COURT OF APPEALS DECISION DATED AND FILED December 29, 2010 A.
John Voelker Acting 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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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT II |
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Ann Moore,
Plaintiff-Appellant, v. Mary Dougherty,
Defendant-Respondent. |
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APPEAL
from an order of the circuit court for
Before Brown, C.J., Neubauer, P.J., and
¶1 PER CURIAM. This appeal arises from Ann
Moore’s claimed future interest in a cottage owned by her mother, Mary
Dougherty.
¶2 Although Moore raises a narrow issue, some background is
necessary to put it in context. The
material facts are not in dispute. Robert
Dougherty and his sisters, Alice and Jane, each inherited a one-third interest
in a cottage on
¶3 As the Dougherty children each reached the age of eighteen, they were expected to contribute to the Dougherty family share of the duties. In exchange, they enjoyed unlimited free use of the cottage. According to the complaint, the siblings were promised that their contributions would result in an equal interest in the property through inheritance, other devise or sale of the property. Anyone could withdraw from this agreement by voluntarily abandoning his or her interest without reimbursement.
¶4 In August 2008,
¶5 After several family meetings, conflict developed between
Moore and her siblings. The corporation
idea was abandoned.
¶6
¶7 Dougherty moved for summary judgment, supported by
¶8 Dougherty also moved for sanctions against
¶9 The sanctions hearing was held nine weeks later. In the meantime,
MS. POULOS [
THE COURT: And what law supports that theory?
MS. POULOS: Constructive trust.
THE COURT: Why didn’t you allege that in the Complaint?
MS. POULOS: I do allege that.
THE COURT: Where?
MS. POULOS: Unjust enrichment and breach of a fiduciary duty, parent child relationship. It’s throughout my brief.
THE COURT: I don’t see anything about a constructive trust in the pleadings whatsoever unless I’m missing something. There is no words regarding—there is nothing here asking the Court—
MS. POULOS: Well, I—
THE COURT: Let me just point for the record.
MS. POULOS: All right.
THE COURT: There nothing in the relief being sought that seeks the imposition of a constructive trust.
MS. POULOS: There are two elements to constructive thrust. One is unjust enrichment which I pled and two, a confidential relationship of some kind.
THE COURT: Where do you plead unjust enrichment?
MS. POULOS: I didn’t bring my Complaint.
THE COURT: I can’t help you.
MS. LAFLEUR [Dougherty’s counsel]: There is one paragraph.
MS. POULOS: I pled unjust enrichment.
MS. LAFLEUR: There is one paragraph that’s pled unjust enrichment. They’re not set forth in separate paragraphs in the Complaint.
Your Honor, if I might clarify something. We served our sanction motion on October 4th of 2009. After serving that motion, which made it clear that we did not believe that there was a case either for purposes of sanctions or summary judgment, not one telephone call was made to ask me for any depositions in October or in advance of the summary judgment motion. Not one call was made to my office asking me to adjourn the motion to allow any discovery to take place.
THE COURT: All right. Any comment on that, Ms. Poulos?
MS. POULOS: Yes.
THE COURT: Is that true?
MS. POULOS: Yes.
THE COURT: Okay. I don’t know what else to do at this point in time. It was an opportunity, you’re never precluded from conducting discovery, that was in October. We’re in January. We’ve still at this point in time where there has been—there is no affidavit—even if it were somehow to change the Court’s opinion, there is nothing here to indicate that any effort has been made in support of the Plaintiff’s case by way of an affidavit or documents that would somehow bolster the argument that a reconsideration decision is appropriate here in favor of the Plaintiff.
That issue is now moot. We’re pas[t] all that and we’re now on to the issue of whether or not this is a sanctionable case.
¶10 The circuit court concluded that Moore had neither commenced nor maintained the case in good faith because she brought it without a proper understanding of the law and, despite ample notice and opportunity to right the boat, she continued sailing the same course and arguing the same facts, even providing the court with an unpublished opinion, ostensibly to demonstrate that she had done legal research.
¶11 Dougherty requested $11,000 in costs and attorneys’ fees she
claimed she incurred in defending the frivolous lawsuit.
¶12 Dougherty’s counsel submitted an affidavit documenting the work performed and corresponding fees charged. Moore objected on the basis that the sanctions statute is meant to deter, not compensate; that the court awarded actual attorney fees without considering other options, explaining the offending conduct or making a finding that the litigation was frivolous or brought for an improper purpose; that the bills in the fee request were insufficiently supported and their reasonableness and necessity were unsubstantiated.[3]
¶13 The court denied
¶14
¶15 With respect to whether an action was maintained frivolously,
what an attorney knew or should have known is a question of fact. Storms, 309
¶16 An attorney who files and advocates a pleading is certifying that, to the best of his or her knowledge, information and belief formed after an inquiry reasonable under the circumstances, the filing is not for an improper purpose, such as to harass; the legal contentions are warranted by either existing law or a nonfrivolous argument for a change in it; and the allegations either have or, after investigation, are likely to have evidentiary support. See Wis. Stat. § 802.05(2)(a)-(c).
¶17 As the circuit court noted,
¶18 The question is not whether constructive trust might have been
a viable theory and remedy but whether it was pled. The complaint failed to allege its
elements.
¶19
¶20 Besides the wanting complaint,
1. State each and every fact on which you base your allegation in ¶12 [of the complaint] that Plaintiff was legally obligated to contribute to the upkeep, maintenance and taxes of the cottage.
RESPONSE: In 1978 when I graduated from college and got my first job my father told me that I was obligated to contribute to the expenses associated with the cottage if I wanted to use it. This meant that the cottage would eventually be owned by those who contributed. If you did not pay you were not in on this deal. This was a family obligation.
Beyond any problems the Dead
Man’s statute might pose, there also is nothing here that presents any legally
cognizable claim. Yet
¶21 We finally turn to the focus of the appeal.
¶22 Moore argues that actual attorneys’ fees inappropriately exceed what is sufficient for deterrence of further or comparable conduct and do not reflect any consideration of alternative sanctions. See Wis. Stat. § 802.05(3)(b); see also Zuk v. Eastern Pa. Psychiatric Inst., 103 F.3d 294, 301 (3d Cir. 1996) (discussing Federal Rule of Civil Procedure 11, the federal analogue to § 802.05).
¶23 The court was aware that, before Moore ever filed her lawsuit, Dougherty’s
prior attorney had cautioned Moore that none of her information “even suggest[ed]
that [she] ha[d] a legally binding claim to an interest in the cottage or any
monetary compensation on any contract theory or on any legally recognized
equitable theory,” and that Moore had rejected Dougherty’s offer to reimburse
her the $9301 she had contributed over the years.
¶24
¶25 The affidavits counsel tendered here detail the time spent, the
work performed, the hourly rate requested, the basis for that hourly rate and
specifics of the costs incurred. The
circuit court, presided over by an experienced judge, supervised the handling
of this case from the beginning. It was
well-situated to evaluate the reasonableness and necessity of the services
provided, the quality of services provided, the attorneys’ expertise in this
area and local billing rates. See Standard Theatres, 118
¶26 As a final matter, Dougherty moved by separate motion for a
finding that
¶27 A claim correctly adjudged to be frivolous in the circuit court
is frivolous per se on appeal. Riley
v. Isaacson, 156
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless noted.
[2] The
record reflects that
[3]