Minniecheske v. Griesbach

Mar 19, 1991

90-1635

Versions:468 N.W.2d 760

161 Wis. 2d 743

1991 Wisc. App. LEXIS 303

LaROCQUE, J.

Merlin and Willa Griesbach appeal an order that (1) a judgment be entered in favor of Valley Northern Bank for $2,905.06 attorney fees in accordance with sеc. 809.25, Stats, (frivolous appeal), and (2) until such time as the fees are paid, the Gries-bachs may not, without leave of the trial court, file any civil actions or motions in the circuit court against the bank relating to the issues or facts of a previous foreclosure judgment. We reject the arguments that the trial cоurt abused its discretion and exceeded its authority and affirm. 1

This appeal caps more than five years of numerous pleadings, motions and appеals by the Griesbachs based on the same facts and issues. Initially, in 1985, the bank filed a foreclosure action against them. Thereafter, during sixteen months of discovery, the Griesbachs filed three last minute petitions in federal court, all of which were quickly dismissed, and failed to appear at several scheduled deрositions and a hearing on sanctions. After imposing a lesser sanction that the Griesbachs ignored, the trial court ultimately struck their answer and granted judgment to the bank. On a prior appeal, we upheld the foreclosure judgment and concluded that the appeal was frivolous because none of thе issues raised had any reasonable basis in law or equity. Valley Northern Bank v. Griesbach, No. 86-2096 unpublished slip op. (Wis. Ct. App. Aug. 11, 1987).

After a sheriffs sale of the property and a trial court order confirming that sale, the Griesbachs filed a petition ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for a writ of prohibition or a writ of mandamus challenging the order and writ of assistance. We denied the petition. Minniecheske v. Griesbach, No. 89-0616 unpublished slip op. (Wis. Ct. App. Apr. 17, 1990). The Griesbachs then filed a motion in the trial court to vacate the judgment of foreclosure, sale and writ of assistance. The trial court denied this motion "finding that the issues raised . . . are for the most part issues previously considered by this Court and the Court of appeals

Meanwhile, the owners оf the foreclosed property upon which the Griesbachs had resided brought suit against the Griesbachs. The Griesbachs filed a third-party complaint against Vаlley Northern Bank, again alleging arguments relating to the foreclosure and sale. 2

The Griesbachs filed various motions, most of which repeated arguments and issues previously adjudicated. Eventually the trial court dismissed the Gries-bachs' third-party complaint against the bank and cautioned that "further attempts to replead the same allegations may well be so considered [frivolous] . .

The Griesbachs appealed, and we affirmed. Id. We further concluded that the appeal was frivolous and remanded for a dеtermination of reasonable attorney fees pursuant to sec. 809.25(3)(c), Stats., stating that the Griesbachs' "incessant challenges to the propriety of the foreclosure judgment . . . [are] nothing more than a stubborn refusal to accept the earlier valid judgments, orders, and opinions of the courts . . Minniecheske, No. 89-0616 at 8.

On remand, the trial court issued the order from which the Griеsbachs are currently appealing. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍The order awards $2,905.06 for reasonable attorney fees to the bank and further orders:

Until the total amount of the judgmеnt of $2,905.06 is paid . . . [the] Griesbach[s] . . . may not file any civil action or begin any other proceeding or file any other motions or papers in the circuit cоurt seeking any relief against Valley Bank, its employees or agents relating in any way to issues arising out of the mortgage or those other facts which were thе subject of a foreclosure action . . . Case No. 85-CV-445 or 85-CV-445R, without leave of court. In seeking leave of court, the . . . parties must identify all the claims . . . and must certify that they are new claims never before raised and disposed of on the merits by any court. Upon a failure to certify or upon a false certification, the party seeking such relief may be found in contempt of court and punished accordingly. No further proceedings shall take place in Outagamie County Circuit Court, nor shall any other filings be accepted, until the court has . . . determine [d] whether the action the party proposes to bring presents a colorable claim.

Despite the order, the Griesbachs again filed motions challenging the original foreclosure action. The trial cоurt returned the documents to the Griesbachs and suggested that they comply with the trial court order while awaiting this decision.

