t was the
Trial Court's insertion of Question No. 2, a question neither party proposed,
that created the possibility of inconsistent answers." We begin with Lowe's objection to the
questions in the special verdict.
While Lowe does not
explicitly argue that the special verdict form was defective, she criticizes
the questions and suggests they gave rise to inconsistent jury answers. We conclude that Lowe has waived any errors
with respect to the form of the special verdict, due to her failure to object
to the proposed verdict and to state the grounds for objection with
particularity on the record. Section
805.13(3), Stats., provides in
relevant part: "Counsel may object
to the proposed instructions or verdict on the grounds of incompleteness or
other error, stating the grounds for objection with particularity on the
record. Failure to object at the
[instruction and verdict] conference constitutes a waiver of any error in the
proposed instructions or verdict."
Lowe does not claim to have satisfied the requirements of
§ 805.13(3), although she points out that she submitted special verdict
questions the trial court chose not to adopt.
Additionally, she has not provided this court with a complete record of
the proceedings, including the verdict conference, so we cannot ascertain
whether an objection was made on the record.
For these reasons, we conclude that Lowe has waived any errors in the
special verdict form.
Lowe may, however,
maintain her argument that the jury's answers to the special verdict questions are inconsistent and perverse. First, we examine whether the jury's answers
are inconsistent. An inconsistent
verdict is one in which the jury answers are logically repugnant to one
another. Becker v. State Farm
Mut. Auto Ins. Co., 141 Wis.2d 804, 821, 416 N.W.2d 906, 913 (Ct. App.
1987).
Lowe argues that it is
inherently inconsistent that Lowe could have a property interest in her job, as
the jury found in its answer to special verdict question number one, and
maintain an at-will status, as the jury found in its answer to question
two. Lowe explains: "A property interest in one's job under
the Wisconsin Law, as this Court's analysis makes clear, alters 'the at-will
relationship,'" citing our decision on the first appeal.
Lowe misinterprets the
language of our earlier decision. We
did not hold that an at-will relationship is altered whenever there is a
contract between an employer and an employee.
Instead, we explained that if there is an employment contract, it must
be examined to determine what its terms provide. Lowe, slip op. at 8. The terms may alter the at-will relationship. Or, as we noted in our first opinion, the
contract could provide terms unrelated to the at-will relationship, such as
provisions on fringe benefits. Id.
at 7-8.
The trial court
acknowledged our reasoning when it decided to deny Lowe's motion for a new
trial and, instead, granted judgment on the verdict. The trial court explained:
The
evidence in this case, upon which the plaintiff relied to establish a contract,
consisted solely of the policy handbook, which was made and distributed to Mrs.
Lowe as well as to other City employees.
It was distributed by the City and made by the City. The jury could logically and consistently
have found, as they did, that there was, indeed, a contract created between
Mrs. Lowe and the City of Appleton.
That contract was created by the policy handbook with regard to several
items. The jury could have logically
found that some of those items included vacation time, sick leave, funeral
leave, insurance benefits, or other matters.
And still logically, they could conclude that the policy handbook
language did not alter the at-will status of Dorothy Lowe's position. These two findings are not mutually
exclusive, nor inconsistent.
Implicit in the trial
court's decision to deny Lowe's motion for a new trial and to grant judgment on
the verdict was the trial court's review of the evidence presented at
trial. Lowe has not provided this court
with a copy of the trial transcript, so we must assume every fact essential to
sustain the trial court's decision is supported by the record. See Suburban State Bank v.
Squires, 145 Wis.2d 445, 451, 427 N.W.2d 393, 395 (Ct. App. 1988). Therefore, we must assume the evidence
before the jury indicated that Lowe and the City had a contract that governed
specific areas (e.g., insurance benefits), but did not alter the at-will
relationship.
In sum, we must assume
the evidence supports the jury's verdict and the trial court's decision. Additionally, we have concluded that the
jury's verdict is not inherently inconsistent because it is possible for an
employee to have an employment contract that governs specific areas and, at the
same time, be an at-will employee.
Next, we consider Lowe's
argument that the jury's answers are perverse.
For a verdict to be perverse, there must be something to warrant a
finding that considerations which were ulterior to a reasonably fair
application of the jury's judgment to the evidence, under the court's
instructions, controlled or materially influenced the jury. Becker, 141 Wis.2d at 820, 416
N.W.2d at 913. A verdict is perverse
when the jury clearly refuses to follow the direction or instruction of the
trial court upon a point of law, or where the verdict reflects highly emotion,
inflammatory or immaterial considerations, or an obvious prejudgment with no
attempt to be fair. Id.
We agree with the
respondents that Lowe "has pointed to nothing which even remotely suggests
that the jury was acting pursuant to highly emotional, inflammatory or
immaterial considerations or out of any sense of pre-judgment." See id. Therefore, we reject Lowe's argument that
the jury's verdict was perverse.
Because we have concluded that the jury's verdict was neither
inconsistent nor perverse and that she has waived any errors in the special
verdict form, we conclude that Lowe is not entitled to a new trial.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.
[2]
42 U.S.C.A. § 1983 (West 1981) states in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.