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COURT OF APPEALS
DECISION
DATED AND FILED
May 11, 2011
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 WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT II
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In re the finding of contempt in
In re the Estate of William R.
Cape:
The Estate of William
R. Cape,
deceased, by and through
Frederick
A. Cape
and Sina A. Downs, the Successor
Co-Personal Representatives of the Estate, and Sina A.
Downs,
Plaintiffs-Respondents,
v.
Christopher
C. Cape,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Racine County: emily
s. mueller, Judge. Affirmed.
¶1 BROWN, C.J. Christopher
C. Cape appeals from a judgment and
order finding him in contempt of court and assessing attorney fees, costs and
interest. The trial court found that,
despite a clear order by the court to promptly execute and deliver certain
documents so that 110.806 acres of land could be partitioned, Cape
continuously engaged in unwarranted delay.
His appeal can aptly be described as nothing more than an attempt to
retry the facts before this court. We
decline to do so. Our standard of review
is clear. The trial court’s findings of
facts will not be overturned unless they are clearly erroneous. Noll v. Dimiceli’s Inc.,
115 Wis. 2d
641, 643, 340 N.W.2d 575 (Ct. App. 1983). The findings here are not clearly erroneous. Having found the historical facts, we hold
that the trial court then properly applied the facts to Wisconsin
law. We affirm.
¶2 Our recitation of the facts comes directly from the record
and the trial court’s findings. The
trial court’s partition order of December 15, 2008, specifically required that
the parties
shall promptly execute and deliver to Tri City their
respective copy of the Commitment Letters dated December 9, 2008 … and the
parties shall otherwise execute and deliver such other documents and take such other
further actions as are necessary or appropriate to consummate their respective
parts of the transaction contemplated by the Proposal Letter and said
Commitment Letters.
¶3 Cape did not promptly sign
and deliver that commitment letter. He
admitted it. That was not the issue. The issue recognized by the trial court was
whether the conduct was intentional and contemptuous. Cape
contended that it was not. He claimed
that the only reason why he did not sign the commitment letters was that he had
no idea that the letters required his wife to personally guarantee a loan. He claims that all he was trying to do was to
get his wife removed from such involvement and that a delay for this purpose
was not only justified, but necessary.
¶4 The trial court did not find his story to be credible. It noted that its order referenced the
commitment letter of December 9. The
commitment letter was therefore incorporated by reference in the order and the
letter explicitly required his wife to sign the guarantee. The trial court also found that a witness who
was a bank official personally communicated this requirement to Cape before he issued the commitment letter. The trial court found this bank official’s
testimony to be credible. Cape knew of the requirement before the entry of the judgment. Cape also
knew that his wife would have to sign a second mortgage on their home, but he took
no steps to involve her in that transaction prior to the failed closing of
March 19, 2009. His wife’s deposition bears this out. The trial court additionally found that Cape
made no meaningful effort to close the transaction, that the refinance
transaction did not close for over a year, that Cape would not have closed at
all but for the contempt motion and that his actions were intentional and
willful.
¶5 Cape regurgitates his own
account of the historical facts and asks this court to accept his version
rather than the facts found by the trial court.
We will not spend our time recounting his specific factual disagreements.
The trial court explicitly made
credibility findings and found facts that are supported by the record. Thus, the findings are not clearly erroneous. That is all we need to say.
¶6 Cape complains that the
trial court erred in defining the contempt standard as “intentional and willful
disobedience” rather than “intentional disobedience.” He asserts that “willful” invokes a higher
standard of proof than “intentional.”
This is a curious argument because assuming that Cape
is correct, it inures to his benefit since the evidence had to show not only
that his conduct was intentional, but also willful. How such benefit harmed him, we do not begin
to speculate. But regardless, there is plenty
of evidence from which a trier of fact could conclude that Cape’s
conduct was intentional, but also willful.
We need say no more about the issue.
¶7 Cape argues that, because he
eventually went through with the closing, he was no longer in contempt when the
court hearing ensued. He relies on Christensen
v. Sullivan, 2009 WI 87, ¶54, 320 Wis. 2d 76, 768 N.W.2d 798, for
the proposition that the contempt must be ongoing or continuing and “cannot be
imposed if for any reason the contempt has ceased.” (Emphasis omitted.) But we hold that the trial court properly
relied on Frisch v. Henrichs, 2007 WI 102, 304 Wis. 2d 1, 736 N.W.2d 85. The trial court in this case held that
timeliness was an essential part of the court’s order and that Cape’s intentional foot-dragging would have continued but
for the contempt motion. See id.,
¶¶4, 47 (When timeliness is an “essential element of the court’s order,” a
party is not relieved of its contempt by late compliance when it causes
damage.).
¶8 A party cannot stick up his or her nose at a trial court
order and then try to escape a contempt finding by complying at the eleventh
hour. See id. That is precisely what Cape was doing here.
Thus, this case is nothing like Christensen where the complainants
conceded that Milwaukee county had been in
compliance with an order to address overcrowding conditions and poor medical
services in the Milwaukee
county jail for several months prior. See Christensen,
320 Wis. 2d
76, ¶¶5, 74. In other words, in that
case, the contemptuous conduct ceased quite apart from the contempt action,
whereas here, the contempt action is what caused the contemptuous action to cease. This is a Frisch case.
¶9 Finally, Cape objects to the
award of attorney fees and an award of unpaid interest on the estate’s unpaid
real estate taxes. We need say no more
other than that the record amply supports those awards.
By the Court.—Judgment and order
affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)4.