Vill. of Genoa City v. Tudor

• Decision Date: 29 March 2023
• Docket Number: 2022AP1669
• Parties: Village of Genoa City, Plaintiff-Respondent, v. April Lynn Tudor, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

1

Village of Genoa City, Plaintiff-Respondent, v. April Lynn Tudor, Defendant-Appellant.

No. 2022AP1669

Court of Appeals of Wisconsin, District II

March 29, 2023

This opinion will not be published. See Wis.Stat. Rule 809.23(1)(b)4.

APPEAL from an order of the circuit court for Walworth County Cir Ct. No. 2021FO807: DANIEL STEVEN JOHNSON, Judge. Affirmed.

NEUBAUER, J. ^[1]

¶1 April Lynn Tudor appeals from an order granting the Village of Genoa City's (Village) motion to voluntarily dismiss this case with prejudice and denying her request for an award of attorney fees and costs. Tudor does not oppose the dismissal, but argues that she was entitled to an award of attorney fees and costs under Jandrt ex rel. Brueggeman v. Jerome Foods Inc., 227 Wis.2d 531, 597 N.W.2d 744 (1999), because the Village frivolously continued to litigate this case past the point at which it knew its claim lacked merit. As explained below, Jandrt does not control this case, Tudor was not entitled to an award of attorney fees and costs, and the circuit court did not erroneously exercise its discretion in denying her request. Accordingly, this court affirms.

BACKGROUND

¶2 In August 2021, a Village police officer began issuing daily citations to Tudor for trespassing and zoning violations because fencing that had been installed on her property allegedly extended onto her neighbors' lots. Tudor received more than forty trespassing citations in all including the one at issue in this case, which alleged a violation of a Village code provision that adopts Wisconsin's trespass to land statute, Wis.Stat. § 943.13. See Village of Genoa City, Wis., Code § 194-1 (2004).^[2]

¶3 The Village commenced separate actions for each citation, all of which Tudor moved to dismiss in October 2021. Tudor argued that even if the fencing extended beyond the boundaries of her lot, Wis.Stat. § 943.13(1m)(a) did not apply to a fence because it only prohibits a person from "[e]nter[ing] any enclosed, cultivated or undeveloped land of another … without the express or implied consent of the owner or occupant." Sec. 943.13(1m)(a).

¶4 The circuit court addressed Tudor's motion at a hearing in February 2022. The court agreed with Tudor that "a fence isn't entering anywhere. A fence is inanimate, it's not moving, it's not going from one place to another place, it's set in a specific location. So Ms. Tudor can't be trespassing when she's not entering the property and an inanimate object is sitting over the lot line." The court acknowledged that "the Village might be able to give her a citation [for] the first day she put the fence up because obviously someone had to go on the property." But the court stated that the Village "[could not] give a citation for trespass every single day thereafter," describing that as "pretty clearly improper." Consistent with these comments, the court dismissed all of the actions except the one pertaining to the citation for the day the fence was installed.

¶5 In early April 2022, the Village filed a motion to voluntarily dismiss the remaining action pursuant to Wis.Stat. § 805.04(1)-(2). With its motion, the Village submitted a letter it had received from Tudor's counsel stating that Tudor would not object to the voluntary dismissal if the Village agreed to pay her $14,926.20 in attorney fees and costs. The Village did not respond to this proposal before filing its motion, so Tudor filed a brief objecting to any dismissal that was not accompanied by an award of attorney fees and costs. She argued that she was entitled to such an award under Jandrt because the Village had "frivolously maintained" the remaining action against her. This argument was grounded in a purported dispute as to the exact location of the boundaries of Tudor's lot. Because no court had determined the boundaries, Tudor contended, the Village could not possibly prove that she had trespassed. Tudor also accused the Village of seeking a voluntary dismissal to "shirk its legal duty to compensate [her] for" frivolously continuing to litigate the case. She did not, however, file a motion seeking the fees and costs as a sanction against the Village.

¶6 At a hearing on May 2, 2022, the circuit court granted the Village's motion and denied Tudor's request for attorney fees and costs. Among its reasons for granting the dismissal, the court emphasized that the Village sought a dismissal with prejudice which, "[a]bsent something significant," generally is not accompanied by an award of costs and fees under Bishop v. Blue Cross & Blue Shield United of Wisconsin, 145 Wis.2d 315, 426 N.W.2d 114 (Ct. App. 1988). The court also observed that Tudor had not shown that she "complied with the procedures outlined in the statute for frivolousness," an apparent reference to Wis.Stat. § 802.05. Tudor appeals.

