Kang v. Board of Regents of University of Wisconsin System, No. 2005AP507 (Wis. App. 11/16/2006)

• Decision Date: 16 November 2006
• Docket Number: No. 2005AP507.,2005AP507.
• Court: Wisconsin Court of Appeals
• Parties: Seonkyu Kang, Plaintiff-Appellant-Cross-Respondent, v. Board of Regents of the University of Wisconsin System, Defendant-Respondent-Cross-Appellant.

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Seonkyu Kang, Plaintiff-Appellant-Cross-Respondent, v. Board of Regents of the University of Wisconsin System, Defendant-Respondent-Cross-Appellant.

Court of Appeals of Wisconsin, District IV.

No. 2005AP507.

Opinion Filed: November 16, 2006.

APPEAL and CROSS-APPEAL from a judgment and orders of the circuit court for Dane County: MICHAEL N. NOWAKOWSKI, Judge. Affirmed in part and reversed in part.

Before Dykman, Deininger and Higginbotham, JJ.

¶1 DYKMAN, J

Seonkyu Kang appeals pro se from a summary judgment order, motion in limine order, and final order and judgment in his open records¹ case against the University of Wisconsin. The University argues that Kang's appeal should be dismissed because his appellate brief argued only issues not preserved for review. It also cross-appeals the award of attorney fees to Kang. We affirm in part and reverse in part.²

¶2 Kang contends that the trial court erred by denying his request for a trial to seek more documents. He also argues that the trial court erred by denying his request for a trial to question the authenticity of some documents he received. Kang also asserts his attorney abandoned his duty as his lawyer and the trial court committed misconduct by "backdating" the final judgment. The University cross-appeals from the portion of the judgment awarding Kang attorney fees under WIS. STAT. § 19.37(2)(a). The University argues the court erred in determining that Kang had "prevailed in substantial part" in the action as required under the statute. Because we conclude that the trial court correctly granted summary judgment, properly exercised its discretion when granting the University's motion in limine³ and correctly entered its final order and judgment, but incorrectly interpreted "prevailed in substantial part" under § 19.37(2)(a), we affirm the summary judgment order, motion in limine order, and final order and judgment, and reverse the portion of the judgment awarding attorney fees.

Background

¶3 The following is taken from the parties' stipulation of facts and other materials. Seonkyu Kang entered the graduate program in the University of Wisconsin-Madison's Department of Mechanical Engineering (ME Department) in January 1998. Kang completed three semesters of graduate work, and then decided to pursue a Ph.D. in the ME Department. He took the ME Department's Ph.D. qualifying examination on three separate occasions: September 1999, February 2000, and February 2001. The final decision by the Ph.D. qualifying committee for each exam was "fail," denying Kang admittance to the Ph.D. program.

¶4 Kang submitted written requests to the University of Wisconsin's ME Department for information relating to his examinations between November 2001 and February 2003. In response to Kang's open records requests, the University released some documents, but delayed or withheld other documents to which Kang was entitled. Kang filed an action for mandamus under WIS. STAT. §§ 19.31-19.39, asking the court to order the University to produce the documents it continued to withhold.

¶5 The University moved for partial summary judgment asking the court to dismiss some of Kang's claims and limit the issues for trial to actual and punitive damages. The court concluded that Kang had presented no evidentiary materials showing that any additional records existed and therefore limited the issue at trial to damages. The court held a trial and issued an oral ruling.

¶6 The court filed its summary judgment order, motion in limine order, and final order and judgment on January 5, 2005. The court found that while the University had intentionally and willfully withheld documents to which Kang was entitled under the open records law, it was not continuing to withhold any such documents. It awarded Kang actual and punitive damages, as well as about $10,000 in attorney fees. Following the ruling, on January 13, 2005, Kang's attorney was permitted to withdraw from the case on Kang's request, allowing Kang to represent himself. Kang then filed a series of pro se motions from which Kang specifically states he is not appealing.

¶7 Kang filed a notice of appeal from the summary judgment order, motion in limine order, and final order and judgment. The University cross-appeals from the portion of the judgment awarding Kang attorney fees.

