Appellate Procedure

Forfeiture of Claims – Frivolous Appeals – Wis. Stat. § 895.044

Thompson v. Ouellette, 2023 WI App 7 (filed Jan. 20, 2023) (ordered published Feb. 22, 2023)

HOLDING: A party’s “entire appeal” was not frivolous within the meaning of Wis. Stat. section 895.044(5).

SUMMARY: In this opinion, the court of appeals rejected a party’s motion to reconsider a prior decision that had found that an appeal was not frivolous. The case involves an underlying divorce action in which the circuit court rejected the wife’s claim that part of the marital estate should include a land contract that she purportedly had entered into with her husband and his parents. The trial judge rejected the wife’s claim at the close of her case-in-chief, dismissing the parents as parties to the divorce action. The wife appealed, and although the court of appeals rejected the wife’s claims, the court of appeals held that the appeal was not frivolous. The present opinion addresses the parents’ motion for reconsideration.

In an opinion authored by Judge Graham, the court of appeals denied the parents’ motion to reconsider. It considered two issues. First, the court ruled that the parents had not forfeited their claim by failing to cite or discuss Wis. Stat. section 895.044(5). Although a “strong case” supported the forfeiture argument, the court exercised its discretion to “overlook” the parents’ failure to cite Wis. Stat. section 895.044(5) and reliance instead on Wis. Stat. section 809.25(3) (¶¶ 14-15).

Second, the court addressed the “interplay” between Wis. Stat. section 809.25(3) (“frivolous appeals”) and Wis. Stat. section 895.044 in light of Baumeister v. Automated Products Inc., 2004 WI 148, ¶ 27, 277 Wis. 2d 21, 690 N.W.2d 1, in which the supreme court held that motions under Wis. Stat. section 809.25 require a finding that the “entire appeal” is frivolous (¶ 21). The court observed that Wis. Stat. section 895.044 emanated from the “tort reform” program of 2011, decades after the creation of Wis. Stat. section 809.25 (¶ 26).

Essentially, the court of appeals held that Wis. Stat. section 895.044 did not compel a different result. “[I]n enacting the second sentence of § 895.044(5), the legislature added references to individual elements and arguments, expressly providing that an appeal is frivolous ‘in its entirety if any element necessary to succeed on appeal is supported solely by [a frivolous] argument.’ The unambiguous purpose of this language is to abrogate the Baumeister court’s holding that an appellant cannot be sanctioned for filing a frivolous appeal unless each of its arguments is frivolous” (¶ 37).

The court rejected the parents’ contention that an “entire appeal” is frivolous if any single element “on any issue” is based on a frivolous argument (¶ 38). The parents’ argument was inconsistent with unambiguous language of Wis. Stat. section 895.044(5) (see ¶ 39).
“Under § 895.044(5), attorney fees will not be awarded as damages unless the entire appeal is frivolous, and one situation in which an appeal is frivolous ‘in its entirety’ is when an element, issue, or argument ‘necessary to succeed on appeal’ is supported solely by frivolous arguments” (¶ 44).

Finally, the court observed that the application of Wis. Stat. section 895.044(5) must invariably turn on the facts of each case (see ¶ 45) and that this opinion, while endeavoring to harmonize Wis. Stat. sections 895.044 and 809.25(3), does not resolve “all questions that may arise about” their interplay (¶ 48).

Civil Procedure

Venue – Motion to Change Venue

Stelling v. Middlesex Ins. Co., 2023 WI App 10 (filed Jan. 12, 2023) (ordered published Feb. 22, 2023)

HOLDING: The circuit court properly denied the defendants’ motion to change venue.

SUMMARY: The plaintiff was injured in a motor-vehicle collision that occurred in Sauk County. He filed suit in Dane County against the drivers of both cars (he was a passenger), the cars’ owners, and their insurers. The defendants filed a motion to change the venue to Sauk County as a matter of right and, alternatively, as a discretionary matter. The circuit court denied both motions, and the court of appeals granted the parties leave to appeal.

