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COURT OF APPEALS
DECISION
DATED AND FILED
January 21, 2009
David
R. Schanker
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 the matter of the award of frivolous costs in
In re the Marriage of:
Heidi Marie Graef,
Petitioner-Respondent,
v.
Chadwick Timothy Graef,
Respondent,
Christopher S. Carson,
Appellant.
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APPEAL
from an order of the circuit court for Racine County: Allan
B. Torhorst, Judge. Affirmed.
Before Anderson,
P.J., Snyder and Neubauer, JJ.
¶1 PER CURIAM. This is Attorney Christopher S.
Carson’s second appeal of costs and attorney fees arising out of an underlying
divorce action. He appeals the amount awarded
on remand after his first appeal. We
decline to find this appeal frivolous, but affirm the order and order Carson to desist from
filing any further appeals in this matter until he has paid all outstanding
amounts in full.
¶2 Carson
represented respondent Chadwick Graef in a 2006 divorce action. Attorney Amy Zott represented the petitioner,
Heidi Graef. In May 2006, the circuit
court, the Honorable Allan B. Torhorst presiding, sanctioned Carson under Wis. Stat. § 802.05 (2005-06)
for a frivolous filing and ordered him to pay $954.14. We summarily affirmed the award, determined
the appeal itself was frivolous and remanded for a determination of costs and
reasonable attorney fees for filing a frivolous appeal. See
Wis. Stat. Rule 809.25(3).
¶3 On remand, the circuit court, Judge Torhorst again presiding,
conducted an evidentiary hearing. Carson cross-examined Zott
at length about her billing entries, and the court received five exhibits and
retained Zott’s file for review. In a
written decision, the court ordered Carson
to pay $8,472.07 in addition to the previously ordered $954.14. Carson
appeals the new amount, contending the court “applied an improper legal
standard [and] approved many patently and outrageously unreasonable fee entries
[which] stemmed from an improper motive by Ms. Zott.” He requests a new hearing “in the interests
of justice.”
¶4 Carson’s
opening salvo criticizes Judge Torhorst for holding that “as a matter of law,
he had no discretion” to award the attorney fees Zott sought. Carson
takes the court’s comment out of context.
The court actually stated:
[Wisconsin Stat.] Rule 809.25(3) is mandatory
with regards to the successful party being awarded costs, fees and reasonable
attorney’s fees against a party upon whose appeal is found frivolous. The duty of the circuit court is to award such
reasonable attorney’s fees, costs and fees; the circuit court has no discretion
if the Court of Appeals finds the appeal to be frivolous. This is the case in this proceeding.
Section 809.25(3)(a) provides that if an appeal is found to be frivolous, the court “shall award to
the successful party costs, fees, and reasonable attorney fees under this
section.” Judge Torhorst
accurately stated the law.
¶5 Carson then contends that,
under Jandrt v. Jerome Foods, Inc., 227 Wis. 2d 531, 577, 597 N.W.2d 744 (1999), a
court may take equitable principles into account when awarding fees and
expenses. Carson’s reliance on Jandrt’s general language
is misplaced. Equity may give the court
power to achieve a fair result in the absence of or in conjunction with a
statute, but it does not allow a court to ignore a statutory mandate. See GMAC Mortgage Corp.
v. Gisvold, 215 Wis.
2d 459, 480, 572 N.W.2d 466 (1998). The
circuit court was correct when it stated that the plain language of Wis. Stat. Rule 809.25 obliged it to
award costs and reasonable fees. Moreover,
we are not persuaded that financial obligations incurred as a result of
voluntarily pursuing a frivolous appeal come under the rubric of “equitable
principles.”
¶6 Carson
next asserts that the circuit court erred in finding Zott’s claimed fees
reasonable. Our review of a circuit court’s determination of the value
of attorney fees is limited to determining whether the court properly exercised
its discretion. Village
of Shorewood v. Steinberg, 174 Wis. 2d 191, 204, 496
N.W.2d 57 (1993). A
circuit court properly exercises its discretion if it “employs a logical
rationale based on the appropriate legal principles and facts of record.” Id. (citation omitted). Carson
lobbies for a de novo review, however, because Judge Torhorst did not preside
over the underlying divorce action. The
divorce action is not at issue on this matter.
