|
COURT OF
APPEALS DECISION DATED AND
RELEASED October
31, 1996 |
NOTICE |
|
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. 96-1804
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
W.
GEORGE BOWRING AND EDWARD J. CALLAN,
Plaintiffs-Respondents,
v.
WISCONSIN
DIVISION OF TRANSPORTATION,
Defendant,
WALTER
MERTEN,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Dodge County: JOHN R. STORCK, Judge. Affirmed.
VERGERONT,
J.[1] Walter Merten appeals from an order finding
him in contempt for failure to execute and deliver a particular check as
ordered in a judgment entered against him in favor of George Bowring and Edward
Callan and for failure to comply with an order to file a financial disclosure
statement. Merten argues that he did
not have adequate notice of the contempt proceeding, that the court lacked the
statutory authority to find him in contempt,[2]
and that it erroneously exercised its discretion in finding him in
contempt. He also challenges the award
of attorney fees. We reject each
argument and affirm.
Merten
was sued by Bowring and Callan for appraisal services they performed for him
with respect to property that the Wisconsin Department of Transportation (DOT)
proposed to acquire. DOT sent Merten a
check in the amount of $2,273 payable to him and the appraisers, but Merten
refused to negotiate the check because he believed there were deficiencies in
the appraisal report and statement for services. After a trial to the court, the court entered judgment on January
4, 1996, in the amount of $2,273 against Merten. The judgment also stated:
"Judgment to be satisfied by defendant's negotiation of check for
$2473.00 to plaintiffs. Plaintiffs to refund $200.00 to Dept. of
Transportation. No costs awarded to
either party. All counterclaims of
defendant, Walter Merten, are dismissed."
On
January 4, 1996, an order for financial disclosure and financial disclosure
statement was sent to Merten by the court.
Merten was ordered to pay the judgment in full within fifteen days of
the entry of judgment or accurately complete the financial disclosure statement
and mail or deliver it to the plaintiffs' counsel, whose name and address was
provided. This order stated: "Failure to comply with this order may
be contempt of court and subject you to the following penalties: imprisonment for up to 6 months, forfeitures
of not more than $2000 per day, any other order necessary to ensure your compliance,
punitive (criminal) sanctions under Chapter 785, Wis. Stats."
On
January 18, 1996, Merten filed a notice of appeal from the judgment.[3] On that date, he wrote to the trial court,
beginning the letter, "With
respect to the Financial Disclosure Statement, may I advise the court as
follows." Merten went on to state
that he had filed a notice of appeal; that if he paid the judgment as ordered,
he would be waiving his rights to appeal; and that he was willing to explore
with plaintiffs a way to negotiate the DOT check on certain conditions to avoid
a waiver of his appeal rights. The
court never responded to this letter.
Plaintiffs' counsel, who had been sent a copy, did respond, demanding
immediate endorsement and transmittal of the DOT check and objecting to the
proposed conditions as not authorized by the statute relating to relief pending
appeal.
There
was further correspondence from Merten to plaintiffs' counsel, in which Merten
continued to attempt to negotiate the terms on which he would comply with the
judgment. Merten also provided
plaintiffs' counsel, unsolicited, with an "Undertaking on Appeal" in
the amount of $2,500. Merten did not
ask the trial court for relief pending appeal pursuant to § 808.07, Stats.[4]
On
or about March 21, 1996, plaintiffs filed a notice of motion and motion for
execution of judgment. The notice
stated that at the hearing, Bowring and Callan would move the court for: (i) an order for issuance of an
execution of judgment under §§ 815.02 and 815.05, Stats., compelling Merten to satisfy the judgment by
negotiating and delivering the DOT check to plaintiffs; (ii) holding
Merten in contempt; and (iii) reasonable attorney fees and costs for the
preparation and prosecution of the motion.
