City of Janesville v. Wiskia, 78-650

• Decision Date: 10 September 1980
• Docket Number: No. 78-650,78-650
• Citation: 293 N.W.2d 522,97 Wis.2d 473
• Parties: CITY OF JANESVILLE, Plaintiff-Respondent and Cross-Appellant, v. Jilleen WISKIA, Defendant-Appellant and Cross-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

Page 522

293 N.W.2d 522

97 Wis.2d 473

CITY OF JANESVILLE, Plaintiff-Respondent and Cross-Appellant, v. Jilleen WISKIA, Defendant-Appellant and Cross-Respondent-Petitioner.

No. 78-650.

Supreme Court of Wisconsin.

Argued June 3, 1980.

Decided June 27, 1980.

Reconsideration Denied Sept. 10, 1980. ^*

James A. Meier (argued), Janesville, for Jilleen Wiskia; Roy E. Berg and Berg & Meier, Janesville, on brief.

Berta S. Hoesly, City Atty., for the City of Janesville.

COFFEY, Justice.

This is an appeal of a decision of the court of appeals reversing a judgment of the circuit court holding that a prosecution for a violation of the Janesville City Code of Ordinances was frivolous and awarding attorney fees, pursuant to sec. 814.025, Stats. On appeal, the court of appeals ruled that the city of Janesville's prosecution was not frivolous and therefore the petitioner, Jilleen Wiskia, was not entitled to reimbursement for attorneys' fees and thus reversed the trial court's finding that the city attorney ". . . knew, or should have known, that the action . . . was without any reasonable basis in law or equity. . . ."

The record establishes that on December 30, 1975 the city of Janesville charged Jilleen Wiskia, a bartender at the Blarney Stone Tavern in Janesville, with a violation of sec. 22.16(1) ¹ of the Janesville Code of City Ordinances for serving an intoxicating beverage to one under the influence of liquor.

Jilleen Wiskia entered a plea of not guilty to the charge and requested a jury trial. The testimony introduced at trial recites that on the morning of November 30, 1975, prior to arriving at the Blarney Stone Tavern, Gilbert Bobzein consumed a pint of brandy with some beer. After arriving at the tavern, he had one or two more beers. While at the tavern, a customer named James Fullerton offered to "buy anybody a schooner of . . . wine who would chug it." Bobzein accepted the offer and Fullerton then purchased a bottle of wine from Wiskia. Fullerton then filled a schooner with wine and handed it to Bobzein who promptly drank it. He then poured another schooner of wine and Bobzein drank it also. At that point, Fullerton purchased a second bottle of wine and refilled Bobzein's glass. Fullerton stated that Bobzein ". . . drank about like half of it, and that's all that I saw him drink of that." However, Jilleen Wiskia testified that he drank the entire glass. Shortly thereafter, Bobzein fell off his bar stool to the floor and passed out. Fullerton and several others carried Bobzein to a car and he was driven to a friend's house where he died a short time later. Two police officers who investigated Bobzein's death testified that they had interviewed the bartender, Wiskia. The first officer, Bartz, testified that during the interview she stated that Bobzein "appeared slightly intoxicated" upon entering the tavern. Officer Olson testified that the bartender stated that she had sold wine to Fullerton but was aware of the fact that Bobzein was actually drinking it. At trial she denied making the statement to Patrolman Bartz that Bobzein "appeared slightly intoxicated." Further, she restricted the statement previously made to Officer Olson, stating that her knowledge of Bobzein drinking the wine, was based not on her own personal observation, but rather what she heard from other people in the tavern after the incident.

Following the testimony, the jury returned a verdict of not guilty and the court granted "the defendant's motion for judgment on the jury verdict." The petitioner, Wiskia, thereafter filed a motion requesting reimbursement from the city for costs and reasonable attorney's fees, pursuant to sec. 814.025, Stats. ² At a hearing on the defense motion for taxation of costs, Samuel Loizzo, a former assistant district attorney and city attorney, testified as an expert witness and stated that after reviewing the files, it was his opinion that there was "no basis for prosecution" in this case. He said that the city could not prove the two elements of the offense: (1) the sale; and (2) that the person who received the intoxicating liquor was under the influence of liquor.

Following the hearing, the trial court ruled that the city's action against Jilleen Wiskia was frivolous because the city or the city attorney ". . . knew, or should have known, that the action . . . was without any reasonable basis in law or equity. . . . ", pursuant to sec. 814.025(3)(b), Stats. ³ Based on this finding, the court ruled that she was entitled to reimbursement for attorneys' fees:

". . . consistent with the provisions of sec. 814.025, the Court will award to the defendant counsel (Jilleen Wiskia's attorney) fees in the sum of $500, which the court believes are reasonable in amount and necessarily incurred in the defense of this action, together with other out-of-pocket disbursements incurred by the defendant as shown by the proposed bill of costs which has been presented to the Court by defense counsel in support of his motion to tax attorney's fees under sec. 814.025, Stats."

