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COURT OF APPEALS DECISION DATED AND RELEASED February 20, 1997 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No.
96-1148
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
ROBERT B. CIARPAGLINI,
Plaintiff-Appellant,
v.
KELLY FLURY and BELOIT DAILY NEWS,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Green County: JAMES E. WELKER, Judge. Affirmed.
Before Eich, C.J.,
Vergeront and Roggensack, JJ.
ROGGENSACK,
J. Robert B. Ciarpaglini appeals from an order which dismissed
his defamation action, as a sanction for failing to obey a court order, and
required him to pay attorney fees, for filing a frivolous lawsuit. Ciarpaglini argues that his failure to obey
the order was excusable because he mailed the motion which violated the court’s
order on the same day that the court issued the order, and that the award of
attorney fees was improper because his lawsuit was meritorious on its
face. Because Ciarpaglini’s conduct
leading to the violation of a court order was egregious and without a clear and
justifiable excuse, we determine that the circuit court did not abuse its
discretion by dismissing the action.
And, although the court did not make factual findings required by
§ 814.025, Stats., we
conclude that an award of attorney fees was proper under § 802.05, Stats., as a matter of law. Therefore, we affirm.
BACKGROUND
On November 9, 1995,
Robert Ciarpaglini filed a defamation action in Rock County against reporter
Kelly Flury and the Beloit Daily News for an article in which Flury had
commented on Ciarpaglini’s history of pro se litigation. Ciarpaglini
claimed that Flury had knowingly, recklessly, and maliciously made the
following statements, which Ciarpaglini claimed were false:
(1) “Ciarpaglini, a former
Beloit resident, and now a resident of the Dodge Correctional Institution.”[1]
(2)
“He has filed 39 civil cases in Dane County circuit court since 1989.”
(3)
“He has filed 59 civil cases in the U.S. District court in Madison since
1989.”
(4)
“Ciarpaglini, 27, is serving a 10 year prison term.”
(5)
“In 1993, he was charged with extortion for trying to get his girlfriend
to report a burglary that never happened so he could collect insurance money.”
(6)
“He was also accused of printing up letterhead stationary bearing the
name Pro Say Legal Services of Wisconsin and offering his legal services to
Rock County Jail inmates for a $20 fee.”
(7) “In Rock County circuit court, Ciarpaglini
filed three lawsuits last week alone.
Two of them concern his removal from community-based intensive sanctions
back to minimum security prison and then to medium security prison and then to
the maximum security Dodge Correctional Institute.”
Ciarpaglini
also filed an affidavit of indigency and petitioned the court for leave to
proceed in forma pauperis, without disclosing the terms of a prior
settlement which should have provided him sufficient funds to pay filing fees.[2] The circuit court denied the fee waiver
petition on November 10, 1995, on the ground that the complaint failed to state
a claim upon which relief could be granted.
It reasoned that:
¼
taking all of the allegations in the light most favorable to the movant, the
moving complaint does not state an arguably meritorious claim upon which relief
can be granted. State ex rel.
Rilla v. Circuit Court for Dodge County, 76 Wis 2d 429; 251 N.W. 2d 476
(1977); Sec. 814.29, Wisconsin Statutes. The activities complained of are protected by the First Amendment
to the United States Constitution and Article One, Section Three, of the
Wisconsin Constitution. There is no
allegation or reasonable inference that can be drawn from the complaint that
would take the action complained of outside the ambit of protected speech.
Ciarpaglini never
appealed the Rock County order.
Instead, on November 29, 1995, Ciarpaglini filed the same
defamation suit against Flury and the Beloit Daily News in Walworth
County. The complaint alleged the same
underlying facts as had been alleged in Rock County, except that it claimed
Flury was a resident of the City of Delavan, County of Walworth, thereby creating
a basis for venue in Walworth County.
The Walworth County Circuit Court forwarded the case to Rock County,
where the circuit court again denied Ciarpaglini leave to proceed without
paying filing fees.
On February 9, 1996,
Ciarpaglini filed the same defamation suit for the third time, but in Green
County. He alleged that Flury resided
in Monroe, creating a basis for venue in Green County. The Green County Circuit Court waived the
filing fees. On March 6, 1996, the
defendants moved to vacate the order waiving filing fees, to dismiss the complaint
for failure to state a claim, to change venue, and to award costs, alleging the
action was frivolous. Ciarpaglini
requested the substitution of Judge Deininger and the case was again assigned
to Judge Welker in Rock County.
On April 3, 1996, Judge
Welker issued an order requiring Ciarpaglini to file affidavits explaining his
basis for believing that Flury resided in Delavan or in Monroe, and listing all
funds he had received and dispersed since the December 1993 stipulation. It also ordered that no further motions or
other pleadings be filed pending Ciarpaglini’s compliance with its order.
