COURT OF APPEALS DECISION DATED AND FILED December 9, 2009 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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Plaintiff-Respondent, v. Anne Gerard,
Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
¶1
Nov. 11, 2009), she appealed from the circuit court’s findings on frivolous
fees and costs. We rejected all of her
claims and affirmed. Now, in this appeal
from the circuit court’s rejection of her motion for relief from judgment under
Wis. Stat. §§ 806.07(1)(c)
and 806.07(1)(h), she challenges restrictions imposed on her access to the
court, claims factual findings of the court greatly distort and misrepresent
the truth causing her “great harm and detriment,” and raises many of the issues
previously litigated in Parkland I and Parkland II. We affirm.
¶2 To begin, this court incorporates the factual and procedural
histories detailed in Parkland I and Parkland II. Further, this court will not revisit any of
the issues relating to the proceedings before the Honorable Paul F. Reilly or
to the proceedings leading to the determination of frivolous costs and fees
before the Honorable Ralph M. Ramirez.[2] This court’s prior opinions are the law of
the case. The law of the case doctrine
has been defined as a “longstanding rule that a decision on a legal issue by an
appellate court establishes the law of the case, which must be followed in all
subsequent proceedings in the trial court or on later appeal.” Univest Corp. v. General Split Corp.,
148
¶3 While pursuing her appeal in Parkland II, Gerard filed a thirty-one paragraph “Motion for Relief from Order,” seeking twelve different forms of relief. She styled the motion as being brought under Wis. Stat. §§ 806.07(1)(c) and 806.07(1)(h).[3] In a terse order, the circuit court denied Gerard’s motion and issued sanctions against her. Portions of the order provided:
In Gerard’s motion filed February 12, 2009 she asks that the order be vacated for numerous reasons. Those reasons include, but are not limited to the following:
A failure to comply with the Americans with Disabilities act;
A violation of HIPPA (Health Insurance Portability and Accountability Act);
Allegations that the court acted improperly by not directly responding to her every filing;
Allegations that the court is taking actions to
enrich
Alleges that the sole cause of sanctions and costs against her are attributable to this court.
Defendant also raises various issues that were resolved at the trial court level, at, or prior to the time of the hearing on costs and attorney fees. What defendant fails to do is to raise an issue sufficiently recognizable, or with sufficient factual support, to necessitate a hearing under § 806.07.
As it relates to this case, Gerard has a history of non-compliance with court orders, prosecution of frivolous motions, reckless disregard of court orders, and fabrication of numerous allegations of inappropriate behavior by court officials without any factual basis. Furthermore, she persists in her claim of an inability to participate in court proceedings despite her repeated initiation of court proceedings, as well as her repeated and voluminous filings and notifications to court officials and administrators. Gerard unfailingly continues her pattern of prosecution of frivolous actions.
¶4 The court imposed a series of sanctions upon Gerard designed to protect the court and its staff from her vexatious conduct.
That the Clerk of Courts for Waukesha County shall no longer accept any filings or correspondence from Gerard or anyone on her behalf;
That any documents or filings that are received by mail are to be sent back to Gerard’s last known address without review by the court or clerk;
That only upon proof of payment in full ($2,538.82) to Parkland Plaza Veterinary clinic S.C., or its attorney Basil Loeb, shall any documents be accepted from Defendant Gerard.
¶5 Gerard appeals from this order asserting that the sanctions (1) are extorting money from her by withholding her access to the court until she pays the frivolous fees and costs, (2) violate her due process rights, and (3) are discriminatory. She also attacks the trial court’s findings that describe her as a vexatious litigant. She contends that the findings are unsupported by the record and are libelous.
