986 N.W.2d 338
Wis. Ct. App.2023Background:
- Divorce case: Ouellette claimed she and her ex-husband bought real property from Elisabeth and Samuel Thompson via an oral land contract; circuit court found she had not proved material terms (price and interest) and dismissed the Thompsons from the action.
- Ouellette appealed, raising three issues: (1) sufficiency of evidence to prove a land contract (primary issue); (2) procedural claim that the trial court cut off rebuttal evidence; (3) claim that the Thompsons were wrongly dismissed from the divorce proceeding.
- The Thompsons moved (with their respondents’ brief) for sanctions, costs, and attorney fees under Wis. Stat. Rule 809.25(3)(a), arguing Ouellette’s appeal was frivolous; they did not cite Wis. Stat. § 895.044 originally.
- A prior panel affirmed dismissal on all three issues but denied sanctions under the long-standing “entire appeal is frivolous” standard (Howell/Baumeister), finding the primary issue was not frivolous though the procedural issues were weak.
- On reconsideration the Thompsons argued § 895.044(5) (enacted 2011) changed the standard: an appeal is frivolous in its entirety if any element necessary to succeed is supported solely by frivolous argument; they sought attorney fees under § 895.044(5).
- The Court of Appeals declined reconsideration: it interpreted § 895.044(5) as retaining the requirement that the entire appeal be frivolous but abrogating Baumeister’s narrower articulation (¶27) — i.e., sanctions are appropriate when an element, issue, or argument necessary to obtain relief is supported solely by frivolous argument. Applying that standard, the court held Ouellette’s primary issue was not frivolous and the frivolous procedural claims were not necessary to succeed, so no fees awarded.
Issues:
| Issue | Plaintiff's Argument (Thompsons) | Defendant's Argument (Ouellette) | Held |
|---|---|---|---|
| Whether Wis. Stat. § 895.044(5) abrogated the judicial “entire appeal” standard (Howell/Baumeister) and makes fees mandatory if any element necessary to succeed is supported only by frivolous argument | § 895.044(5) makes an appeal frivolous in its entirety if any single element necessary to prevail is supported solely by frivolous argument; thus fees are mandatory in that situation | § 895.044(5) does not eliminate the entire-appeal requirement; “any element necessary to succeed” must be read in context and means elements/issues necessary to secure relief for the appeal as a whole | § 895.044(5) retains the requirement that the entire appeal be frivolous but abrogates Baumeister ¶27’s command that every argument must be frivolous; an appeal is frivolous in its entirety when an element/issue/argument necessary to obtain relief is supported solely by frivolous argument |
| Whether Ouellette’s primary substantive land-contract claim was frivolous | The land-contract arguments were weak and could be deemed frivolous | The primary issue had a reasonable basis in law and fact (testimony and documents supporting material terms) | Court: Primary issue was not frivolous; arguments had a reasonable basis, so no sanctions on this ground |
| Whether the procedural claims (premature ruling, dismissal from divorce proceeding) were frivolous and, if so, whether they made the whole appeal frivolous | Procedural claims were frivolous and support a fees award | Procedural claims were frivolous but not necessary for overall success; other non-frivolous arguments existed | Court: Procedural issues were frivolous but not necessary to succeed on appeal; they do not make the entire appeal frivolous |
| Whether the Thompsons forfeited reliance on § 895.044(5) by not citing it in their original sanctions motion | No forfeiture; they adequately preserved the sanctions claim by timely motion under Rule 809.25(3) | The absence of a citation to § 895.044(5) could be forfeiture; but court may excuse forfeiture | Court declined to find forfeiture on procedural grounds and resolved the statutory question on the merits given its statewide importance, while noting they might have forfeited absent that discretion |
Key Cases Cited
- Howell v. Denomie, 282 Wis. 2d 130 (2005) (reaffirmed that courts historically require the entire appeal be frivolous to impose sanctions under Rule 809.25(3))
- Baumeister v. Automated Products, Inc., 277 Wis. 2d 21 (2004) (articulated an "every argument must be frivolous" application of the entire-appeal standard in ¶27)
- Fuchsgruber v. Custom Accessories, Inc., 244 Wis. 2d 758 (2001) (statutory abrogation of common law requires clear, unambiguous language)
- Kalal v. Circuit Court for Dane County, 271 Wis. 2d 633 (2004) (canons of statutory construction: give each word meaning and construe statutes to harmonize)
- Nichols v. Bennett, 190 Wis. 2d 360 (1994) (earlier authority holding appellate sanctions require the entire appeal be frivolous)