The court of appeals affirmed in an opinion authored by Judge Kloppenburg. A “longstanding rule” provides that “in an action against multiple defendants, if venue is proper as to any one defendant, then the action is properly venued, and any other defendant is not entitled to a change in venue as a matter of right” (¶ 3). This case involved multiple defendants and the parties’ agreement that venue in Dane County was not proper as to three of them (see ¶ 13). The court’s resolution addressed three issues.

First, only one group of defendants (Mt. Morris) filed the petition for leave to appeal; another group (Middlesex) only filed a “statement” purportedly joining that appeal more than three months later (¶ 15). The failure by Middlesex to join the appeal as a party necessarily meant that Mt. Morris’s appeal also failed because the circuit court had ruled that venue was proper as to Middlesex (see ¶ 19).

Second, and despite the first ruling, the court took up the merits of Mt. Morris’s contention that it was entitled to a change of venue as of right under Wis. Stat. section 801.50(2), particularly as the statute related to “non-natural person defendants” (that is, the insurers) and where they “reside” or do “substantial business” (¶ 27). In a long, careful passage that applied the statute’s plain meaning, the court held that both Mt. Morris and Middlesex failed to show that venue was improper to themselves or that they were entitled to change venue as a matter of right (see ¶¶ 28-71).

Third, Mt. Morris was not entitled to a discretionary change of venue under Wis. Stat. section 801.52. The circuit court properly exercised discretion (for example, the accident occurred in Sauk County but the injured plaintiff was treated in Dane County) (see ¶ 81).

Criminal Procedure

Timely Filing of the Information – Electronic Filing

State v. Aderemi, 2023 WI App 8 (filed Jan. 31, 2023) (ordered published Feb. 22, 2023)

HOLDING: The information in this case was filed in compliance with the statutory requirement that it be filed within 30 days after the preliminary hearing or waiver of that hearing.

SUMMARY: On July 24, 2018, the state charged the defendant with multiple felonies. On Aug. 1, 2018, the defendant waived his right to a preliminary hearing. On Aug. 6, 2018, the circuit court conducted an arraignment hearing. At the arraignment hearing, the prosecutor filed a signed paper copy of the information, and defense counsel acknowledged receipt of the information. The docket for the Aug. 6 proceeding states, “Filed, original information; copies served on defendant” (¶ 7). During later proceedings, it was discovered that the electronic copy of the information in the CCAP system had a file stamp of Dec. 7, 2023.

The relevant statute, Wis. Stat. section 971.01(2), provides that the information must be filed with the clerk within 30 days after completion or waiver of the preliminary hearing; failure to comply with this deadline entitles the defendant to a dismissal of the case without prejudice. In this case, defense counsel argued that the information was not filed until Dec. 7, 2018, when the circuit court’s clerk retrieved and accepted the electronic information and that the defendant therefore was entitled to dismissal of the case (see ¶ 9).

The circuit court found that the information had been timely filed (see ¶ 30). In a majority opinion authored by Judge White, the court of appeals agreed.

The appellate court commenced its analysis by considering the meaning of the term “filing.” In the traditional, paper-based courts, filing has been seen as the moment when counsel submitted a document to the clerk, who then accepted it. When these two steps occur on the same day, the courts have generally recognized a presumptive filing date (see ¶ 17).

The advent of electronic filing has provided specific statutory language regarding filing. Looking to the 2017-18 version of Wis. Stat. section 801.18 (the version in effect at the time of this case), the court of appeals’ majority understood “that the date of submission to the e-filing system is the ‘filing’ date. As this is in accord with Wisconsin’s traditional paper filing law, we conclude that the date of submission by the litigant and not the date of acceptance by the clerk is the presumed ‘filing’ date. There are caveats to this presumption – first, that the file must later be accepted by the clerk. However, as the State argues, there is no deadline in the statute for the clerk to accept the file. Further, there are expectations built into this presumption that the ‘filing’ date stamp on the document is the submission date no matter when the clerk accepts the document and that a litigant will receive a confirmation as a proof of filing” (¶ 20).