Discussion

¶8 The University argues that Kang's appeal must be dismissed because his notice of appeal states he appeals from the summary judgment order, motion in limine order, and final order and judgment entered January 5, 2005, while his brief is limited to issues raised for the first time in his postjudgment motions. We conclude, however, that Kang has raised at least some reviewable issues in his appellate briefs. Thus, we will address the merits of those issues.

¶9 In our original opinion, we rejected the University's argument that Kang could not raise issues in his postjudgment motions when his notice of appeal was from the summary judgment order, motion in limine order, and final order and judgment,⁴ citing Carrington v. St. Paul Fire & Marine Ins. Co., 169 Wis. 2d 211, 217 n.2, 485 N.W.2d 267 (1992) (citations omitted) (finding notice of appeal from summary judgment rather than from actual judgment was an inconsequential violation). In his motion for reconsideration, Kang inexplicably asserts: "Accordingly, [the court of appeals'] conclusion that the defect in Kang's Notice of Appeal was inconsequential is an error, too."

¶10 In his motion for reconsideration, Kang apparently agrees with the University that the defect in his notice of appeal was consequential (not inconsequential) and his appeal should have been dismissed. Were we to do as the University requested, and what Kang seems to request, we would dismiss this appeal, and our opinion would end here.

¶11 But we cannot believe that Kang really wants us to dismiss his appeal. We will assume that he misunderstands the effect of a consequential defect in his notice of appeal, and we will address the arguments that he has made in his briefs.

¶12 Kang raises four issues on appeal. We address each in turn. In an attempt to adequately address Kang's concerns, we have taken the following description of issues from Kang's brief-in-chief.

(1) Kang asked for a trial to seek more documents. However, the trial court denied Kang's request.

¶13 In his revised trial brief and response to defendant's motion for summary judgment and motion in limine, Kang argued that summary judgment was inappropriate because "[t]rial in this case will involve both liability and damages," and he should be allowed "attempts to elicit evidence at trial relating to whether any other covered documents might exist." Further, Kang asserted that the University's motion in limine should be denied because "[t]he plaintiff does not intend to spend a lot of time asking questions about the possible existence of other documents, but he should not be precluded from doing so." In its oral ruling on the summary judgment motion in a hearing, the court said:

The plaintiff has submitted no evidentiary material that suggests, much less shows, that the couple of documents he still claims have not been provided in fact exist or could be located by further efforts. He points specifically to stipulated Exhibits 22, page A-18, and 23, page A-30, which are both marked as "page one" and contends there is a material factual dispute as to whether there are additional pages, but he offers no depositional testimony or affidavit that contradicts the explicit affidavit[s] of the various officials that affirmed there are not.

Further, he persists in his claim that a certain table or diagram has not been disclosed, but he offers no evidence that places in dispute the specific affidavit testimony of the defendants that such a document simply does not exist in any file or location known to the defendants.

The facts are undisputed and yield no other conclusion than that the defendants have now conducted a search for responsive documents that was reasonable and was reasonably calculated to find the requested documents. Whether the defendants unreasonably delayed in doing so will most certainly be an issue for trial. But whether they now have complied with their obligation to disclose does not require a trial because there is nothing left to try.

¶14 Thus, in the trial court, Kang raised the issue of whether more documents exist. The University is therefore not correct that this issue was not raised during trial. Kang's contention that he "asked for a trial to seek new documents" and that "the trial court denied his request" may therefore be construed as an appeal encompassing the trial court's summary judgment order.

¶15 We conduct an independent review of an order granting summary judgment. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 316-17, 401 N.W.2d 816 (1987). We employ the same methodology as the circuit court to determine if summary judgment was appropriately granted. Id. at 317. Summary judgment is only appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." WIS. STAT. § 802.08(2). Here, the circuit court concluded, based on the materials submitted to the court, that there was no genuine issue as to whether the University continued to withhold any documents. On our own review of the record, we agree.

¶16 In support of its motion for summary judgment, the University submitted affidavits of the following people: Glen Myers, Professor Emeritus in the UW-Madison ME Department and former Chair of the ME Department Ph.D. Qualifying Evaluation Committee; Neil Duffie, Professor and Chair of the UW-Madison ME Department; John Dowling, Senior University Legal Counsel at the UW-Madison; Christopher J. Rutland, Professor in the UW-Madison ME ...