Rather, it is the costs and fees Zott incurred in litigating the
frivolous appeal. See Puchner v. Hepperla, 2001 WI App 50, ¶6, 241 Wis. 2d 545, 625 N.W.2d 609 (per curiam). Judge Torhorst was integrally involved in the
case from early on, allowing him to observe the quality of the services
rendered. See Standard Theatres, Inc. v. DOT, 118 Wis. 2d 730, 747, 349 N.W.2d 661 (1984). The deferential standard is appropriate here.
¶7 Carson
undertakes a nearly line-by-line challenge, heavy with sarcasm, to the fees and
costs Zott submitted. He also assails
the “overnight doubling” of Zott’s requested fees, spurred, he asserts by the
“fiendishly improper motive” of desiring to punish him. Zott testified that the first amount she
submitted was a summary billing statement because she did not want to expend
more time on the file. When Carson challenged that
amount, however, and suggested she was being untruthful, she went through the
file, itemized her billings and prepared a statement of her actual costs and
fees. Zott provided the file to the
court.
¶8 The circuit court reviewed the exhibits that
illustrated Zott’s itemized claim and considered her testimony and the cross-examination
by Carson. Zott conceded a 5.7-hour reduction in time on
one matter and the court found the remainder of her requests to be reasonable
in light of prevailing rates in the area.
It also allowed Zott’s full rate for travel time because such time can
be used to contemplate arguments and strategy. Carson
chastises the circuit court for its “scant commentary” on the reasonableness of
Zott’s fees. We deem the court’s clear
and concise explanation of its reasons
for the fee award to be sufficient. See Southeast
Wis. Prof’l Baseball Park Dist. v. Mitsubishi Heavy Indus. America, Inc., 2007 WI App 185, ¶54, 304 Wis. 2d 637, 738
N.W.2d 87 (citations omitted). We
see no erroneous exercise of discretion.
¶9 Finally, Carson contends a new hearing on costs and
fees is warranted in the interests of justice.
See Wis. Stat. § 752.35.
He claims justice miscarried because the circuit court misconstrued the
arguments he intended to make and failed to consider his “financially
straightened [sic] circumstances.” Carson
called no witnesses and was not sworn in himself. Zott presented exhibits and gave sworn
testimony. Carson’s position seems to be that the
circuit court should have believed him and accepted his arguments over Zott and
her evidence. First, this is not a
proper basis for granting a new trial.
Second, we defer to the circuit court’s credibility determinations
unless they are clearly erroneous. Wis. Stat. § 805.17(2). They are not.
¶10 Respondent Heidi Graef asks that we find this appeal
frivolous. We may not do so, however, unless the entire appeal is
frivolous. See Baumeister v. Automated Prods., Inc., 2004 WI 148, ¶26, 277 Wis. 2d 21, 690 N.W.2d
1. We conclude that Carson’s challenge to the
reasonableness of certain of Zott’s fees falls short of being frivolous.
¶11 As a final matter, we are compelled to note that Carson’s fervor too
frequently strays into vitriol. His
vituperative language shows disrespect to opposing counsel, the circuit court
and to this court. We do not know if he
is too close to this particular case or if this is his usual approach. Whichever, we strongly advise that he
moderate his tone and adopt a demeanor more befitting an officer of the
court. Continuing in this manner will
not be tolerated.
¶12 We therefore order that Carson
refrain from filing any further appeals in this matter until all outstanding
amounts are paid in full. “[W]hile
persons have a constitutional right to access to the courts, that right is
neither absolute nor unconditional.” Village
of Tigerton v. Minniecheske, 211 Wis.
2d 777, 785, 565 N.W.2d 586 (Ct. App. 1997) (citation omitted). Barring Carson
from involving Zott or Heidi in litigation until the sanction is paid promotes
the efficient functioning of the courts and is narrowly tailored to deter Carson from pursuing
frivolous litigation. See id. at 785-86; see Puchner, 241 Wis.
2d 545, ¶9. The clerk of this court is
instructed to return unfiled any document Carson
submits relating to any matter arising from, relating to or involving case
number 2006FA338. The clerk of this
court will resume accepting Carson’s documents
for filing if the documents are accompanied by an order of the circuit court
indicating that Carson
has paid the costs, fees and reasonable attorney fees awarded by the circuit
court.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.