On April 8, 1996,
Ciarpaglini filed a motion, which he dated April 3, 1996, requesting that Judge
Welker recuse himself because Ciarpaglini planned to name him as a codefendant
in an amended complaint. The motion set
forth no facts to explain any possible connection between the judge and the
defamation action. The court dismissed the action two days later, stating:
The
filing of [the recusal] motion is a disobedience of the prior order of the
court. Based upon [Ciarpaglini’s]
conduct in this case and his history of flagrant disregard of court orders, it
is apparent to this court that the plaintiff will not comply with the orders of
this court.
In
addition, the court awarded the defendants $1,221 in attorney fees, reasoning
that Ciarpaglini should have known that the lawsuit was frivolous after his
petitions to proceed in forma pauperis were twice denied for failure to
state a claim upon which relief could be granted. Ciarpaglini appeals both the order dismissing his defamation
action and the award of attorney fees.
DISCUSSION
Standard
of Review.
A circuit court has
discretionary authority to dismiss an action when a participant fails to obey
the court's orders. Johnson v.
Allis Chalmers Corp., 162 Wis.2d 261, 273, 470 N.W.2d 859, 863
(1991). We will sustain a discretionary
dismissal, “if the circuit court has examined the relevant facts, applied a
proper standard of law, and, using a demonstrated rational process, reached a
conclusion that a reasonable judge could reach.” Id.
The circuit court’s
determination that an action was frivolous presents a mixed question of fact
and law. Stoll v. Adriansen,
122 Wis.2d 503, 513, 362 N.W.2d 182, 187 (Ct. App. 1984). What a litigant knew or should have known is
a factual finding which will not be reversed unless clearly erroneous. Kelly v. Clark, 192 Wis.2d
633, 646, 531 N.W.2d 455, 459 (Ct. App. 1995).
Whether knowledge of the relevant facts would lead a reasonable litigant
to conclude that the action was without a reasonable basis in law is a question
of law to be reviewed de novo. James
A.O. v. George C.B., 182 Wis.2d 166, 184, 513 N.W.2d 410, 416 (Ct. App.
1994).
Dismissal.
The circuit court has
both statutory and inherent authority to sanction parties for failure to comply
with its orders. Johnson,
162 Wis.2d at 273-74, 470 N.W.2d at 863.
The “court has the inherent power to resort to a dismissal of an action
in the interest of the orderly administration of justice.¼
[because] general control of the judicial business before it is essential to
the court if it is to function.” Latham
v. Casey & King Corp., 23 Wis.2d 311, 314, 127 N.W.2d 225, 226
(1964). And, § 805.03, Stats., provides additional authority
for dismissal when court orders are not obeyed.
The Judicial Council
Committee's Notes to the predecessor of § 805.03, Stats., advise that “[b]ecause of the harshness of the
sanction, a dismissal under this section should be considered appropriate only
in cases of egregious conduct by a claimant.”
Once egregious conduct is shown, an aggrieved party must establish a
“clear and justifiable excuse” for the conduct in order to avoid the court’s
dismissal power. See Trispel v.
Haefer, 89 Wis.2d 725, 733, 279 N.W.2d 242, 245 (1979).
The circuit court in
this case properly exercised its discretionary dismissal authority based on
relevant facts, the proper standard of law, and a demonstrated rational
process. Whether Ciarpaglini received
the court’s order directing him to file no further motions before defying it,
is a question of fact. Ciarpaglini
claims that his recusal motion and the order precluding filing further motions
must have passed in the mail. However,
five days passed after the order’s issuance before the motion was filed. The trial court had the file and would have seen
the postmark on the envelope containing the plaintiff’s motion. It was in the best position to decide
whether the date Ciarpaglini placed on the document was accurate. Implicitly,
it found the date was not accurate. See
State v. Echols, 175 Wis.2d 653, 672, 499 N.W.2d 631, 636 (1993)
(“An implicit finding of fact is sufficient when the facts of record support
the decision of the trial court.”). In
light of the evidence suggesting that Ciarpaglini had falsified his complaint
to establish venue, and the frivolous nature of the recusal motion itself, we
cannot say that the court’s implicit finding that Ciarpaglini knowingly filed
his motion in defiance of the court’s order was clearly erroneous.
Furthermore, it was
rational for the court to conclude that Ciarpaglini’s filing of the recusal
motion represented an egregious and unjustified attempt to manipulate the
judicial process because there was an absence of any information in the record
explaining Ciarpaglini’s factual basis for naming the judge as a
defendant. Therefore, the court could
reasonably interpret the recusal motion as an attempt to avoid compliance with
the court’s prior orders. The court
properly exercised its discretion when it dismissed the case.
Attorney Fees.
The
trial court awarded attorney fees to the defendants because it determined
Ciarpaglini's defamation action was frivolous.