The petitioner then filed a motion requesting the trial court reconsider and increase the attorney's fees allowed $500 out of a total bill of $2,565 submitted by the attorneys. The trial court reconsidered and increased the attorney's fees to $850.

On October 20, 1978 judgment was entered and signed by the judge providing as follows:

"The court having heard the motion for the taxation of costs and having rendered memorandum decisions on the 23rd day of August, 1978 and the 3rd day of October, 1978, and the court having directed judgment to be entered accordingly;

"IT IS HEREBY ADJUDGED:

"1. That the action of plaintiff is dismissed, upon the merits, with prejudice.

"2. That the action as commenced and maintained by the plaintiff, City of Janesville, was frivolous within the terms of Wisconsin Statutes Section 814.025.

"3. That pursuant to Wisconsin Statutes Section 299.25(13) and Section 814.025, defendant (Jilleen Wiskia) does recover from plaintiff the sum of $111.98 as costs ⁴ together with reasonable attorney fees in the sum of $850.00."

Thereafter, Wiskia, appealed from part of the trial court's judgment and sought full reimbursement for her attorneys' fees. The city of Janesville, in turn, cross-appealed from "paragraphs 2 and 3 of the judgment" holding the city's action was frivolous and awarding the petitioner $850.00 in attorney's fees.

The court of appeals reversed the trial court's judgment and held that:

1. the city's prosecution of the petitioner for violation of sec. 22.16(1) of the Municipal Ordinances was not frivolous; and

2. the trial court erred in awarding the petitioner attorneys' fees pursuant to sec. 814.025, Stats.

Jilleen Wiskia petitioned this court for review of the court of appeals decision.

ISSUE

Was the petitioner entitled to recover costs and "reasonable attorney fees" incurred in defense of an action brought by the city to enforce sec. 22.16(1) of the City of Janesville's Code of Municipal Ordinances, pursuant to sec. 814.025, Stats.?

On review, the petitioner, Jilleen Wiskia, contends that the court of appeals erred in reversing the trial court's finding that the action commenced by the city of Janesville was frivolous and furthermore claims that she was entitled to recover "reasonable attorneys fees" pursuant to sec. 814.025, Stats. She also argues that the trial court's award of attorneys' fees should be increased, despite the fact that the court of appeals did not deal with the question of whether the amount of attorneys' fees awarded was adequate because the court of appeals ruled that the action was not frivolous and thus sec. 814.025, Stats., did not apply to this case.

In Milwaukee v. Leschke, 57 Wis.2d 159, 203 N.W.2d 669 (1973), this court stated:

"In proceedings for violation of municipal ordinances there is no liability for, or right to, costs in the absence of statutory authorization. It is stated in 9 McQuillin, Municipal Corporations (3rd ed. rev.), p. 712, sec. 27.43, that:

" 'Costs are the creatures of statutes and cannot be awarded unless expressly provided. At common law they were not recoverable by either party in any case, civil or criminal. It has often been held that in the absence of statute providing therefor, costs cannot be taxed against a municipality in cases for violations of ordinances, no matter whether the case is decided against it or not . . . .'

"This court has consistently held that at common law costs were unknown, and that in this state costs are regulated exclusively by statute as a matter of legislative discretion . . . (citations omitted). In the absence of a statute authorizing costs they are not recoverable . . . (citations omitted).

"Forfeiture actions for municipal ordinance violations are governed by chs. 66, 288, 299 and 345, Stats." Id. at 161-62, 203 N.W.2d at 670-71. See also: State ex rel. Korne v. Wolke, 79 Wis.2d 22, 255 N.W.2d 446 (1977).

Sec. 814.025, Stats., allows a successful party to recover "reasonable attorney fees" if the action commenced by the plaintiff "is found, at any time during the proceedings or upon judgment, to be frivolous by the court." The question of the application and interpretation of sec. 814.025, Stats., effective April 7, 1978 (Public Laws 1977, ch. 209, § 1) has not been previously considered by this court.

It should be noted that this court has consistently held, in a number of cases, that a prosecuting attorney possesses broad discretion in determining whether to charge a defendant and proceed to trial. In State ex rel. Kurkierewicz v. Cannon, 42 Wis.2d 368, 166 N.W.2d 255 (1969), the ". . . leading Wisconsin case regarding the exercise of prosecutorial discretion . . . ." ⁵ this court held that:

"It is clear that in his functions as a prosecutor he has great discretion in determining whether or not to prosecute. There is no obligation or duty upon a district attorney to prosecute all complaints that may...