Opinion
No. 2014AP729.
2014-11-6
Donna PETERS and Larry Peters, Plaintiffs–Respondents, v. UNION CAB OF MADISON COOPERATIVE, Defendant–Appellant.
Wis. Stat. § 809.25(3)(c). The Peters allege that Union Cab should have known that its appeal was without merit, misstated the standard of review on appeal, raised new arguments on appeal, failed to cite to evidence supporting some of its arguments, and brought this appeal “arguably” in bad faith. I agree that Union Cab did not present its arguments in light of the correct standard of review and failed to include citations to the record in support of some of its arguments, contrary to Wis. Stat. RuleE 809.19(1)(d), which requires “appropriate references to the record.” Nevertheless, I conclude that Union Cab made reasonable, good faith arguments. I therefore conclude that Union Cab's appeal was not frivolous and deny the Peters' motion for attorney fees and costs.
Appeal from a judgment of the circuit court for Dane County: Maryann Sumi, Judge. Affirmed.
¶ 1 SHERMAN, J.
This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(a) (2011–12). All references to the Wisconsin Statutes are to the 2011–12 version unless otherwise noted.
Union Cab of Madison Cooperative appeals a judgment awarding Donna and Larry Peters damages they incurred when forced to reschedule travel plans after Union Cab failed to pick them up as previously scheduled. For the reasons discussed below, I affirm.
¶ 7 Union Cab also challenges the damages awarded to the Peters. Union Cab does not challenge the evidence supporting the damages, but instead argues that the damages are too “remote, unforeseeable” and disproportionate to the cost of the cab ride to be sustainable.
¶ 8 When reviewing an award of damages, an appellate court applies a highly deferential standard of review. Selmer Co. v. Rinn, 2010 WI App 106, ¶ 28, 328 Wis.2d 263, 789 N.W.2d 621. If sufficient evidence supports the court's finding of damages, we must uphold the court's finding unless that finding is clearly erroneous. Cianciola, LLP v. Milwaukee Metro. Sewerage Dist., 2011 WI App 35, ¶ 21, 331 Wis.2d 740, 796 N.W.2d 806.
¶ 9 To be recoverable in a contract claim, damages must flow from the breach and “ ‘be reasonably foreseeable at the time the contract was made as a probable result of the breach.’ “ United Concrete & Const., Inc. v. Red–D–Mix Concrete, Inc., 2013 WI 72, ¶ 54, 349 Wis.2d 587, 836 N.W.2d 807 (quoted source omitted). Union Cab asserts that it could not “remotely have contemplated the prospect of [the Peters'] claims” in light of the uncertainty of the costs that might arise from the Peters' missed flight, the details of which Union Cab was unaware. However, it is that uncertainty, as well as the knowledge that flights are expensive, especially when purchased on short notice that makes the Peters' damages foreseeable. Furthermore, as pointed out by the Peters, our supreme court has stated that the question of foreseeability is not whether “a particular injury is foreseeable ... [instead] it is sufficient to show that ‘some injury could reasonably have been foreseen.’ ” Morden v. Continental AG, 2000 WI 51, ¶ 47, 235 Wis.2d 325, 611 N.W.2d 659 (quoted source omitted). Although the supreme court made this statement in the context of a duty of care analysis, I conclude that it is equally applicable here. Union Cab has not argued that an injury was not foreseeable in this case, but instead argues that the Peters' particular injury was not foreseeable.
¶ 10 I also read Union Cab's brief as arguing that the damages sustained by the Peters were not foreseeable because the amount of the award is not proportionate to an ordinary cab fare. Union Cab cites this court to General Star Indem. Co. v. Bankruptcy Estate of Lake Geneva Sugar Shack, Inc., 215 Wis.2d 104, 119–120, 572 N.W.2d 881 (Ct.App.1997), as best as I can discern, for the proposition that damages that are disproportionate to the contract amount are not foreseeable. To the extent that this is what Union Cab intends to argue, I conclude that Union Cab's reliance on General Star is misplaced.
¶ 11 In General Star, this court concluded that an insured could not recover damages for “unrelated and collateral investment dealings” because those damages were not contemplated by the parties. Id. at 120–21, 572 N.W.2d 881. We stated that the insured's damages for the insurer's breach of contract were limited to those damages that were “the natural and probable consequences of the breach and were within contemplation of the parties when the contract was made.” Id. at 120, 572 N.W.2d 881. We further stated that a premium of $10,000 in exchange for potential liability in excess of $3 million “strongly suggest[ed]” the parties had not intended to cover such losses in the event of a breach. Id. at 120–21, 572 N.W.2d 881.
¶ 12 Unlike General Star, the damages sustained in the present case were a natural and direct consequence of Union Cab's breach. Moreover, I conclude as a matter of law that the difference between the potential cab fare (which Union Cab does not inform this court of) and the Peters' damages, is not so substantial as to indicate that the damages were not foreseeable. Accordingly, I conclude Union Cab's assertion that the Peters' damages were not foreseeable to be without merit.
¶ 13 The Peters move for an award of costs and attorney fees on the grounds that the appeal is frivolous under Wis. Stat. RuleE 809.25(3)(c). Whether an appeal is frivolous is a matter of law. Stern v. Thompson & Coates, Ltd., 185 Wis.2d 220, 253, 517 N.W.2d 658 (1994).
¶ 14 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.
Wis. Stat. § 809.25(3)(c). The Peters allege that Union Cab should have known that its appeal was without merit, misstated the standard of review on appeal, raised new arguments on appeal, failed to cite to evidence supporting some of its arguments, and brought this appeal “arguably” in bad faith. I agree that Union Cab did not present its arguments in light of the correct standard of review and failed to include citations to the record in support of some of its arguments, contrary to Wis. Stat. RuleE 809.19(1)(d), which requires “appropriate references to the record.” Nevertheless, I conclude that Union Cab made reasonable, good faith arguments. I therefore conclude that Union Cab's appeal was not frivolous and deny the Peters' motion for attorney fees and costs.
CONCLUSION
¶ 15 For the reasons discussed above, I affirm.
Judgment affirmed.
This opinion will not be published. See Wis. Stat. RuleE 809.23(1)(b)4.