Frivolous Appeals Case Analysis

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The decision in this case promised more than was delivered, for the court could have done much more than merely direct that the court of appeals give an attorney the opportunity to respond before finding an appeal frivolous.

For example, the court discusses the court of appeals’ decision in Riley v. Isaacson, 156 Wis.2d 249, 456 N.W.2d 619 (Ct.App.1990), but fails to state whether it agrees with the holding — that if a claim was correctly adjudged to be frivolous in the trial court, it is frivolous per se on appeal.

If the court made no mention of Riley, at all, the decision could be interpreted to overrule Riley sub silentio. However, the court did discuss Riley, but without expressing any opinion as to its correctness.

So, the question becomes, can the two holdings be reconciled, or is a per se finding of frivolousness on appeal incompatible with the requirement that an opportunity to respond be given before finding frivolousness?

The two cases are somewhat different procedurally. In Riley, only the attorney appealed the sanctions against him; the client did not appeal the underlying decision. In the case at bar, the Denomies appealed both the underlying decision and the sanction for frivolousness.

Riley could thus be limited to appeals that involve only the award of sanctions. Logically, however, if one accepts the reasoning in Riley, it should apply with even more force when the underlying judgment is appealed, as well. The standards for finding a claim at the trial court and at the appellate level frivolous are identical.

The court of appeals suggested as much in NBZ, Inc. v. Pilarski, 185 Wis.2d 827, 520 N.W.2d 93 (Ct.App.1994), holding that the court of appeals may reasonably infer that a lawsuit commenced and pursued in bad faith was also maintained upon appeal in bad faith.

The court could easily have addressed whether any inference, or presumption of frivolousness should attach when the court of appeals upholds a finding that a claim or counterclaim was frivolous at the trial level.

	Related Links Wisconsin Court System Related Article Notice required to find frivolousness

The court could also have stated whether it agrees with the court of appeals in Sheard v. Sheard, 129 Wis.2d 308, 384 N.W.2d 712 (Ct.App.1986), that a motion for frivolousness must be submitted no later than the filing of the respondent’s brief.

The court said that a motion should be separate, and not included within the body of the brief. An unwary attorney could submit his brief, then draft his motion under sec. 809.25(3), thinking that he was doing what the Supreme Court directed, only to then have his motion dismissed as untimely.

The court could also have explicitly addressed how much notice and opportunity a party is to be given. Section 809.14(1) provides that any party shall have 11 days to respond to any motion by another party in the court of appeals. The court could have explicitly said that, similarly, when the court of appeals decides, on its own motion, to consider the frivolousness of an appeal, it must give the offending party at least 11 days to respond.

Admittedly, none of these questions were directly raised by the case at bar. Nevertheless, all are clearly within the scope of the court’s direction that the parties "address the procedure by which the court of appeals may determine an appeal is frivolous pursuant to Wis. Stat. Rule 809.25(3)(c)," and thus, would have been valuable guidance.

Instead, attorneys must ferret out these rules and precedents themselves, and guess whether they apply.

– David Ziemer

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David Ziemer can be reached by email.