The question of validity of the trial court's оrder is a case of first impression in Wisconsin. We are, however, persuaded by several federal decisions dealing with this same issue and accordingly affirm the trial court order. We review the issuance of the order under an abuse of discretion standard. In re Packer Ave. Assocs., 884 F.2d 745, 747 (3d Cir. 1989).

The purpose of the frivolous claims and appeals statutes 3 is "to deter . . . litigants . . . from commencing or continuing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍frivolous actions and to punish those who do." Stoll v. Adriansen, 122 Wis. 2d 503, 511, 362 N.W.2d 182, 187 (Ct. App. 1984). Without an order prohibiting future filings related to the same issues, these statutes would be virtually useless against a pro se party who cannot pay. See Lysiak v. Commissioner, 816 F.2d 311, 312-13 (7th Cir. 1987). "A court faced with a litigant engaged in a pattern of frivolous litigation has the authority to implement a remedy that may include restrictions on that litigant's access to the court." Id. at 313.

In In re Green, 669 F.2d 779 (D.C. Cir. 1981), a prisoner had filed between 600 and 700 complaints in state and federal court realleging the same clаims. The court issued an order that Green may not file any civil action without leave of the court and must certify that the claims alleged have never been raised and disposed of before, or Green will be held in contempt. Id. at 787. This order was designed to curb Green's abuse while observing his right to access the courts. Id. at 781.

The courts that have considered similar orders have emphasized ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that they should be narrowly tailored and rarely issued. See id. at 784; In re Oliver, 682 F.2d 443, 445 (3d Cir. 1982); In re Martin-Trigona, 763 F.2d 140, 141-42 (2d Cir.), cert. denied, 474 U.S. 1061 (1985). We cannot unduly deny a party access to the judicial system. See Littmann v. Littmann, 57 Wis. 2d 238, 250, 203 N.W.2d 901, 907 (1973) (civil "plaintiff has a legitimate right of access to the Wisconsin courts"); see also Bounds v. Smith, 430 U.S. 817, 821 (1977) (prisoners have a constitutional right of access to the courts).

This order is drafted narrowly enough to strike a balance among the Griesbachs' access to the courts, the bank's interest in res judicata, the taxpayers' right not to have frivolous litigation become an unwarranted drain on their resources and the public interest in maintaining the integrity of the judicial system. See Packer Ave. Assocs., 884 F.2d at 748; see also Stoll, 122 Wis. 2d at 511, 362 N.W.2d at 187.

Because we conclude that the trial court properly exercised its discretion by issuing the order, we also reject the Griesbachs' argument that justice has miscarried and decline to reverse the order pursuant to seс. 752.35, Stats.

By the Court. — Order affirmed.

Notes

The Griesbachs only implicitly raise the issue of whether the award of attorney fees was proper, but make no arguments on the issue. Their brief addresses only ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the restrictions on their right to file. We therefore summarily affirm the trial court's order for $2,905.06 attorney fees pursuant to sec. 809.25(3), Stats. See In re Balkus, 128 Wis. 2d 246, 255 n.5, 381 N.W.2d 593, 598 n.5 (Ct. App. 1985).

These arguments include: The trial court did not lawfully exist at the time it entered the foreclosure judgment; the trial court lacked subject matter and personal jurisdiction; the bank forged Merlin Griesbach's signature on the mortgage renewal note; the trial judge presided over the foreclosure case without a "subscribed oath of office"; the Griesbachs were wrongly denied a homestead exemption; the sheriff sold the property for a price substantially lower than its value; and the bank did not have a valid lien against the Griesbachs.

Section 814.025(1), Stats., states:

If an action or special proceeding commenced or continued by a plaintiff or a counterсlaim, defense or cross complaint commenced, used or continued by a defendant is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party costs determined under s. 814.04 and reasonable attorney fees.

Section 809.25(3)(a), Stats., states: "If аn appeal or cross-appeal is found to be frivolous by the court, the court shall award to the successful party costs and fees under this section."