Stoll v. Adriansen

Decision Date27 December 1984
Docket NumberNo. 83-1673,83-1673
CourtWisconsin Court of Appeals
PartiesDr. William M. STOLL and Frances M. Stoll, Plaintiffs-Appellants. v. Ronald J. ADRIANSEN, d/b/a Adriansen Construction, Defendant and Third-Party Plaintiff-Respondent, Verne Conder, Melvin W. Brotski, d/b/a Melvin W. Brotski Plumbing & Heating, Robert Fellows, d/b/a Fellows Electric Service, Hockers Bros. Brick & Tile Co., Inc., Badger Sheet Metal Works, Harvey Keyser, Green Bay Kitchen Mart, Inc., and Venetian Marble of Madison, Inc., Third-Party Defendants.

Review Denied.

Will, Flatley & Smith, Green Bay, for plaintiffs-appellants.

Carl W. Kuehne and Kuehne & Dietz, Green Bay, for defendant and third-party plaintiff-respondent.

Before CANE, P.J., and DEAN and NETTESHEIM, JJ.

NETTESHEIM, Judge.

William Stoll and Frances Stoll appeal from the trial court's judgment granting Ronald Adriansen attorney fees and costs pursuant to the frivolous action statute, sec. 814.025, Stats. The Stolls also appeal the denial of their motion for similar relief under the same statute. 1 We conclude that the trial court properly applied sec. 814.025 and affirm the judgment.

The Stolls and Adriansen entered into an oral agreement for construction of a residence in DePere, Wisconsin. Adriansen, a building contractor, began construction in 1972, and the Stolls moved into the house in April 1973.

In December 1976, the Stolls brought this action against Adriansen for negligent and careless construction of their home. The Stolls alleged several different claims of negligent construction in the complaint. They also claimed damages for diminution in the value of the house and for inconvenience associated with the alleged defects. Adriansen counterclaimed, alleging defamation and intentional infliction of emotional distress.

A jury trial was held in December 1980. The trial lasted eight days and involved nine attorneys. Several of the Stolls' claims were dismissed before the case went to the jury. The jury found no negligence on the part of Adriansen. After verdict, Adriansen claimed the Stolls' action was frivolous and requested reasonable attorney fees and costs under sec. 814.025, Stats. The Stolls also requested reasonable attorney fees and costs, claiming that Adriansen's counterclaim was frivolous. After evidentiary hearings on these claims the trial court granted Adriansen's motion and ordered that he recover $12,069 plus costs and disbursements. The Stolls' motion was denied.

We first consider whether the trial court could properly assess attorney fees and costs under sec. 814.025, Stats., after denying Adriansen's motion for summary judgment and after choosing to submit the case to the jury over Adriansen's motion for directed verdict. The Stolls claim that the trial court's refusal to terminate their claims at these earlier stages precludes a finding of frivolousness as a matter of law.

The question of the application of a statute to a particular set of facts presents a question of law. Bucyrus-Erie Co. v. DILHR, 90 Wis.2d 408, 417, 280 N.W.2d 142, 146-47 (1979). When considering a question of law, we owe no deference to the trial court's decision. Behnke v. Behnke, 103 Wis.2d 449, 452, 309 N.W.2d 21, 22 (Ct.App.1981).

We conclude that the trial court properly granted the motion for attorney fees and costs even though the motion was granted after the case was submitted to the jury. Section 814.025(1), Stats., permits the trial court to make a determination of frivolousness at any time preceding judgment or upon judgment:

If an action ... commenced or continued by a plaintiff ... 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 ... and reasonable attorney fees. [Emphasis added.]

The question of frivolousness is not determined in the same manner as motions for summary judgment or directed verdict. Nevertheless, the Stolls contend that it is illogical to find sufficient merit to submit an action to the jury and subsequently find the action frivolous. We disagree.

A trial court should not take a case away from a jury except in extreme and unusual situations. Millonig v. Bakken, 112 Wis.2d 445, 449-50, 334 N.W.2d 80, 83 (1983); Village of Menomonee Falls v. Michelson, 104 Wis.2d 137, 154, 311 N.W.2d 658, 666 (Ct.App.1981). Furthermore, the supreme court has repeatedly admonished trial judges that, where there is a motion for directed verdict, it is the better practice to reserve the ruling on the motion and submit the matter to the jury. Samson v. Riesing, 62 Wis.2d 698, 704, 215 N.W.2d 662, 665 (1974). This was the procedure utilized by the trial court here. We conclude it was proper for the trial court to submit the case to the jury and make a later determination as to frivolousness.

The next issue is whether the trial court may find some claims constituting an action frivolous and others not frivolous. The trial court determined that sec. 814.025, Stats., permits such separate findings and proceeded to rule that all but one of the Stolls' claims were frivolous. The statute provides costs and attorney fees if an action or special proceeding is found frivolous. The Stolls contend that this language requires the trial court to find all claims constituting an action to be frivolous before costs and attorney fees can be assessed. We agree with the trial court's interpretation of the statute.

