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COURT OF APPEALS
DECISION
DATED AND FILED
July 7, 2009
David
R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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Jeanine L. Jackson,
Plaintiff-Appellant,
v.
United Migrant Opportunity
Services, Cleshete Nash,
Montreal Wade,
Shimona Seabrooks, Mario Reed,
Bessie Gross, Laurie Moss, Quintella Pippen and
Paula Lampley,
Defendants-Respondents.
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APPEAL
from a judgment of the circuit court for Milwaukee County: michael
b. brennan, Judge. Affirmed
and cause remanded with directions.
Before Curley, P.J., Fine and Kessler, JJ.
¶1 PER CURIAM. Jeanine L. Jackson appeals from
a judgment dismissing her complaint against United Migrant Opportunity Services
(UMOS), Cleshete Nash, Montreal Wade and Paula Lampley. Jackson alleged that Wade, a security guard
at UMOS, had intentionally inflicted emotional distress on her and that Nash
and Lampley, Wade’s superiors at UMOS, negligently supervised Wade. A jury trial was begun and after Jackson rested, the
circuit court granted the defendants’ motion for a directed verdict. See
Wis. Stat. § 805.14(3) (“At
the close of plaintiff’s evidence in trials to the jury, any defendant may move
for dismissal on the ground of insufficiency of evidence.”). The circuit court subsequently granted the
defendants’ motion for sanctions and attorneys’ fees related to a motion for
injunctive relief, see Schultz v. Sykes, 2001 WI App 255,
¶53, 248 Wis. 2d 746, 787, 638 N.W.2d 604, 623, and entered judgment
against Jackson in the amount of $13,759.92.
Jackson
appeals. We affirm.
BACKGROUND
¶2 Because of the incomplete appellate record, a full recitation
of the facts is not necessary. For
purposes of this opinion, it is sufficient to note that Jackson participated in a job-training
program at a UMOS facility during 2006.
While at UMOS, Jackson
encountered Wade, who worked as a security guard for UMOS. The parties’ descriptions of the relationship
between Jackson and Wade diverge greatly, and in October 2006, Jackson commenced this litigation.
¶3 Jackson
has represented herself throughout this litigation. In a Second Amended Complaint, Jackson alleged five
causes of action, two of which survived the defendants’ motion for summary
judgment—intentional infliction of emotional distress by UMOS and Wade, and
negligent supervision of Wade by Nash and Lampley. A jury trial began on June 25, 2008. The minutes maintained by the clerk of the
circuit court show that Jackson
called Wade, Lampley, and Jasmine Jackson, in addition to herself. After Jackson
rested, the defendants moved for a directed verdict. After hearing argument, the circuit court
granted the motion and dismissed Jackson’s
complaint with prejudice.
DISCUSSION
¶4 On appeal, Jackson
describes the issues as whether Wade inflicted intentional emotional distress
and whether Nash and Lampley were negligent in their supervision of Wade. Jackson
contends that the legal elements of her claims were met, and to support that
contention, Jackson
cites to deposition evidence. Jackson does not cite to
any portion of the trial. Indeed, the
Record does not contain the transcript of the jury trial, although it does
contain copies of several depositions.
In the appendix to her appellate brief, Jackson included an excerpt from the circuit
court’s oral decision granting the defendants’ motion for directed
verdict. That transcript, however, is
not in the Record, and the evidentiary portion of the jury trial is likewise
not in the Record.
¶5 An appellant is responsible for ensuring that the Record on
appeal contains the material necessary for this court to address the
issues. See Fiumefreddo v. McLean,
174 Wis. 2d
10, 26, 496 N.W.2d 226, 232 (Ct. App. 1993).
Because this court does not have a copy of the trial transcript, the
Record is incomplete and “when an appellate record is incomplete in connection
with an issue raised by the appellant, we must assume that the missing material
supports the [circuit] court’s ruling.” Id., 174 Wis. 2d
at 27, 496 N.W.2d at 232. “Given an incomplete record, we will assume
that it supports every fact essential to sustain the [circuit] court’s
[decision.]” State Bank of Hartland v. Arndt,
129 Wis. 2d
411, 423, 385 N.W.2d 219, 225 (Ct. App. 1986).
The following observation from Austin v. Ford Motor Co., 86 Wis. 2d 628,
642–643, 273 N.W.2d 233, 239 (1979), is particularly apt:
The [circuit] court, with a
full record before it and having heard the testimony, determined that the
defendant had not come forward with proof of contributory negligence as a cause
of death. The defendant could have
produced the transcript if it wished to demonstrate to this court that it had
in fact met its burden of proof. It did
not; and, in the absence of such proof, this court will not reverse the
[circuit] court’s conclusion ….
