Entire appeal must be frivolous for sanctions

Listen to this article

Hon. N. Patrick Crooks

The Wisconsin Supreme Court held on Dec.15 that an appeal must be wholly frivolous for costs, fees, and attorney’s fees to be awarded pursuant to Rule 809.25(3).

In 1994, Holy Trinity Lutheran Church (Holy Trinity) retained Edward Solner, an architect, to design its new church. Solner entered into a contract with Holy Trinity pursuant to the Standard Form of Agreement Between Owner and Architect, AIA Document B141 (1987 ed.), which contained the language from Sections 2.6.5 and 2.6.6. Holy Trinity had the option to extend Solner’s project responsibilities beyond the services listed in the contract, but chose not to do so.

Holy Trinity hired Roberts Construction Associates, Inc. (Roberts), also pursuant to standard forms. The contract specified, among other things, that both Roberts and its subcontractors must follow certain requirements related to truss installation.

Solner completed his plans for the new church and then designed "contract specifications" for the wood trusses to be placed above the main assembly area. Meanwhile, Roberts hired Automated Products, Inc. (Automated) to provide the fabricated wood trusses. An engineer from Automated, Gary Korpela, designed the trusses and their layout to meet the "contract specifications."

Automated then shipped the trusses to the construction site and attached instructions that the builder shall be responsible for proper truss handling and bracing.
Bryan Baumeister and Jeffrey Brown were construction workers on the site, employed by a subcontractor of Roberts. They were seriously injured during the erection of the trusses, because the guidelines were not followed.

Various claims and cross-claims were brought, in one of which Baumeister and Brown claimed that Solner was liable for their injuries. Solner moved for summary judgment, and Dane County Circuit Court Judge Richard J. Callaway granted the motion, holding that Solner had no duty to supervise the installation of the trusses.

Solner also requested attorney fees, on the ground that the suit against him was frivolous, but the case was appealed before the circuit court ruled on the motion. The court of appeals unanimously affirmed the grant of summary judgment in an unpublished opinion, finding that Solner had no duty to supervise the site, and that, even if he did, causation could not be shown.

However, the court was divided on the issue of frivolousness. Only one judge found the action frivolous. The majority held that Solner was not entitled to costs, fees, and attorney fees, because not all of the arguments raised on appeal were completely void of arguable merit, specifically, the causation issue.

The Supreme Court accepted review, and affirmed in a unanimous decision by Justice N. Patrick Crooks. Justice Jon P. Wilcox did not participate.

Summary Judgment

The court first held that summary judgment was appropriately granted to Solner.

On the issue of breach of duty, the court reasoned, "The holding of the court of appeals is consistent with our decision in Vonasek v. Hirsch and Stevens, Inc., 65 Wis. 2d 1, 221 N.W.2d 815 (1974). In that case, a general contractor brought a claim against an architect to recover for damages from a building that collapsed. The contractor alleged that the architect had supplied defective plans and specifications, and that his supervision of the project was inadequate. We concluded that the architect’s contract with the owner did not require the architect to specify procedures or to supervise the work of the contractor. ‘To hold otherwise would make the architect a general safety supervisor at the site, a job which would require his continuous presence in disregard of the express language of his contract.’ Id. at 11-12."

The court also agreed that Baumeister and Brown failed to demonstrate causation, quoting the court of appeals as follows: "Since Baumeister and Brown did not follow the Truss Plate Institute guidelines, they cannot show that a directive that the guidelines be followed was a substantial factor in producing their injuries."

Accordingly, the court agreed that Solner established an unrebutted prima facie case that there were no genuine issues of material fact, and the grant of summary judgment was appropriate.

Frivolousness

The court next held that the court of appeals correctly held that Rule 809.25(3) does not apply unless an entire appeal is frivolous, and, because the breach of duty issue had arguable merit, the appeal in this case was not.

While the Supreme Court has not previously addressed the issue, the court of appeals has many times: In re Carpenter v. Mumaw, 230 Wis. 2d 384, 398, 602 N.W.2d 536 (Ct. App. 1999); Manor Enterprises v. Vivid, Inc., 228 Wis. 2d 382, 403, 596 N.W.2d 828 (Ct. App. 1999); Chase Lumber & Fuel Co. v. Chase, 228 Wis. 2d 179, 210 n.12, 596 N.W.2d 840 (Ct. App. 1999); and Nichols v. Bennett, 190 Wis. 2d 360, 365 n.2, 526 N.W.2d 831 (Ct. App. 1994).

	Related Links Wisconsin Court System Related Article Case Analysis

The court agreed: "We uphold this approach, since the court of appeals has applied Rule 809.25(3) correctly. The statute specifically authorizes sanctions only upon a determination that the ‘appeal or cross-appeal’ was frivolous. There is nothing in the language of Rule 809.25(3) that allows a court to determine that an appeal is frivolous, merely because an individual claim or defense is frivolous, and nothing has persuaded us to apply the statute in such a manner."

Solner argued that this interpretation leads to illogical results, contending that, because causation is a determinative factor in a negligence analysis, if causation cannot be established, that the entire appeal should be found to be frivolous.

The court rejected the argument, however, finding, "This argument is flawed. We need to find each of their arguments frivolous, under Wis. Stat. Rule 809.25(3)(a), in order to find the entire appeal frivolous." The court thus affirmed this issue as well.

Procedure

Before concluding, the court addressed the proper procedure to follow when both an appeal and a motion for attorney fees are filed by the parties.

The court advised, "We encourage a party alleging a frivolous claim to move the appellate court to stay the appeal, and retain jurisdiction while the case is remanded for a circuit court ruling on the frivolousness issue. If a party chooses to appeal the circuit court’s frivolousness ruling, the appellate court can then combine the initial appeal on the merits with the appeal of the decision of the circuit court on frivolousness."

Click here for Case Analysis.

David Ziemer can be reached by email.