This again presents a question of statutory interpretation to which we owe no deference to the determination of the trial court. Behnke, 103 Wis.2d at 452, 309 N.W.2d at 22. In construing a statute, the primary goal is to reach a reasonable construction which will effectuate the statute's purpose. State ex rel. Melentowich v. Klink, 108 Wis.2d 374, 380, 321 N.W.2d 272, 275 (1982). The primary source of statutory construction is the language of the statute itself. Kimberly-Clark Corp. v. Public Service Commission, 110 Wis.2d 455, 462, 329 N.W.2d 143, 146 (1983). If the statutory language is plain and clearly understood, that meaning must be given to the statute. In re Athans, 107 Wis.2d 331, 335, 320 N.W.2d 30, 32 (Ct.App.1982). However, so as to avoid unreasonable and absurd consequences, the plain meaning of the statute should not be extended without restriction. State ex rel. Opelt v. Crisp, 81 Wis.2d 106, 116, 260 N.W.2d 25, 30 (1977).

We conclude that the language of sec. 814.025, Stats., which refers to "an action or special proceeding" and "a counterclaim, defense or cross-complaint" is ambiguous insofar as it fails to advise whether it applies to the entire legal posture taken by a litigant in an action or only to a portion of it. A statute is ambiguous if it can be construed in two or more ways by reasonably well-informed persons. American Industrial Leasing Co. v. Geiger, 118 Wis.2d 140, 146, 345 N.W.2d 527, 530 (Ct.App.1984).

When an ambiguity in statutory language is present, we must determine the legislative intent from the language of the statute in relation to its scope, history, context, subject matter and object intended to be accomplished. County of Milwaukee v. Proegler, 95 Wis.2d 614, 625, 291 N.W.2d 608, 613 (Ct.App.1980).

The obvious purpose of sec. 814.025, Stats., is to deter litigants and attorneys from commencing or continuing frivolous actions and to punish those who do so. The trial court must enforce sec. 814.025 for the purpose of maintaining the integrity of the judicial system and the legal profession. Sommer v. Carr, 99 Wis.2d 789, 799, 299 N.W.2d 856, 861 (1981).

Although there is no express authority in sec. 814.025, Stats., to separately consider the frivolousness of various claims which constitute an action, we conclude that a reasonable and sensible reading of the statute requires such an approach. To conclude otherwise would frustrate the obvious purpose of the statute. Were we to accept the Stolls' argument, a party could assert a marginally meritorious claim and numerous frivolous claims but yet avoid the statute's sanctions. This interpretation is unreasonable because it allows for the very abuse of the judicial system that the statute seeks to prevent. Unreasonable and absurd consequences in the application of the statute are to be avoided even where the language of the statute conveys a plain meaning. White v. General Casualty Co., 118 Wis.2d 433, 438, 348 N.W.2d 614, 617 (Ct.App.1984).

A more reasonable interpretation allows the trial court to determine the frivolousness of the various claims constituting an action or a defense. The purpose of sec. 814.025, Stats., is thereby fulfilled. We therefore agree with the trial court's determination that it could properly find some claims within an action frivolous and some not frivolous.

The Stolls next argue that their action was not frivolous because there was a reasonable basis in law or equity for commencing the action. 2 The trial court assessed Adriansen's attorney fees and costs against the Stolls 3 after making a determination of frivolousness under sec. 814.025(3)(b), Stats., which requires a finding that "[t]he party or the party's attorney knew, or should have known, that the action ... was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law."

The question of whether a reasonable attorney or litigant would or should have concluded that a claim is without reasonable basis in law or equity presents a mixed question of law and fact. State v. State Farm Fire & Casualty Co., 100 Wis.2d 582, 601, 302 N.W.2d 827, 837 (1981). A determination of what a reasonable attorney or litigant would or should have known with regard to the facts requires the trial court to determine what those facts were. This presents a question of fact. Id. at 602, 302...

To continue reading

Request your trial
138 cases
  • State v. Vonesh
    • United States
    • Court of Appeals of Wisconsin
    • 18 Diciembre 1986
    ...... Stoll v. Adriansen, 122 Wis.2d 503, 511, 362 N.W.2d 182, 187 (Ct.App.1984). When a statute is ambiguous, a reviewing court may resort to extrinsic aids to ......
  • Nelson v. Monroe Regional Medical Center
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 10 Abril 1991
    ...cause of the person's emotional distress, and (4) the emotional distress must be extreme and disabling." Stoll v. Adriansen, 122 Wis.2d 503, 516, 362 N.W.2d 182, 189 (Wis.App.1984), rev. den. 122 Wis.2d 782, 367 N.W.2d 222 (1985); see Alsteen, 21 Wis.2d at 359-61, 312 N.W.2d at 318; Laska v......
  • Trinity Petroleum v. Scott Oil Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • 6 Julio 2007
    ...744 (1999), the court explained that the underlying purposes of § 814.025 are deterrence and punishment. In Stoll v. Adriansen, 122 Wis.2d 503, 511, 362 N.W.2d 182 (Ct.App.1984), the court of appeals stated that "[t]he trial court must enforce sec. 814.025 for the purpose of maintaining the......
  • Donohoo v. Action Wisconsin Inc.
    • United States
    • United States State Supreme Court of Wisconsin
    • 5 Junio 2008
    ...not determined in the same way that a motion for summary judgment or a motion to dismiss is determined, see Stoll v. Adriansen, 122 Wis.2d 503, 509, 362 N.W.2d 182 (Ct.App.1984); yet, the circuit court did not articulate or apply a different standard for these differing legal ¶ 124 In order......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT