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COURT OF APPEALS DECISION DATED AND RELEASED July 05, 1995 |
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. 94-1900
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
JUDY HAGNER,
Plaintiff-Appellant,
v.
HERBERT USOW,
JODY USOW and
ROBERT SHERRY,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Milwaukee County: THOMAS P. DOHERTY, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER CURIAM. Judy Hagner, pro se, appeals from an
order dismissing her action for failure to state a claim. She argues that the trial court erred
because her pleadings did state a cause of action. Her pro se complaint sought recovery of monetary damages
from her former attorney, Herbert Usow, and two other members of his firm,
Robert Sherry and Jody Usow (collectively, Usow). The trial court granted the motion for dismissal, concluding
that: (1) “the pleadings [were] unintelligible and ... d[id] not constitute an
appropriate cause of action;” and (2) Hagner “failed to appear in
opposition to the motion” to dismiss.
Additionally, Usow petitions this court to issue an order awarding
frivolous appellate costs and fees pursuant to § 809.25, Stats.
We affirm because the
trial court correctly concluded that Hagner's complaint failed to state a claim
upon which any relief could be granted.[1] Further, we deny Usow's motion for frivolous
costs.
Hagner retained Usow and
his law firm for an initial retainer fee of $300 to represent her in an action
to overturn a temporary restraining order.
Subsequent to a court appearance, Usow was “fired” by Hagner for what Hagner
alleges was “insubordination” because the firm “REFUSED TO RESCEND,[sic]
VACATE, VOID OUT TRO AND COURT INJUNCTION ORDER OF HARRASMENT [sic].” (Upper casing in original.) Hagner later filed for bankruptcy and for
fee arbitration through the Milwaukee Bar Association to determine the
disposition of the $300 retainer.
Hagner filed suit naming
Herbert Usow, Robert Sherry, and Jody Usow as defendants. In her complaint, Hagner sought: (1) a
refund of the $300 retainer fee; (2) $40 million, plus interest, for “PAIN AND
SUFFERING UNDUE HARDSHIP AND INTENT TO HARM” her; (3) “CONTEMPT OF COURT
CHARGES” FOR $1,000; (4) “VOID OUT ROBERT SHERRY [sic] LAW LICENSE.” (Upper casing in original.) She additionally alleges that she was
physically assaulted by Herbert Usow and Robert Sherry after the fee
arbitration hearing.
“Whether a claim for
relief exists is a question of law which this court reviews independently,
without deference to the circuit court.”
Paskiet v. Quality State Oil Co., 164 Wis.2d 800, 805, 476
N.W.2d 871, 873 (1991). “In determining
whether a claim for relief has been stated the facts as alleged in the
complaint must be accepted as true.” Id. Further, the “`complaint must be liberally
construed to do substantial justice and, if reasonably possible, construed to
state a cause of action.'” Id.
(citation omitted). “`We will affirm an
order dismissing a complaint for failure to state a claim only if, upon review
of the allegations contained therein, it appears to a certainty that no relief
can be granted under any set of facts which plaintiffs could prove in support
of them.'” Id. (citation
omitted).
Even giving Hagner's
complaint the liberal construction to which it is entitled, we are unable to
conclude that it states a cause of action.
The trial court properly characterized the pleadings as
“unintelligible.” Hagner's complaint is
a series of disjointed, garbled, and incomprehensible allegations. She provides no coherent basis for a cause
of action, nor does she provide sufficient facts, that, if taken as true, would
support any alleged causes of action. See
id. The trial court
properly granted Usow's motion to dismiss.
Usow moves this court
for frivolous costs upon this appeal.
Section 809.25(3), Stats.,
provides that an award of costs shall be made if an appeal is found to be
frivolous. Subsection (3)(c) provides:
(c) In order to
find an appeal or cross-appeal to be frivolous under par. (a), the court must
find one or more of the following:
1. The appeal or
cross-appeal was filed, used or continued in bad faith, solely for purposes of
harassing or maliciously injuring another.
2. The party or
the party's attorney knew, or should have known, that the appeal or
cross-appeal 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.
This court decides the
question of frivolousness de novo when we conclude that no findings of
fact are necessary for resolution of the issue. Vierck v. Richardson, 119 Wis.2d 394, 399, 351
N.W.2d 169, 172 (Ct. App. 1984). Usow
argues that because Hagner's complaint failed to set forth a basis for relief,
as determined by the trial court, her appeal is, ipso facto, solely for
the purpose of harassment and indicative of bad faith. In their brief and motion to this court,
Usow fails to cite any authority to support their position. See Rule
809.19(1)(e), Stats. The brief contains no cite to the
record. See id. It contains no statement referencing either
oral argument or whether the opinion should be published. See Rule
809.19(1)(c), Stats. Under these circumstances, we decline to
consider the motion. Rule 809.83(2), Stats.
(noncompliance with rules is grounds for dismissal); see also Grosskopf
Oil, Inc. v. Winter, 156 Wis.2d 575, 586, 457 N.W.2d 514, 519 (Ct. App.
1990) (we may dispose of arguments summarily if they are not developed in the
briefs). Accordingly, the motion for
appellate costs is denied.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.