Northwest Wholesale Lumber, Inc. v. Anderson

• Decision Date: 26 January 1995
• Docket Number: No. 94-0319,94-0319
• Citation: 528 N.W.2d 502,191 Wis.2d 278
• Parties: NORTHWEST WHOLESALE LUMBER, INC., Plaintiff, v. Ed ANDERSON, Defendant-Third Party Plaintiff-Appellant, Mary ANDERSON, Defendant-Third Party Plaintiff, v. Jon P. MORTRUD, Third Party Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 502

528 N.W.2d 502

191 Wis.2d 278

NORTHWEST WHOLESALE LUMBER, INC., Plaintiff, v. Ed ANDERSON, Defendant-Third Party Plaintiff-Appellant, Mary ANDERSON, Defendant-Third Party Plaintiff, v. Jon P. MORTRUD, Third Party Defendant-Respondent.

No. 94-0319.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 6, 1994.

Opinion Released Jan. 26, 1995.

Opinion Filed Jan. 26, 1995.

For the defendant-third party plaintiff-appellant the cause was submitted on the briefs of Joel Bruce Winnig of Madison.

For the third party defendant-respondent the cause was submitted on the brief of Thomas J. Basting, Sr. and Margery M. Tibbetts of Brennan, Steil, Basting & MacDougall, S.C. of Janesville.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

EICH, Chief Judge.

The issues in this case center on the time within which motions for sanctions must be filed under § 814.025, STATS., the "frivolous action" statute, and § 802.05(1)(a), STATS., which requires attorneys and parties signing pleadings or other documents in the course of a lawsuit to first determine that the documents are well grounded in fact and law.

Ed Anderson, a building contractor, built a house for Jon Mortrud. Anderson sued Mortrud for the balance claimed to be due on the contract, and Mortrud interposed various defenses and counterclaims. The case was tried to the court and a memorandum decision in Anderson's favor was filed on April 12, 1993. Judgment was entered on June 15, and Anderson filed a motion for sanctions under §§ 814.025 and 802.05, STATS., on August 9, 1993. The trial court denied the motion as untimely and Anderson appeals.

We conclude that the language of § 814.025(1), STATS., stating that costs shall be awarded if the trial court makes a finding of frivolousness either "during the proceedings" or "upon judgment," requires frivolous-action motions to be filed before the court enters judgment in the case. And while § 802.05, STATS., is silent on the time within which motions must be filed under its terms, we interpret that statute to embody the same requirement. We therefore affirm the trial court's order.

I. Section 814.025, STATS.

Insofar as it is pertinent to this appeal, § 814.025(1), STATS., provides as follows:

If an action ... commenced or continued by a plaintiff or a counterclaim, 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.

(Emphasis added.)

The trial court, reading the "upon judgment" language to require that such motions be made before judgment is entered, denied Anderson's motion as untimely. Interpretation of a statute is a question of law, which we review independently, owing no deference to the trial court's ruling. Nelson v. Zeimetz, 150 Wis.2d 785, 792, 442 N.W.2d 530, 533 (Ct.App.1989).

Anderson argues first that because costs had yet to be taxed on the judgment at the time he filed his motion under §§ 814.025 and 802.05, STATS., the "proceedings" continued to at least the time at which costs were taxed and thus his motion was timely. ¹ He offers no authority for the assertion, other than a citation to § 814.10, STATS. That statute, however, simply sets forth the procedure for taxing costs, and Anderson does not explain how its provisions aid his argument. ²

Anderson next argues that the only reasonable interpretation of § 814.025(1), STATS., is to construe the phrase "upon judgment" to mean within "a reasonable time after judgment." He argues that any other construction would be "absurd" and would frustrate the legislative intent underlying the statute. Specifically, he offers as his "most convincing and irrefutable argument" that the facts of the case compel us to rule his motion timely on pain of contravening the underlying purpose of the statute. He then sets forth the factual basis for his argument. ³ However, he has not provided citations to the record for the asserted facts, and we repeatedly have held that where a party fails to provide such citations, we will not consider the argument. See, e.g., Tam v. Luk, 154 Wis.2d 282, 291 n. 5, 453 N.W.2d 158, 162 (Ct.App.1990), where we stated:

[W]e decline to embark on our own search of the record, unguided by references and citations to specific testimony, to look for other evidence to support [the argument]. Section (Rule) 809.19(1)(e), STATS., requires parties' briefs to contain "citations to the ... parts of the record relied on" and we have held that where a party fails to comply with the rule, "this court will refuse to consider such an argument...." "[I]t is not the duty of this court to sift and glean the record in extenso to find facts which will support an [argument]."

(Quoted sources omitted.)

The sum and substance of Anderson's argument is, then, that we should read the limiting language "upon judgment" in the statute as allowing the filing of the motion within a reasonable time after judgment. In our opinion, to read such expanding language into the statute would be not to construe it but to rewrite it.

The aim of statutory construction is to ascertain the intent of the legislature, and our first resort is to the language of the statute itself. Kelley Co. v. Marquardt, 172 Wis.2d 234, 247, 493 N.W.2d 68, 74 (1992). If the words of the statute convey the legislative intent, that ends our inquiry. We will not look beyond the plain language of a statute to search for other meanings; we will simply apply the language to the case at hand. Id.

We believe that the language of § 814.025(1), STATS., conveys the legislature's intent. We assume that the legislature deliberately chooses the language it uses in a statute, and where nontechnical words like "upon" are at issue, it is appropriate to consider recognized dictionary definitions to ascertain their common and ordinary usage. Ervin v. City of Kenosha, 159 Wis.2d 464, 483-84, 464 N.W.2d 654, 662-63 (1991). WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 1296 (1991), defines "upon" as "on," and while the latter word has several definitions, the one most closely relating to the context in which the word "upon" appears in § 814.025(1), STATS., is that it is "a function word to indicate ... an instant, action, or occurrence when something begins or is done ... {news [on] the hour} {cash [on] delivery}...." Id. at 823. ⁴

We thus read the "upon judgment" language in § 814.025(1), STATS., as meaning what it says: at or upon the time judgment is entered in the case. We are aware that in In re Estate of Bilsie, 100 Wis.2d 342, 356, 302 N.W.2d 508, 516-17 (Ct.App.1981), we held that the finding of frivolousness could be postponed by the court until some time after judgment in order to give the opposing party an opportunity to be heard. There was no issue in Bilsie, however, concerning the timeliness of the filing of the motion, and we decline to rewrite the statute to allow frivolous-costs motions under § 814.025 to be filed at any time--or even at any "reasonable" time--after the entry of judgment, even though, under Bilsie, a court's decision on the motion may in appropriate circumstances be postponed. ⁵

We conclude that the trial court did not err in ruling that Anderson's motion was not timely filed and dismissing his claim for costs under § 814.025, STATS.

II. Section 802.05, STATS.

Anderson argues that insofar as his motion was based on § 802.05, STATS., it was timely because that statute does not impose any time limits on either the filing of the motion or the court's decision. According to Anderson, the statute is completely open-ended, allowing the filing of a § 802.05 motion at any time, regardless of whether judgment has been entered, or an appeal has been waived, taken or even completed. We disagree with Anderson's argument.

Section 802.05(1)(a), STATS., provides that an attorney's or a party's signature on a pleading, motion or other paper filed in an action constitutes a certification that, "to the best of [that person's] knowledge, information and belief, formed after reasonable inquiry," the document is well grounded in fact and law and is not being used for harassment or delay, or to increase the cost of litigation. The statute continues: "If the court determines that an attorney or party failed to read or make the determinations required under this subsection before signing [the document], the court may, upon motion or upon its own initiative, impose an appropriate sanction on the person...."

There are no Wisconsin cases discussing the timeliness of motions under § 802.05, STATS., and, as indicated, the statute is silent on the subject. It is, however, patterned after Rule 11 of the Federal Rules of Civil Procedure; indeed, it is nearly identical to the federal rule. As a result, federal cases interpreting Rule 11 may guide our interpretation of § 802.05. Riley v. Isaacson, 156 Wis.2d 249, 255, 456 N.W.2d 619, 621 (Ct.App.1990).

Federal authorities are split in their interpretation of the rule. Some circuits, treating the issues in a Rule 11 motion as "collateral" to those in the case itself, have held that the district court retains jurisdiction to consider a Rule 11 motion after judgment as long as an appeal from the judgment is pending. See the cases discussed in Forcucci v. United States Fidelity & Guar. Co., 153 F.R.D. 484 (D.Mass.1994). Others have held that, in the absence of a local court rule setting a time limitation for Rule 11 motions, "the only time limitation arises out of those equitable considerations that a district judge may weigh in his [or her] discretion." Hicks v. Southern Md. Health Sys. Agency, 805 F.2d 1165, 1167 (4th Cir.1986). Other courts consider that motions for attorney fees are timely if filed within the time in which the party could seek costs, Montgomery & Assoc., Inc. v. CFTC, 816 F.2d 783, 785 (D.C.Cir.1987), although...