COURT OF APPEALS DECISION DATED AND RELEASED August 29, 1995 |
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. 95-0199
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
DAVID M. IUSHEWITZ,
Plaintiff-Respondent,
v.
MILWAUKEE COUNTY
PERSONNEL
REVIEW BOARD,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
PATRICK J. MADDEN, Judge. Affirmed
and cause remanded with directions.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. The Milwaukee County Personnel Review Board
appeals from a mandamus judgment directing the Board to reconsider the five and
one-half month suspension it imposed on David M. Iushewitz, and to
substantially reduce the length of his suspension. The Board claims the trial court erroneously exercised its
discretion in granting Iushewitz's writ of mandamus for the following
reasons: (1) because the elements
necessary for granting mandamus were not present; (2) because laches bars
the claim; or (3) because claim preclusion bars the mandamus action.[1] Iushewitz contends that the Board's appeal
is frivolous and seeks appeal costs, fees, and attorney fees. Because the trial court did not erroneously
exercise its discretion in granting the mandamus writ, we affirm the
judgment. Because the Board's appeal is
frivolous, we grant Iushewitz's motion seeking appeal costs, fees, and attorney
fees. We remand this case to the trial
court for a hearing to determine the amount of Iushewitz's appeal costs, fees,
and reasonable attorney fees.
I. BACKGROUND
Iushewitz is a deputy
sheriff sergeant of the Milwaukee County Sheriff's Department. On November 13, 1987, a complaint was
brought against Iushewitz alleging several instances of misconduct. After hearings before the Board, the Board
determined Iushewitz had committed only one of the instances of misconduct;
that is, he failed to obey a superior's order to return some computer
software. As a sanction for the misconduct,
the Board imposed a five and one-half month suspension without pay.
In March 1989, Iushewitz
commenced a certiorari action in circuit court against the Board challenging
the sanction.[2] In January 1991, the circuit court affirmed
the Board's determination that Iushewitz committed misconduct, but remanded to
the Board because the sanction imposed was too harsh. On remand, the Board again imposed a five and one-half month
suspension. Iushewitz again sought
relief from the circuit court, but did not file a new writ of certiorari. Despite the absence of another writ of
certiorari, the circuit court concluded that it had jurisdiction and issued an
order instructing the Board to impose a suspension not exceeding ninety
days. The Board appealed to this court
challenging the circuit court's jurisdiction.
We concluded that the circuit court did not have jurisdiction. See Iushewitz v. Milwaukee County
Personnel Review Bd., No. 91-2171, unpublished slip op. at 3 (Wis. Ct.
App. April 27, 1992).[3] Our decision was affirmed by our supreme
court. See Iushewitz v.
Personnel Review Bd., 176 Wis.2d 706, 500 N.W.2d 634 (1993). The supreme court also held that “[a] party
seeking to enforce a mandate of a court may institute a separate action for a
writ of mandamus.” Id. at
711, 500 N.W.2d at 636.
In accord with this
instruction from our supreme court, Iushewitz filed a separate action seeking a
writ of mandamus to compel the Board to comply with the circuit court order
requiring the Board to impose a shorter suspension. The trial court entered judgment granting the writ of mandamus,
ordering the Board to impose a suspension that is “substantially” shorter than
five and one-half months.[4] The Board appeals from this judgment.
II. DISCUSSION
A. Granting
of Mandamus Judgment.
“In reviewing a mandamus
action, ‘the action of a trial judge in either granting or denying the writ
will be affirmed’ unless the judge erroneously exercised discretion.” Keane v. St. Francis Hosp.,
186 Wis.2d 637, 645, 522 N.W.2d 517, 520 (Ct. App. 1994). We will not find an erroneous exercise of
discretion if the trial court applied the relevant facts to the applicable law
and reached a reasonable conclusion. Hartung
v. Hartung, 102 Wis.2d 58, 66, 306 N.W.2d 16, 20-21 (1981).
The relevant facts are
undisputed. On the initial writ of
certiorari, the circuit court concluded that the five and one-half month
suspension was too harsh. Upon remand,
the Board refused to shorten the suspension.
