Wisconsin Court of Appeals
Civil Procedure — frivolous actions
Travel Services, represented by Hinshaw & Culbertson, LLP, filed a tortious interference with contract claim against Assistant Attorney General Phillip Ferris. For ease of discussion, we will refer to Travel Services and Hinshaw & Culbertson collectively as Travel Services. Ferris moved to dismiss the complaint, and requested an order declaring the action frivolous under Wis. Stat. § 895.044. Less than 21 days later, Travel Services withdrew its complaint. What was left was defendant Ferris’s motion to have the action declared frivolous and the question whether dismissal of Travel Services’ action should be with or without prejudice. As to frivolousness, Ferris argued, in part, that, under § 895.044(1)(b), Travel Services knew or should have known that the action lacked a reasonable basis in the law. The circuit court rejected Ferris’s assertion that the action was frivolous and left in place an order of dismissal without prejudice. We reverse with respect to frivolousness, and remand with directions that the circuit court revisit whether dismissal should be with or without prejudice. We further direct that the circuit court address whether to award costs and fees and, if so, in what amount. Not recommended for publication in the official reports.
Dist IV, Dane County, Albert, J., Lundsten, J.
Attorneys: For Appellant: Sullivan, Francis X., Madison; Gendreau, Chad R., Madison; For Respondent: Hannan, Edward A., Waukesha; Biskupic, Steven M., Mequon; Jacobs, Michelle L., Mequon