Frivolousness Case Analysis

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The court based its decision solely on the language of Rule 809.25(3), without addressing the merits of Solner’s argument that requiring an entire appeal to be frivolous, before sanctions will be imposed, leads to absurd results.

Regardless of the statutory language, however, it is clear that the interpretation adopted by the court will, in some cases, lead to absurd results.

Tort cases, such as the one in the case at bar, provide an excellent illustration.

There are four elements to a tort: duty; breach; causation; and damages. For all practical purposes, everyone in Wisconsin owes a duty to everyone else, so the first element is rarely an issue.

Suppose, therefore, that a plaintiff files the most patently frivolous lawsuit imaginable. On motion for summary judgment, the trial court finds that, although the defendant had a duty to the plaintiff, he did not breach it, and even if he did, the breach did not cause any damages to the plaintiff.

If the plaintiff appeals, the appeal is frivolous, and costs and attorney fees must be awarded to the defendant.

Suppose, however, that the same lawsuit is filed, but a renegade trial judge erroneously holds that the defendant owed the plaintiff no duty of any sort.

If the plaintiff appeals in this instance, the appeal is not frivolous, solely because the trial judge erred on the duty issue, even though the original lawsuit itself may be the most frivolous imaginable.

Such a scenario is very different from one in which the plaintiff alleges both contract and tort theories, loses on both at the trial level, appeals both, and the court of appeals finds that, while the tort theory was frivolous, the contract theory had arguable merit. In such a case, the court’s holding both comports with the Rule and results in no absurdity.

Furthermore, the cases from the court of appeals that the Supreme Court cites are all more similar to the tort/contract scenario than the one in the case at bar.

For example, in Manor Enterprises v. Vivid, Inc., 228 Wis. 2d 382, 403, 596 N.W.2d 828 (Ct. App. 1999), the appellant appealed two separate claims — one for waste, and one for trespass. The court found only the waste claim frivolous, and therefore, declined to find the entire appeal frivolous. In the case at bar, in contrast, there was only one claim — negligence.

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In Chase Lumber & Fuel Co. v. Chase, 228 Wis. 2d 179, 210 n.12, 596 N.W.2d 840 (Ct. App. 1999), the appellant appealed two separate orders. The court found the appeal of one order frivolous, and the other not frivolous, and accordingly, declined to find the entire appeal frivolous.

In Tennyson v. School Dist. Of Menomonie Area, 2000 WI App 21, 232 Wis.2d 267, 289-290, 606 N.W.2d 594, 606, the court declined to find an appeal frivolous, where the appeal had arguable merit, save for one argument related to one jury instruction.

Thus, the court’s decision in the case at bar does not merely affirm longstanding court of appeals’ precedent, but significantly expands it.

After this decision, if the trial court makes one small error, no matter how trivial, and how harmless to the outcome, and no matter how frivolous the lawsuit is, viewed in its entirety, a successful appellee cannot obtain attorney fees and costs on appeal, because of that minor mistake.

While the moral, "don’t look a gift horse in the mouth," may be sound policy generally, an attorney faced with a frivolous lawsuit would be wise to refuse the gift in some instances, when that gift is a clearly wrong holding by a trial judge that will have no bearing on the ultimate decision.

A minor concession may be a small price to pay, to ensure that attorney’s fees and costs can be obtained if the other party files a frivolous appeal.

– David Ziemer

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David Ziemer can be reached by email.