The defendant argued that even if the prosecutor initiated filing of the information on Aug. 8, 2018, the filing was not completed until Dec. 7, 2018, because that is the date the clerk file-stamped the document and placed it into the court file. The court rejected this argument “because the statutory language in Wis. Stat. § 801.18(4)(am) establishes that the submission date is the presumptive filing date” (¶ 21). Thus, the circuit court’s findings that the information was filed on Aug. 6, 2018, were not clearly erroneous.

The majority also concluded that the defendant was not prejudiced by the delay in the acceptance of the information in the e-filing system (see ¶ 22). Trial counsel acknowledged receipt of the information in a timely fashion. The defendant “was not deprived of the purpose of the Information to allow him to adequately prepare a defense. The substance of the law – [the defendant] was informed of the charge he faced – was satisfied” (¶ 29).

Judge Dugan filed a dissenting opinion.

Name Changes

Confidential Name Changes – Meaning of Wis. Stat. § 786.37(4)

R.I.B. v. Brown Cnty. Circuit Ct. (In re Name Change of R.I.B.), 2023 WI App 9 (filed Jan. 18, 2023) (ordered published Feb. 22, 2023)

HOLDING: The circuit court did not erroneously exercise its discretion in denying a petition for a confidential name change.

SUMMARY: This case concerned whether the plaintiff met the statutory requirements for a confidential name change under Wis. Stat. section 786.37(4). The court of appeals analyzed the statute’s evidentiary standard for obtaining such a change. The statute provides that a petitioner must demonstrate “by a preponderance of the evidence [] that publication of his or her petition could endanger him or her” (¶ 1).

The plaintiff argued that the statute required him to demonstrate only that it is possible that physical, mental, or emotional harm could occur to him if his name change petition is published. Conversely, the state contended that the statute required the plaintiff to demonstrate that it is more likely than not that physical harm could occur to him if his name change petition is published (see ¶ 2).

The circuit court denied the petition. In an opinion authored by Judge Gill, the court of appeals affirmed.

The court of appeals concluded that the requirement in Wis. Stat. section 786.37(4) “that a petitioner prove ‘by a preponderance of the evidence[] that publication of his or her petition could endanger him or her’ means that the petitioner must prove it is more likely than not that the petitioner could be physically endangered if the name change petition is published. In the context of the whole sentence and given the express use of the preponderance of the evidence standard in relation to the term ‘could,’ ‘could’ does not mean that there is merely any possibility of endangerment. ‘Could’ simply denotes a possible future event” (¶ 39). This standard for allowing a confidential name change is the same without regard to whether the petitioner is a minor or an adult (see ¶ 40).

In this case, the petitioner was assigned female at birth but has since identified as a male. He began transitioning socially while in elementary school by wearing men’s clothing and going by the name “Robert.” At that time, he began to experience bullying, which continued into his middle-school years both at school and in his neighborhood. When Robert was 14 or 15 years old, he began hormone therapy and has since had some sex-change surgery. His physical appearance is now that of a teenage boy. Robert stated that he believes that if his name change petition is published, students at his school and other people will bully him and physically attack him (see ¶ 11).

The circuit court denied the petition for a confidential name change. It found that anyone who has contact with Robert already knows that he is in gender transition and uses a traditionally male name (see ¶ 13). The circuit court ultimately concluded that Robert did not meet the burden of demonstrating that publication of the name-change petition could more likely than not lead to physical endangerment (see ¶ 43).

The court of appeals held that the circuit court did not erroneously exercise its discretion in denying Robert’s petition (see ¶ 49). “The [circuit] court could reasonably conclude that all of Robert’s cited physical attacks were by individuals who already knew his gender identity. In other words, under the court’s reasoning, it is not more likely than not that publication of Robert’s name change petition could endanger him in the future, given that the individuals who have physically harmed Robert in the past already know of his gender identity and thus would not be influenced by the publication of the petition” (¶ 47).

» Cite this article: 96 Wis. Law. 54-57 (April 2023).