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COURT OF APPEALS DECISION DATED AND FILED November 14, 2013 Diane M. Fremgen Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEALS from orders of the circuit court for Dane
County: john c. albert, Judge.
Affirmed and cause remanded with directions.
Before Lundsten,
Higginbotham and Sherman, JJ.
¶1 PER CURIAM. Greg
Griswold appeals an order of the circuit court that denied his motion for
reconsideration of an order granting the respondents’ motion for sanctions
against Griswold. Griswold also appeals
Judge John C. Albert’s decision not to recuse himself from the case. For the reasons discussed below, we affirm.
Background
¶2 These
consolidated appeals arise from two of several circuit court actions initiated
by Griswold to challenge property taxes assessed against real property located
at 3488 County Highway J in the Town of Cross Plains, Wisconsin. See
generally Dane County Circuit Court
case nos. 2009CV1034 (appeal no. 2009AP1599), 2010CV3552 (appeal no. 2011AP881),
and 2009CV2873 (appeal no. 2012AP433). After
the Board of Review of the Town of Cross Plains denied Griswold’s appeal of the
2010 tax assessment for the Highway J property, Griswold commenced this
action by filing a summons and petition for writ of certiorari in the circuit
court. Griswold requested that Judge
Albert recuse himself. The request was
denied, and Griswold challenges that decision on appeal.
¶3 The
circuit court also imposed sanctions against Griswold, ordering that Griswold
be barred from initiating any further legal action against the Town of Cross
Plains, its Board of Review, or Attorney Mark Hazelbaker concerning Griswold’s
past asserted interest in the Highway J property. Griswold moved for reconsideration, and the
circuit court denied the motion in an order dated and filed May 7, 2012. Griswold now seeks review of that order.
Discussion
¶4 The
appellant’s brief contains numerous complaints about the circuit court
proceedings in this matter. The brief
fails, however, to develop coherent arguments that apply relevant legal
authority to the facts of record, and instead relies largely on conclusory
assertions. “A party must do more than
simply toss a bunch of concepts into the air with the hope that either the
trial court or the opposing party will arrange them into viable and
fact-supported legal theories.” State
v. Jackson, 229 Wis. 2d 328, 337, 600 N.W.2d 39 (Ct. App. 1999). This court need not consider arguments that
either are unsupported by adequate factual and legal citations or are otherwise
undeveloped. See Dieck v. Unified Sch. Dist. of Antigo, 157 Wis. 2d 134, 148
n.9, 458 N.W.2d 565 (Ct. App. 1990) (unsupported factual assertions), aff’d, 165 Wis. 2d 458, 477 N.W.2d 613
(1991); State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633
(Ct. App. 1992) (undeveloped legal arguments). While we make some allowances for the failings
of parties who, as here, are not represented by counsel, “[w]e cannot serve as
both advocate and judge,” Pettit, 171 Wis. 2d at 647, and will
not scour the record to develop viable, fact-supported legal theories on the
appellant’s behalf, see Jackson,
229 Wis. 2d at 337. Here, the appellant
has failed to develop his arguments legally or to support them factually. Therefore, we affirm the circuit court on
that basis.
¶5 Although
we affirm the circuit court for the reason stated above, we choose to briefly
explain why some of Griswold’s arguments, as best we understand them, have no
merit. Turning first to Griswold’s
arguments concerning Judge Albert’s recusal decision, we note that the
determination of a judge’s actual or apparent ability to act impartially is for
the judge to make. See State v. American TV & Appliance of Madison, Inc., 151 Wis.
2d 175, 183, 443 N.W.2d 662 (1989). This court’s review is limited to determining
whether the circuit court made such a determination. Id. at 186. Here, the record reflects that Judge Albert
considered the issue of recusal and made a determination that recusal was not
warranted. Griswold’s conclusory
assertions that Judge Albert was biased against him and that there was an
appearance of impropriety are insufficient to overturn the decision on the
issue of recusal.
¶6 Griswold’s
arguments on the issue of sanctions are also without merit. Our review of a circuit court’s decision that
an action was commenced frivolously pursuant to Wis.
Stat. § 802.05(2) (2011-12)[1] is
deferential. Keller v. Patterson, 2012
WI App 78, ¶21, 343 Wis. 2d 569, 819 N.W.2d 841. The determination of how much investigation
should have been done prior to filing suit is a question that is within the
circuit court’s discretion. Donohoo
v. Action Wisconsin Inc., 2008 WI 56, ¶34, 309 Wis. 2d 704, 750 N.W.2d
739. We will uphold a discretionary decision
where the court “‘examined the relevant facts, applied a proper standard of law
and, using a demonstrated rational process, reached a conclusion that a
reasonable judge could reach.’” Id.
(quoted source omitted).