¶6 A circuit court may direct a verdict when “‘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.’”
Haase v. Badger Mining Corp., 2004 WI 97, ¶15, 274 Wis. 2d 143, 151,
682 N.W.2d 389, 393 (citation omitted).
Because the circuit court is in the best position to judge the weight
and relevancy of the evidence, we will not set aside its decision to dismiss
for insufficient evidence unless the record reveals that the court was “‘clearly
wrong’” about the existence of credible evidence to support the claim. Id., 2004 WI
97, ¶17, 274 Wis. 2d
at 151, 682 N.W.2d at 393 (citation omitted).
¶7 By not ensuring that the trial transcript was included in the
appellate Record, Jackson
has made it impossible for this court to ascertain whether the circuit court
was clearly wrong. We must assume that
the missing parts of the Record support the circuit court’s decision and,
accordingly, Jackson’s
appeal fails.
FRIVOLOUS APPEAL
¶8 UMOS contends that Jackson’s
appeal is frivolous and moves for costs and attorneys’ fees under Wis. Stat. Rule 809.25(3)(c). That statute provides that an appeal is
frivolous when:
1. The appeal … was filed, used or continued in
bad faith, solely for purposes of harassing or maliciously injuring another.
2. The party or the party’s attorney knew, or
should have known, that the appeal … was without any reasonable basis in law or
equity and could not be supported by a good faith argument for an extension,
modification or reversal of existing law.
¶9 UMOS contends that Jackson’s
appeal is frivolous under either standard.
It also asks this court to grant injunctive relief and “revoke Jackson’s ability to proceed before the court as an
indigent and requir[e] Jackson
to pay the costs and fees imposed in this action before filing or continuing
any further litigation involving UMOS, its agents and its employees.”
¶10 Whether an appeal is frivolous under Wis. Stat. Rule 809.25(3)(c)2. is a question of law. Larson v. Burmaster, 2006 WI App
142, ¶45, 295 Wis. 2d
333, 369, 720 N.W.2d 134, 151. This
court considers “‘what a reasonable party or attorney knew or should have known
under the same or similar circumstances.’”
Ibid. (citation omitted).
The question is not whether the appellant can prevail on appeal, but
rather whether the appeal is so indefensible that the party should have known
it to be frivolous. Baumeister v. Automated Prods.,
Inc., 2004 WI 148, ¶28, 277 Wis. 2d
21, 43, 690 N.W.2d 1, 11. Although any
doubts should be resolved in favor of finding an appeal not to be frivolous, ibid.,
“a pro se litigant is required to make a reasonable investigation of the facts
and the law before filing an appeal,” Holz v. Busy Bees Contracting, Inc.,
223 Wis. 2d
598, 608, 589 N.W.2d 633, 637 (Ct. App. 1998).
¶11 Jackson’s
appeal was frivolous under Wis. Stat.
Rule 809.25(3)(c)2. In her Statement
on Transcript, filed at the outset of the appeal, Jackson stated that a transcript was not
necessary for the prosecution of the appeal.
In light of this court’s standard of review of a directed verdict, set
forth in ¶6, Jackson’s
choice to proceed without a transcript doomed her appeal to failure. Without a trial transcript, it can easily be
said that Jackson’s
appeal did not have a reasonable basis in law or equity and, therefore, was
frivolous within the meaning of Rule
809.25(3)(c)2. We decline, however, to order injunctive
relief against Jackson. As evidenced by the unchallenged sanction
order entered by the circuit court, Jackson’s
conduct during this litigation was highly suspect. It does not yet, however, rise to the level of
repetition needed to justify injunctive relief.
See, e.g., Puchner v. Hepperla,
2001 WI App 50, ¶2, 241 Wis. 2d 545, 548–549, 625 N.W.2d 609, 610 (per
curiam) (twenty previous appellate court filings); State v. Casteel, 2001 WI
App 188, ¶19, 247 Wis. 2d 451, 461, 634 N.W.2d 338, 344 (eight previous Wis. Stat. § 974.06 motions); Minniecheske
v. Griesbach, 161 Wis. 2d
743, 745, 468 N.W.2d 760, 761 (Ct. App. 1991) (“more than five years of
numerous pleadings, motions and appeals … based on the same facts and issues”).
¶12 We remand the matter to the trial court to conduct a hearing to
assess the amount of reasonable costs and attorney fees incurred by UMOS on
appeal.
By the Court.—Judgment affirmed and
cause remanded with directions.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.