In US Bank NA v. Tellock, (2019AP378) the District I Court of Appeals affirmed the suppression of emotional distress evidence because damages for emotional distress were not available.

Facts

Tellock defaulted on her mortgage, so she and her lender, US Bank, negotiated a signed a modified loan agreement. After the agreement had been signed and the new payment began to be made, US Bank realized that there was an error in the new loan agreement which erroneously reduced the principal owed. Because of this, US Bank stopped accepting payments and attempted to foreclose on the home based on the original mortgage. Tellock brought the case to trial, where she wanted to bring evidence of emotional distress. The circuit court granted US Banks motion in limine, because damages for emotional distress were not available for a violation of Wis. Stat. § 224.77(1), which was the primary issue at trial. Tellock won at trial, the new loan agreement was upheld and controlling, and she was granted attorney fees. However, Tellock appealed in part based on the suppression of her emotional distress evidence.

Discussion

The court’s primary focus was the Wisconsin Supreme Court decision that Tellock relied upon, Anderson v. Continental Insurance Co., 85 Wis. 2d 675, 271 N.W.2d 368 (1978). Tellock argued that Anderson allowed her to seek recovery for emotional distress if there was intentional conduct and other damages. The court disagreed and concluded:

[T]hat the Anderson court did not establish the broad right to damages for emotional distress that Tellock claims, but instead limited it analysis to the context of tort actions in which there is a duty that exists independent of any contract obligation. Tellock correctly states that Anderson did recognize that a party could seek damages for emotional distress without pleading the specific tort of intentional infliction of emotional distress. However, we do not agree that Anderson expanded the ability to recover for emotional distress under any cause of action by simply showing intentional conduct and substantial other damages. 9 Rather, as explained in Anderson and Foseid, a claim may proceed in tort only if there is a special duty owed by the defendant to the plaintiff as a result of the relationship between the parties that is independent of the duty to perform under the contract. Thus, under Anderson, a claimant still must assert a cause of action in tort, and cannot merely assert any cause of action and simply show intentional conduct and substantial other damages to be entitled to recover damages for emotional distress.

At ¶16.

The other issue raised by Tellock was not properly before the court, so they did not address it in length. The court affirmed.