DISCUSSION

¶7 Tudor contends that this court should review the circuit court's decision de novo because this court must interpret Wis.Stat. §§ 802.05 and 805.04, apply Jandrt, and determine whether the Village frivolously continued this action. In her reply brief, she argues that the court erred as a matter of law in denying her request for fees and costs because Jandrt "makes clear that frivolously maintained actions mandate compensation of fees to innocent defendants." The Village, in contrast, contends that the court's decision is reviewed only for an erroneous exercise of discretion.

¶8 This court agrees with the Village. As Tudor acknowledges the question presented by this appeal is whether the circuit court properly granted the Village's motion without awarding her costs and attorney fees. The Village moved for voluntary dismissal under Wis.Stat. § 805.04, which permits a court to grant a voluntary dismissal "upon such terms and conditions as the court deems proper." Sec. 805.04(2).^[3] This language affords a court discretion in setting the terms and conditions of a voluntary dismissal. Because Tudor challenges "the appropriateness of the terms and conditions deemed proper by the [circuit] court" in connection with a voluntary dismissal, appellate review is deferential. See Dunn v. Fred A. Mikkelson, Inc., 88 Wis.2d 369, 380, 276 N.W.2d 748 (1979) (reviewing voluntary dismissal conditioned on partial payment of defendant's legal expenses for erroneous exercise of discretion); Bishop, 145 Wis.2d at 320 ("[W]hether payment of attorney fees may be made one of the 'proper' terms of dismissal under [§] 805.04(2) … is discretionary with the [circuit] court.").

¶9 However, in exercising discretion, a circuit court must correctly identify and apply the governing law. See State v. Tarlo, 2016 WI.App. 81, ¶6, 372 Wis.2d 333, 887 N.W.2d 898. This court "independently determine[s] … whether the [circuit] court applied the correct standard of law." State v. Bucki, 2020 WI.App. 43, ¶22, 393 Wis.2d 434, 947 N.W.2d 152. This court will affirm the circuit court's decision "if [it] applied the proper law to the relevant facts of record and used a rational process to arrive at a reasonable result." Clark v. Mudge, 229 Wis.2d 44, 50, 599 N.W.2d 67 (Ct. App. 1999).

¶10 Tudor has not established that the circuit court erroneously exercised its discretion in denying her request. The court correctly identified Bishop as setting forth the law governing an award of attorney fees and costs in connection with a voluntary dismissal with prejudice. And it correctly identified the nature of the dismissal as the significant factor in the analysis. In Bishop, this court observed that an "award of attorney fees and costs is recognized as a proper term or condition" where a voluntary dismissal is without prejudice because such a dismissal leaves open the possibility that the plaintiff may refile the lawsuit later. Bishop, 145 Wis.2d at 317-18. That possibility "means [that] the defendant has been put to expense [in the dismissed lawsuit] literally for nothing." Id. at 318 (quoting Dunn, 88 Wis.2d at 377; first alteration in original). Thus, an award of attorney fees and costs in such cases can "protect the defendant from economic prejudice." Dunn, 88 Wis.2d at 378.

¶11 In contrast, a voluntary dismissal with prejudice does not raise these concerns because "the defendant is protected from the risk of further litigation." Bishop, 145 Wis.2d at 318. In addition to this protection, awarding a defendant attorney fees when a lawsuit is dismissed with prejudice would run counter to the long-standing "American Rule" that each side typically pays for its own attorney. See Estate of Kriefall v. Sizzler USA Franchise, Inc., 2012 WI 70, ¶72, 342 Wis.2d 29, 816 N.W.2d 853; Bishop, 145 Wis.2d at 320.

¶12 The Bishop court did not foreclose the possibility that an award of attorney fees in connection with a dismissal with prejudice could be appropriate, but it recognized that the circumstances that would justify such an award would be rare. See Bishop, 145 Wis.2d at 319-20. Specifically, the Bishop court cited a hypothetical example of a litigant who "made a practice of repeatedly bringing potentially meritorious claims and then dismissing them with prejudice after inflicting substantial litigation costs on the opposing party and the judicial system." Bishop, 145 Wis.2d at 320 (quoting Colombrito v. Kelly, 764 F.2d 122, 134-35 (2d Cir. 1985)). Tudor does not argue that the Village's conduct fits this description.

¶13 The dismissal with prejudice shields Tudor from the risk of further trespass litigation and ensures that she has not "been put to expense literally for nothing." Bishop, 145 Wis.2d at 318 (quoting Dunn, 88 Wis.2d at 377). Because Tudor had this lawsuit resolved in her favor and on the merits, the circuit court could reasonably conclude that an award of attorney fees and costs was not a proper term or...