State ex rel. J. H. Findorff & Son, Inc. v. Circuit Court for Milwaukee County, No. 97-3452-W (Wis. 4/6/2000)
| Decision Date | 06 April 2000 |
| Docket Number | No. 97-3452-W.,97-3452-W. |
| Parties | State of Wisconsin ex rel. J. H. Findorff & Son, Inc., Petitioner-Petitioner, v. Circuit Court for Milwaukee County, the Honorable Patrick T. Sheedy, presiding, John Trenhaile (d/b/a), Trenko Electric, Inc., St. Paul Fire and Marine Insurance Company and Milwaukee Metropolitan Sewerage District, Respondents. |
| Court | Wisconsin Supreme Court |
Appeal from the Circuit Court, Milwaukee County, Patrick Sheedy, Judge.
REVIEW of a decision of the Court of Appeals. Reversed and cause remanded.
For the petitioner-petitioner there were briefs by Michael B. Van Sicklen, Michael S. Heffernan and Foley & Lardner, Madison, and oral argument by Michael B. Van Sicklen.
For the respondent the cause was argued by James H. McDermott, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
¶ 1 J.H. Findorff & Son, Inc. (Findorff), the petitioner, seeks review of an unpublished court of appeals decision,1 which ruled against Findorff on its request for substitution, after remand from an appeal in an earlier action.
¶ 2 In the earlier action, the court of appeals reversed and remanded a circuit court decision against Findorff relating to breach of contract during a construction project. Findorff requested a judicial substitution on remand. Milwaukee County Circuit Court Judge William J. Haese, the judge assigned in this action, granted the substitution request, but Chief Judge Patrick T. Sheedy denied the request upon review. Findorff then petitioned the court of appeals for a supervisory writ of mandamus. The court of appeals affirmed on the basis that the court of appeals' original directives on remand required "specific action," and therefore, the right of substitution did not attach.
¶ 3 We conclude that the directives on remand in the original action required "further proceedings" to which the right of substitution does attach. The directives were for "further proceedings" because they required the circuit court to exercise its discretion, instead of merely discharging a ministerial duty. We also conclude that the chief judge was without authority to review and reverse the circuit court judge's decision granting Findorff's substitution request. Under both the Wisconsin statutes and the Supreme Court Rules, a chief judge may only review orders denying substitution, not those granting a substitution request. Accordingly, we reverse the court of appeals' decision and grant the petition for supervisory writ.
¶ 4 The facts in this case are not disputed. John Trenhaile, doing business as Trenko Electric, Inc. (Trenko),2 worked as an electrical subcontractor for Findorff, the general contractor in a large sewer construction project. After Trenko completed most of its work on the project, three of Trenko's unsecured creditors petitioned to have Trenko placed in involuntary bankruptcy. Two months later, Trenko halted its work, forcing Findorff to hire another electrical contractor and subcontractor to finish the project. Trenko then brought an action against Findorff, the Milwaukee Metropolitan Sewerage District (MMSD), and Saint Paul Fire and Marine Insurance Company, Findorff's surety, as the bankruptcy assignee. Trenko made claims against Findorff, inter alia, for breach of contract, restitution, and unjust enrichment. Findorff counterclaimed that Trenko breached the contract by not finishing its work.
¶ 5 The case was tried in a bench trial before the Honorable William J. Haese of the Milwaukee County Circuit Court. The circuit court found that Trenko lost profits resulting from a breach of contract. He awarded Trenko approximately $ 350,000.00 in damages against Findorff, but reduced the damage award by 50% for contributory fault. Trenko further recovered $ 5,000.00 from Findorff under a theory of unjust enrichment. The circuit court also denied Findorff's claim for offsets and dismissed the Saint Paul Fire and Marine Insurance Company from the lawsuit.
¶ 6 Findorff appealed, and Trenko cross-appealed from the judgment. The court of appeals reversed the circuit court's judgment. Findorff v. Circuit Court for Milwaukee County, unpublished slip op. (Ct. App. September 16, 1997). It found that the circuit court had not made factual findings to entitle Trenko to recovery for future lost profits, had used incorrect damage figures, and had failed to explain why it dismissed Findorff's surety or denied Findorff's offsets. Slip op. at 2-3. The court of appeals remanded the case to the circuit court with directives stating:
On remand, the trial court shall: (1) make detailed factual findings and determine whether the facts support an award of consequential damages, foreseeability and reasonable certainty; (2) either utilize the damage figures introduced into evidence or make specific findings and conclusions as to why another damage figure is being used; (3) reinstate the surety, Saint Paul, and determine what damage, if any, the surety must pay; and (4) determine whether and on what legal basis Findorff's offsets and defenses should be denied. Finally, the trial court should determine any damage amounts without resorting to tort principles.