At
the close of the hearing on Bowring's and Callan's motion, held on March 29,
1996, the trial court found that Merten wilfully failed to negotiate the DOT
check as ordered in the judgment and wilfully failed to comply with the court's
order to provide a financial disclosure statement. The court ordered that Merten give to plaintiffs' attorney by
April 4, 1996, either the DOT check duly endorsed by him or a personal
certified check in the amount of $2,273.
The court also ordered that Merten pay an additional sum of $668.19 by
April 4, 1996, representing $68.19 in interest and $600 in attorney fees
incurred by plaintiffs in bringing the motion.
The court imposed a forfeiture of $500 per day commencing on April 5,
1996, which could be purged by making all payments by April 4.
Merten
challenges both determinations of contempt on the same grounds. Because we conclude the court properly
determined that Merten was in contempt for disobeying the order to negotiate
the DOT check, we do not address the court's determination that he was also in
contempt for disobeying the financial disclosure order.
Merten
first contends that he did not have notice that, at the hearing on March 29,
1996, the court would consider his compliance with terms of the judgment. There is no merit to this contention. Bowring's and Callan's notice of motion
plainly advised Merten that they were asking the court to hold Merten in
contempt. The only reasonable
interpretation of that notice, the accompanying affidavit, and the brief in
support is they were asking the court to hold Merten in contempt for failing to
endorse and deliver the DOT check as ordered in the judgment. At the hearing Merten explained his reasons
for not doing so. He never indicated to
the court that he did not understand that would be the subject of the hearing
or that he needed a continuance to adequately respond.
Merten
next contends that, since Bowring and Callan moved for issuance of an execution
of judgment under § 815.02, Stats.,
the court had authority to determine only whether an execution of judgment
should issue and could not consider his failure to comply with a court order in
the judgment. There is no merit to this
contention, either.
Section
815.02, Stats., provides:
Judgments, enforced by execution. A judgment
which requires the payment of money or the delivery of property may be enforced
in those respects by execution. Where
it requires the performance of any other act a certified copy of the judgment
may be served upon the party, person or officer who is required to obey the
same, and if he or she refuse he or she may be punished for contempt, and his
or her obedience enforced.
(Emphasis added.)
The judgment against Merten ordered that judgment be satisfied by his
negotiation of the DOT check. This in
an act in addition to the payment of money or delivery of property. Refusal to perform this act may under §
815.02 properly result in a determination of contempt and enforcement of
obedience to the order.[5]
In
addition, under § 785.02, Stats.,
the court has the power to impose a remedial sanction for a continuing
contempt, defined to include a "disobedience, resistance or obstruction of
the authority, process or order of a court." Section 785.01(1)(b), Stats. A remedial sanction means a "sanction
imposed for the purpose of terminating a continuing contempt of
court." Section 785.01(3). Therefore, both §§ 815.02 and 785.02, Stats., provide authority for the court
to find Merten in contempt for refusing to comply with the order to negotiate
the DOT check and for imposing sanctions to bring about compliance.
Having
concluded that Merten had notice that the court would decide at the March 29
hearing whether he was in contempt for failing to negotiate the DOT check, and
that the court had the statutory authority to do so, we now consider whether
the trial court erroneously exercised its discretion in finding Merten in
contempt. We conclude it did not.
A
trial court's use of its contempt power is reviewed for an erroneous exercise
of discretion. See State
ex rel. N.A. v. G.S., 156 Wis.2d 338, 341, 456 N.W.2d 867, 868 (Ct.
App. 1990). We affirm a discretionary
determination if the court applied the correct law to the facts of record and
reached a decision that a reasonable judge would reach. Rodak v. Rodak, 150 Wis.2d
624, 631, 442 N.W.2d 489, 492 (Ct. App. 1989).
We do not overturn the court's findings of facts unless they are clearly
erroneous. Currie v. Schwalbach,
132 Wis.2d 29, 36, 390 N.W.2d 575, 578 (Ct. App. 1986), aff'd 139 Wis.2d
544, 407 N.W.2d 862 (1987).
