COURT OF APPEALS DECISION DATED AND RELEASED July 17, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0868
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
DAVID G. AUL and
ROLLING GREEN COUNTRY
ESTATES, INC.,
a Wisconsin
corporation,
Plaintiffs-Respondents,
v.
CHARLES L. MURRAY,
Defendant-Appellant,
WILLIAM SEKERES,
B.E.S.P. CORPORATION
and
ALL OTHER PERSONS
UNKNOWN
WHO CLAIM ANY RIGHT,
TITLE,
ESTATE, LIEN OR
INTEREST IN
THE REAL PROPERTY
DESCRIBED
IN THE COMPLAINT,
ADVERSE TO
PLAINTIFF'S OWNERSHIP,
OR ANY
CLAIM UPON PLAINTIFF'S
TITLE
THERETO,
Defendants.
APPEAL from a judgment
of the circuit court for Walworth County:
JOHN R. RACE, Judge. Affirmed
and cause remanded with directions.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
PER
CURIAM. Charles L. Murray appeals from a judgment declaring
that he has no interest in real estate owned by David G. Aul and Rolling Green
Country Estates, Inc. The sole issue on
appeal is whether Circuit Court Judge John R. Race had a duty to disqualify
himself sua sponte because he acted as counsel to Kathryn Murray in a
divorce action. We affirm the judgment
and remand to the trial court for a determination of attorney's fees and costs
for a frivolous appeal.
Aul's and Rolling
Green's chain of title to the property is dependent on the interests acquired
by the execution of default judgments obtained by Isabelle and Alvin Nettesheim
against Charles Murray, Kathryn Murray and B.E.S.P. Corporation in actions
commenced in 1982. The default
judgments were taken at a time when Charles and Kathryn were divorcing. Judge Race was Kathryn's attorney in the
divorce action. Kathryn was named as a
party to this suit but was dismissed upon execution of a quitclaim deed.
Murray argues that upon
reading the pleadings in this action, Judge Race should have realized that he
was a material witness to the validity of the Nettesheim judgments and should
have sua sponte disqualified himself under § 757.19(2)(b) and (4), Stats.
However, a reading of the pleadings does not lead to the conclusion
Murray asserts. Indeed, in his answer
to the complaint, Murray denied that the actions in which the default judgments
were taken had any relevancy or application in this quiet title action. There was no indication in the answer that
the validity of the default judgments was at issue in this action. Judge Race could not have been put on notice
by the pleadings that the validity of the judgments was challenged or that his
prior representation of Kathryn would require him to give evidence in this
matter.
The record reflects that
the issue of asking Judge Race to recuse himself arose early in the
action. Judge Race followed the
procedure outlined in City of Edgerton v. General Casualty Co.,
190 Wis.2d 510, 517-19, 527 N.W.2d 305, 307‑08, cert. denied, 115
S. Ct. 1360, and cert. denied sub nom. Edgerton Sand & Gravel,
Inc. v. General Casualty Co., 115 S. Ct. 2615 (1995), by making a
declaration of the potential conflict of interest and inviting the parties to
move for recusal with facts bearing on the potential conflict. Murray did not act within the sixty-day
window of opportunity the trial court provided him. Murray waived any objection to having Judge Race preside over the
case. See id. at
519, 527 N.W.2d at 308.
Subsequently, when the
matter came before the court on Aul's motion for summary judgment, the court
considered Murray's pro se motion for judicial substitution. The judge reiterated the circumstances of
his representation of Kathryn Murray and that it did not involve this
case. Murray failed to present any
objective evidence that any of the grounds for mandatory disqualification under
§ 757.19(2)(a) through (f), Stats.,
existed. See City of
Edgerton, 190 Wis.2d at 521, 527 N.W.2d at 309 (need for objective
factual basis to support mandatory disqualification). Once again he did not present anything to suggest that the
validity of the Nettesheim judgments was in question.
On appeal, counsel for
Murray suggests that because Murray was proceeding pro se at the time of the
summary judgment hearing, he should be forgiven for failing to make a timely
objection and the evidentiary shortfall.
While pro se litigants in some circumstances deserve some leniency with
regard to waiver of rights, the rule applies only to pro se prisoners. Waushara County v. Graf, 166
Wis.2d 442, 451, 480 N.W.2d 16, 19, cert. denied, 506 U.S. 894
(1992). "While some leniency may
be allowed, neither a trial court nor a reviewing court has a duty to walk pro
se litigants through the procedural requirements or to point them to the
proper substantive law." Id.
at 452, 480 N.W.2d at 20. Murray's pro
se status does not excuse his waiver.
In his reply brief,
counsel for Murray contends that Murray should not be harmed by Judge Race's
apparent "memory lapse and unwillingness to listen at the final
hearing." Counsel's comment is
unnecessarily disparaging, particularly when the record indicates that Murray
was given adequate opportunity to assert his claim that Judge Race was
disqualified from acting. We caution
counsel to be circumspect in the future.
We conclude that there
was no basis from which Judge Race could have determined that the validity of
the Nettesheim judgments was challenged and that he would be a material witness
in that event. Judge Race was not
required to disqualify himself. We now
turn to Aul's motion to have the appeal declared frivolous.
We decide as a matter of
law whether an appeal is frivolous under Rule
809.25(3), Stats. NBZ, Inc. v. Pilarski, 185
Wis.2d 827, 841, 520 N.W.2d 93, 98 (Ct. App. 1994). An objective standard is employed in determining whether an
action is frivolous. See Sommer
v. Carr, 99 Wis.2d 789, 797, 299 N.W.2d 856, 860 (1981). The inquiry is not "whether a party can
or will prevail, but rather is that party's position so indefensible that it is
frivolous and should that party or its attorney have known it." Id. at 797, 299 N.W.2d at
859.
Without hesitation we
conclude that the appeal was frivolous.
The sole issue presented was the judge's obligation to disqualify
himself, but Murray had completely failed to offer a timely objection or proof
on the issue below. Moreover, the
ground asserted for disqualification was a nonissue in this case. Murray's position on appeal is indefensible
and does not suggest any basis in law.
We remand to the trial court with directions to undertake the necessary
fact finding to make an award of attorney's fees and costs occasioned by the
frivolous appeal.
By the Court.—Judgment
affirmed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.