¶6 To be entitled to relief under Wis. Stat. § 806.07(1)(c), Gerard must show a “plain
case” of misrepresentation. See Burmeister v. Vondrachek, 86
¶7 Access to the courts. An
individual has a due process right of access to the courts, Piper
v. Popp, 167
¶8 Our opinion in Parkland I details Gerard’s
vexatious filings before and after
¶9 We agree with the trial court’s finding that Gerard’s vast
and vexatious filings in this case establish Gerard has “a history of non-compliance
with court orders, prosecution of frivolous motions, [and] reckless disregard
of court orders.” A court faced with a
litigant who has engaged in a pattern of frivolous litigation has the authority
to implement a remedy that may include restrictions on that litigant’s access
to the court. Minniecheske v. Griesbach,
161
¶10 We have one minor concern with the filing restrictions imposed
upon Gerard—they are not crystal clear as to whether she is barred from filing
any documents or only documents relating to
That the Clerk of Courts for Waukesha County shall no longer accept any filings or correspondence from Gerard or anyone on her behalf related to or involving Parkland Plaza Veterinary Clinic, S.C.;
That any documents or filings that are received by mail are to be sent back to Gerard’s last known address without review by the court or clerk;
That only upon proof of payment in full ($2,538.82) to Parkland Plaza Veterinary Clinic S.C., or its attorney Basil Loeb, shall any documents be accepted from Defendant Gerard.
¶11 Gerard’s filings in this court have been as equally vexatious
and abusive in the three separate appeals she has prosecuted since
¶12 The clerk of this court is instructed to return unfiled any document
submitted by Gerard relating to any matter arising from, relating to or
involving
¶13 Court order. Gerard takes issue with a portion of the circuit court’s order:
As it relates to this case, Gerard has a history of non-compliance with court orders, prosecution of frivolous motions, reckless disregard of court orders, and fabrication of numerous allegations of inappropriate behavior by court officials without any factual basis.
She asserts that the statement is “blatantly false” and “unsubstantiated” “intended solely to malign and demean Gerard’s character and reputation.”
¶14 A trial court may impose serious sanctions, including
sanctions that limit access to the court, upon a finding of flagrant abuse of
the legal process by filing frivolous actions or motions when other more
traditional sanctions have failed. See Support Systs. Int’l Inc., 45 F.3d
186. The portion of the order which
Gerard takes offense at is a factual finding of flagrant abuse of legal
process. We affirm the circuit court’s
factual finding unless it is clearly erroneous.
Wis. Stat. § 805.17(2).
This means that we review the record to
determine whether there is any credible evidence to support the circuit court’s
finding.
¶15 Other issues. As we acknowledged in Parkland
I and Parkland II, there may be some issues left which we did not
address. We consider them to be so
without merit that they do not bear mentioning.
As the court quoted in Gerard’s previous appeal, “An appellate court is
not a performing bear, required to dance to each and every tune played on an
appeal.” State v. Waste Mgmt. of
By the court.—Order modified and, as modified, affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(a) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] Judge
Paul F. Reilly presided over the original small claims action, described in
[3] Wisconsin Stat. § 806.07 states:
Relief from judgment or order. (1) On motion and upon such terms as are just, the court … may relieve a party … from a[n] … order … for the following reasons:
….
(c) Fraud, misrepresentation, or other misconduct of an adverse party;
….
(h) Any other reasons justifying relief from the operation of the judgment.
[4] http://wcca.wicourts.gov/courtRecordEvents.xsl;jsessionid=6E84E7E85BC872342AF83ADA7C8ACEEE.render6?caseNo=2007SC001608&countyNo=67&cacheId=6D3B48570CF6D8C382021E83AA86C5D8&recordCount=1&offset=0&linkOnlyToForm=false&sortDirection=ASC (last visited Oct. 27, 2009).
[5] Limiting a litigant’s access to the court system as a sanction for vexatious and abusive litigation is used in the federal courts. We adopt the Seventh Circuit’s recent summarization of the law barring a vexatious and abusive litigant from further filings.
[T]he right of access to federal courts is not
absolute. In re Chapman,
328 F.3d [903, 905 (7th Cir. 2003)]; see
also
Chapman v. Executive Comm. of
[6] Gerard
is not barred from filing documents in the circuit court and this court
responding to any action commenced by