¶ 7 Upon remand, Findorff moved to substitute Judge Haese under Wis. Stat. § 801.58(7)(1995-96).3 Judge Haese granted the request, and the case was temporarily reassigned to Judge Lee E. Wells.4 However, after a hearing on the substitution request conducted by telephone conference on November 7, 1997, the chief judge denied the substitution and reassigned the case to Judge Haese. The chief judge noted that Judge Wells took over Judge Haese's calendar on rotation when Judge Haese transferred to the family division. He stated that he was reassigning the case to Judge Haese because Judge Wells had objected to being assigned a case on remand, and "that to assign this to Judge Wells, I am basically ordering a completely new trial." (Pet. App. at 148.) He concluded that the right of substitution did not attach since the court of appeals gave directives that were "very specific" and did not call for a new trial.
¶ 8 Findorff then filed a Petition for Supervisory Relief5 with the court of appeals. In the petition Findorff requested that the court of appeals order the circuit court to grant the substitution request. On November 20, 1997, Judge Haese first informed the parties that he had originally granted the substitution request. (Pet. App. at 166.) Until that moment, the parties believed that Judge Wells had been assigned the case on rotation. On that basis, Findorff filed a supplement to its petition arguing that a chief judge may only review substitution in a case in which a circuit court judge already has denied a substitution request. Findorff therefore claimed that Judge Sheedy erred by returning the case to Judge Haese. Judge Haese ordered that "further proceedings" be stayed pending resolution of the substitution issue.
¶ 9 The court of appeals denied the petition on March 5, 1999. It first concluded that Findorff's substitution request was timely because it was filed within twenty days after the clerk of the circuit court received the court of appeals' remittitur, and it "clearly sought judicial substitution." Slip op. at 4.
¶ 10 It then held that according to Cuccio v. Rusilowski, 171 Wis. 2d 648, 492 N.W.2d 345 (Ct. App. 1992), the right of substitution did not attach in this case. "[T]he right to substitution exists when the remand is for a new trial or for proceedings other than specific action," it noted. Slip op. at 4. Rusilowski states that a mandate that does not require further development of the record is a mandate for "specific action." Slip op. at 4-5 (citing Rusilowski, 171 Wis. 2d at 654, 492 N.W.2d at 348). Based on this reasoning, the court of appeals concluded that the directives at issue required "specific action" because "no new facts need be garnered, no added record need be made; rather, the trial court is left with the same record and need not add to it." Slip op. at 5. Therefore, it held that the right of substitution does not exist here. Slip op. at 5.
¶ 11 In this case we must determine whether to grant Findorff's petition for a supervisory writ. A petition for a supervisory writ is granted only if an appeal does not offer an adequate remedy, grave hardship will result from a circuit court's actions, and a party makes a prompt request for relief. State ex rel. Oman v. Hunkins, 120 Wis. 2d 86, 91, 352 N.W.2d 220 (Ct. App. 1984).
¶ 12 The first issue we address in determining whether to grant the writ is what constitutes a remand for "further proceedings" pursuant to Wis. Stat. § 801.58(7), entitling the parties in a case to substitution of a judge. This issue presents a question of statutory interpretation, which we review de novo. Cemetery Serv., Inc. v. Department of Reg. & Licens., 221 Wis. 2d 817, 823, 568 N.W.2d 191 (1998).
¶ 13 Wisconsin Stat. § 801.58(7)6 "creates an unqualified right to substitution when further trial court proceedings are necessary after remand from an appellate court." Oman, 120 Wis. 2d at 91. It provides:
If upon an appeal from a judgment or order or upon a writ of error the appellate court orders a new trial or reverses or modifies the judgment or order as to any or all of the parties in a manner such that further proceedings in the trial court are necessary, any party may file a request under sub. (1) [] within 20 days after the filing of the remittitur in the trial court whether or not another request was filed prior to the time the appeal or writ of error was taken.
Wis. Stat. § 801.58(7).
¶ 14 Following remand and remittitur, a circuit court may conduct three types of proceedings: 1) a proceeding in which a circuit court takes "specific action" as ordered; 2) a proceeding in which a circuit court conducts a new trial; or 3) any further proceedings other than those...
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