Under § 814.025(1), Stats.,
the circuit court shall award costs for frivolous claims commenced or continued
by a plaintiff. In order to find an
action frivolous under subsec. (1), the court must find either:
(a)
The action ¼ was
commenced, used or continued in bad faith, solely for purposes of harassing or
maliciously injuring another; [or]
(b) The party ¼ knew, or should have known, that the action ¼ 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.
Section
814.025(3), Stats. Thus, a determination that an action is meritless
is insufficient to conclude that it is frivolous. Lamb v. Manning, 145 Wis.2d 619, 628, 427
N.W.2d 437, 441 (Ct. App. 1988).
Rather:
The
statute does not allow the trial judge to conclude frivolousness or lack of it
without findings stating which statutory criteria were present, harassment or
knowledge or imputed knowledge that there was not “any reasonable basis in law
or equity” for the position taken.
Sommer
v. Carr, 99 Wis.2d 789, 792, 299 N.W.2d 856, 857 (1981).
The trial court’s order
in this case does not mention which subsection of the statute it was
applying. This court could infer that
the trial court intended to apply § 814.025(3)(b), Stats., since it found that “the plaintiff knew or should
have known based upon two prior times when he filed this same lawsuit that
there was no reasonable basis upon which he could have prevailed and that this
action is frivolous.” However, the
original denial of Ciarpaglini’s indigency fee waiver did not constitute
judgment on the merits of his defamation action. Had Ciarpaglini paid the filing fees within thirty days, his
action could have proceeded. Or, had
Ciarpaglini sought review of the Rock County order through the proper channels
instead of playing venue games, this court could have directly addressed the
sufficiency of his complaint.
The order awarding
attorney fees made no analysis of the actual merit of the defamation
action. The only discussion of the
merits of the complaint occurred in the prior orders denying the plaintiff’s
motions to waive filing fees, but these orders are insufficient to sustain the
trial court's award of attorney fees based on § 814.025(1) and (3)(b), Stats.
However, our conclusion
on the § 814.025, Stats.,
issue does not end our analysis of whether the award of attorney fees was
proper. This court “may affirm a lower
court’s decision on different grounds than those relied upon by the lower
court.” Koestler v. Pollard,
162 Wis.2d 797, 809 n.8, 471 N.W.2d 7, 12 n.8 (1991), citing Saenz
v. Murphy, 162 Wis.2d 54, 57 n.2, 469 N.W.2d 611 (1991).
Our independent review
of the record persuades us that the undisputed evidence would support the trial
court's award of attorney fees under § 802.05(1)(a), Stats.
That section provides, in part:
The
signature of a ¼
party constitutes a certificate that the ¼ party has read the pleading ¼
[and] that to the best of the ¼
party’s knowledge, information and belief, formed after reasonable inquiry, the
pleading ¼ is
well-grounded in fact ¼. If the court determines that ¼ [a]
party failed to read or make the determinations required under this subsection
before signing any [pleading] ¼ the
court may, ¼ upon
its own initiative, impose an appropriate sanction on the person who signed the
pleading ¼. The
sanction may include an order to pay to the other party the amount of
reasonable expenses incurred by that party because of the filing of the
pleading, ¼
including reasonable attorney fees.
If
any one of the three prongs[3]
of § 802.05(1)(a) has been violated, sanctions may be imposed. Riley v. Isaacson, 156 Wis.2d
249, 255, 456 N.W.2d 619, 621 (Ct. App. 1990).
We conclude that the
undisputed facts of record demonstrate Ciarpaglini’s pleadings were not
well-grounded in knowledge formed after a reasonable inquiry. They alleged that Flury resided in Monroe
and in Delavan, while her affidavit establishes that she resided in Janesville.
Ciarpaglini has provided no basis for the inconsistent allegations he made in
the three filings of his defamation action. Instead, Ciarpaglini attempted to rid himself of the judge who
was calling him to account. The record
provides sufficient evidence to conclude that Ciarpaglini knew the allegations
he made in his complaints, in regard to Flury's residence, were not
well-grounded in fact. We are satisfied
that the result reached by the trial court—an award of attorney fees—was
supported by uncontradicted evidence in the record; and therefore, we affirm
the award.
CONCLUSION
The
circuit court’s discretionary determination that Ciarpaglini’s conduct merited
dismissal was rational and based on appropriate law and facts of record. However, the court’s finding that
Ciarpaglini should have known that his defamation action was without a
reasonable basis in law because the court had previously issued an unappealed
order denying a fee waiver on that basis, was insufficient to support the
conclusion that the lawsuit was frivolous.
Nonetheless, we conclude that the award of attorney fees was a proper
sanction under § 802.05(1)(a), Stats.,
because Ciarpaglini failed to explain any basis for the inconsistent facts
which he alleged in his attempts to establish venue in three different
counties.
By
the Court—Order
affirmed.
Not
recommended for publication in the official reports.
[1] Ciarpaglini was a prisoner in the custody of the Department of Corrections at the time the complaint was filed and re-filed; however, he was confined at Waupun Correctional Institute.