2005AP2837 Trinity Petroleum, Inc. v. Scott Oil Co., Inc.

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Rule 802.05, the new rule governing frivolous actions, is retroactive, but is not to be applied retroactively when the new rule diminishes a contract, disturbs vested rights, or imposes an unreasonable burden on the party charged with complying with the new rule’s requirements.

“The plaintiff argues that the Mosing standard, which requires that the retroactive application of a procedural statute ‘not impose an unreasonable burden,’ is unsupported in the case law. As an example, the plaintiff cites Gutter v. Seamandel, which states the standard governing the retroactive application of statutes but does not include the “unreasonable burden” test. The plaintiff insists that Mosing’s ‘unreasonable burden’ language is superfluous and does not amount to a precedential rule of law.

“We do not agree with the plaintiff. Mosing has never been overturned. It is good law, and it is supported by federal Rule 11 and federal cases interpreting and applying Rule 11. The federal order adopting the 1993 amendments to Rule 11 expressly instructed that the amended version Rule 11 governs ‘all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings in civil cases then pending.’

“The federal standard for retroactive application of Rule 11, namely ‘just and practicable,’ requires essentially the same analysis as, in the words of the Mosing court, whether retroactive application of a statute would ‘impose an unreasonable burden upon [the party] as to its procedural requirement.’ The Mosing holding regarding the application of a statute adopted by the court under its rule-making powers parallels the federal law and cases governing retroactive application of Rule 11, and we apply Mosing to the instant case.”

Reversed and Remanded.

Abrahamson, C.J.

Attorneys: For Appellant: Marcuvitz, Alan, Milwaukee; Ramirez, Juan S., Milwaukee; For Respondent: Rose, Douglas W., Brookfield