¶7 Prior
to filing the summons and petition for writ of certiorari in this case on
February 7, 2011, Griswold filed a complaint in Dane County Circuit Court case
no. 2009CV1034 challenging the 2008 assessment of the same Highway J property
at issue in the instant case. On April
16, 2009, the circuit court orally dismissed his complaint on the basis that
Griswold lacked standing, and subsequently entered judgment against Griswold. This court affirmed that decision in an
opinion dated November 29, 2010, in appeal no. 2009AP1599. Also prior to filing the petition in this
case, Griswold had filed a complaint in Dane County case no. 2010CV3552 challenging
the 2009 assessment of the same property. In an order dated November 1, 2010, the
circuit court dismissed the action, again concluding that Griswold did not have
standing as a taxpayer because he did not have an ownership interest in the
property.[2] Considering the adverse rulings that already had
been entered against Griswold with respect to the same property by the time he
filed the petition in this matter, we are satisfied that the circuit court properly
exercised its discretion in concluding that the petition was frivolous and that
sanctions were warranted.
¶8 We
also are satisfied that the circuit court properly exercised its discretion
when it determined that the appropriate type of sanction to impose was an order
limiting future filings by Griswold on the same issues already litigated with
respect to the Highway J property. A
circuit court has the authority, under Wis.
Stat. § 802.05(3)(b), to issue sanctions in the form of directives
of a nonmonetary nature, so long as the sanctions are “limited to what is
sufficient to deter repetition” of the conduct for which the sanctions are
being issued. Id. In this case, the limitation on future
filings by Griswold was narrowly tailored to strike a balance among Griswold’s
interest in access to the courts, the respondents’ interest in the respondents
having claim preclusion applied to limit repetitive litigation, the taxpayers’
right not to have frivolous litigation become an unwarranted drain on their
resources, and the public’s interest in maintaining the integrity of the
judicial system. See Minniecheske v. Griesbach, 161 Wis. 2d 743, 749, 468 N.W.2d
760 (Ct. App. 1991).
¶9 Finally,
we will address the respondents’ motion for sanctions. The respondents request that we find this
appeal frivolous under Wis. Stat. Rule 809.25(3)
and enter an order awarding the respondents their attorney fees and costs. The respondents further request that we enter
an order barring Griswold from suing any of the respondents unless he has an
attorney representing him who signs the pleadings.
¶10 Wisconsin Stat. Rule 809.25(3)
states that, if an appeal is found to be frivolous by this court, “the court
shall award to the successful party costs, fees, and reasonable attorney fees
under this section.” Upon appeal from a
ruling of frivolousness, we need not determine whether the appeal itself is
frivolous before awarding appellate costs and reasonable attorney fees. Riley v. Isaacson, 156 Wis. 2d 249,
262, 456 N.W.2d 619 (Ct. App. 1990).
Rather, if the claim was correctly adjudged by the circuit court to be
frivolous, it is frivolous per se on appeal.
Id. There is no
question, then, that Griswold’s appeal of the circuit court’s ruling of
frivolousness was also frivolous.
¶11 However,
we award costs and attorney fees only when we deem an appeal to be frivolous in
its entirety. State ex rel.
Robinson v. Town of Bristol, 2003 WI App 97, ¶54, 264 Wis. 2d 318, 667 N.W.2d
14. We look, then, to whether Griswold’s
appeal encompasses any non-frivolous issues.
We conclude that it does not.
Other than Griswold’s arguments on the issue of sanctions, which
encompass his underlying, meritless arguments about standing, the only other
issue coherently argued by Griswold on appeal is whether Judge Albert properly
denied Griswold’s recusal request. As
discussed above, this argument is without merit, given this court’s limited
scope of review as to a recusal decision of a circuit court judge. See American TV, 151 Wis. 2d at 183-84. Asking this court to adopt arguments rejected
by the circuit court without fulfilling the standard of review is generally
considered frivolous. See Lessor
v. Wangelin, 221 Wis. 2d 659, 669, 586 N.W.2d 1 (Ct. App. 1998). We conclude that that is the case here and,
accordingly, will grant the respondents’ request for costs and reasonable
attorney fees, and remand for a determination of such.
¶12 With
respect to the respondents’ request that we bar Griswold from suing any of the
respondents unless he has an attorney representing him, we note that the
respondents have not supported their argument with any legal authority
indicating that such a limitation would be appropriate here. In addition, we believe that the limitations
on future filings specified in the circuit court’s order dated February 14,
2012, which we now affirm, accomplish a similar deterrent purpose. Therefore, we decline to enter an order
imposing further limitations on Griswold’s filings.
Conclusion
¶13 To
summarize, we affirm the orders of the circuit court and conclude that the
respondents are entitled to their costs and reasonable attorney fees on appeal,
pursuant to Wis. Stat. Rule 809.25(3),
and we remand to the circuit court to determine the proper amount. See Lessor, 221 Wis. 2d at 669.
By the Court.—Orders affirmed and cause
remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.