Merten
contends that the trial court erred because a money judgment may not be
enforced by means of remedial sanctions for contempt. We will assume for purposes of argument that Merten's premise
regarding the enforcement of money judgments is correct. We nevertheless conclude that the court
could properly find Merten in contempt for disobeying the order to negotiate
the DOT check to the plaintiffs. The
judgment entered against Merten was a money judgment for the amount of $2,273
but it also contained an order that Merten satisfy the judgment by negotiating
the DOT check to the plaintiffs and an order that the plaintiffs reimburse DOT
$200. Both orders may be enforced by
contempt. See §§ 815.02 and
785.01(1)(b), Stats.
Merten
insists that the language in the judgment, "Judgment to be satisfied by
defendant's negotiation of the check ..." is not really an order but
simply gives him the option of satisfying the money judgment in this manner. That is not what the plain language says,
nor is that what the trial court intended, as the court explained in response
to this argument at the hearing on the plaintiffs' motion. Merten's claim that he did not understand
that negotiating the DOT check was the only way to satisfy the judgment is not
a defense to contempt since he did not make any payment to the plaintiffs in
lieu of negotiating the DOT check.
Merten's
explanation for not negotiating the check as ordered is that, before complying,
he was entitled to assurances from plaintiffs and/or the court that compliance
would not waive or jeopardize his right to appeal from the judgment. There is no merit to this contention. Merten is entitled to no more than the
applicable statute provides for every appellant. In the absence of a court order staying execution or enforcement
of a judgment pending appeal, the filing of an appeal does not act as a
stay. Section 808.07(1) and (2), Stats.
There is no authority for an appellant to unilaterally substitute an
undertaking for compliance with a judgment pending appeal. If a court grants a stay, the court may
condition the stay upon the filing of an undertaking. Section 808.07(3).
The
trial court had to decide whether Merten's conduct in failing to comply with
the order was a wilful refusal to obey a court order. This determination involves an assessment of Merten's intent,
motives and credibility, all matters for the trial court sitting as the trier
of fact to determine. See Gehr
v. City of Sheboygan, 81 Wis.2d 117, 121, 260 N.W.2d 30, 33
(1977). There is ample evidence to
support the trial court's determination that Merten's noncompliance with the
order was a wilful refusal. We conclude
the trial court properly exercised its discretion in determining that Merten
was in contempt for failing to negotiate the DOT check.
Merten
also challenges the award of attorney fees.
This, too, is without merit.
Merten had notice that the plaintiffs were seeking an award of fees when
they filed their motion. He did not
object at the hearing to the amount of fees requested and therefore has waived
that issue. The court had the authority
under § 785.04(1)(a), Stats.,
to order payment of a sum of money to the plaintiffs "sufficient to
compensate [them] for a loss or injury suffered by [them] as a result of a
contempt of court." Had Merten not
disobeyed the order to negotiate the DOT check, plaintiffs would not have
incurred attorney fees to enforce that order.
The amount ordered for attorney fees, and the interest, are well within
the court's authority.
By
the Court.—Order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[2] Under one argument heading, challenging the
court's "jurisdiction," Merten argues both that he did not have
notice and that the court did not have the authority to do what it did. We discuss and decide these as separate
issues.
[3] We affirmed the judgment against Merten. Bowring and Callan v. Wisconsin
Division of Highways and Transportation and Merten, Case No 96-0246
(Ct. App. Sept. 30, 1996). Because many
of the documents related to the contempt proceeding following the judgment are
contained in the record of Case No. 96-0246, we order that the record for that
appeal be transferred to this appeal.
[4] Section 808.07(1) and (2), Stats., provide in part:
(1) Effect of appeal. An appeal does not stay the execution or
enforcement of the judgment or order appealed from except as provided in this
section or as otherwise expressly provided by law.
(2) Authority of a court to grant relief pending
appeal. (a) During the pendency
of an appeal, a trial court or an appellate court may:
1. Stay execution or enforcement of a judgment
or order[.]