In other words, the Board refused to comply with a mandate from the
circuit court. Applying these facts to
the applicable law, the trial court reasonably concluded that granting the
mandamus action was appropriate. The
law governing these actions provides that a writ of mandamus should be granted
when: “(1) the writ is based on a clear, specific legal right which is
free from substantial doubt; (2) the duty sought to be enforced is
positive and plain; (3) substantial damage will result if the duty is not
performed; and (4) there is no other adequate remedy at law.” Iushewitz, 176 Wis.2d at 711,
500 N.W.2d at 636. The mandamus law
further qualifies that in addition to the four factors, there must be no laches
and no special reasons to refuse to grant the writ. Keane, 186 Wis.2d at 646, 522 N.W.2d at 520. The Board apparently concedes factors (1),
(3) and (4), but argues that the duty sought to be enforced was neither plain
nor positive.[5] The Board also argues that laches bars the
action and special reasons exist to deny the writ.
1. Plain or
positive duty.
The Board argues that
the duty sought was not plain or positive because the circuit court's original
order did not clearly instruct the Board to reduce the length of the
suspension. The Board claims that it
was not clear whether the order required a decrease or an increase in the
suspension time. The trial court's
order specifically states that “punishment of a five and one-half (5 1/2) month
suspension without pay is unreasonable under the facts as established in the
record.”
We reject the Board's
claim. Within the context of this case,
such a finding obviously implies that the five and one-half month suspension is
unreasonably long and must be reduced.
We conclude, therefore, that the trial court's order was clear—the
directive to the Board on remand was to impose a shorter suspension.
2. Laches.
The trial court also
concluded that laches did not bar Iushewitz's claim. We agree. Laches acts as
a defense to a mandamus action when there is an “unreasonable delay, lack of
knowledge on the part of the party asserting the defense that the other party
would assert the right on which he bases his suit, and prejudice to the party
asserting the defense.” Watkins
v. Milwaukee County Civil Service Comm'n, 88 Wis.2d 411, 422, 276
N.W.2d 775, 780 (1979). The delay in
the instant case does not satisfy the laches standard. Although the bare dates seem to support the
Board's claim that the delay between the January 1991 order and the March 1994
mandamus action constitutes laches, a closer look demonstrates otherwise. As correctly noted by the trial court, the
delay here “was brought about by the various appeals that took place here,
[and] the uncertainty as to proper remedy, which has now been absolutely
clarified by the Supreme Court of Wisconsin.”
We agree that the delay was not an unreasonable one. Further, any claim by the Board that it lacked
knowledge would be incredulous as would any claim that the delay prejudiced
the Board.
The record amply
demonstrates that Iushewitz intended to challenge his suspension since the
charges were issued in November 1987.
Iushewitz has asserted his rights before the Board, the circuit court,
the court of appeals, and the supreme court.
The Board has knowingly taken part in the case before the various
courts. Therefore, lack of knowledge,
is not a consideration in this case.
The Board frames its
prejudice argument in terms of “special circumstances” that exist to justify
denying the mandamus request. According
to the Board, these “special circumstances” that justify precluding a grant of
mandamus are because “there is no doubt that the actions of the [Board] have
been upheld and confirmed both ... at the trial court and by the appellate
courts.” The Board's belief that any of
the courts that have been involved in this case “upheld” the punishment imposed
by the Board is preposterous. The only
action of the Board that was affirmed involved the conclusion that Iushewitz
had engaged in one instance of misconduct.
3. Claim
Preclusion.
The Board also claims
that the mandamus action is barred by claim preclusion. The Board incredulously asserts that the mandamus
action was improper because “Iushewitz's cause of action ... [had already] been
litigated to conclusion before the supreme court.” The Board is wrong. The
issue litigated to conclusion before the supreme court was whether the circuit
court that initially reviewed the decision would continue to have jurisdiction
absent another writ of certiorari. Iushewitz,
176 Wis.2d at 709, 500 N.W.2d at 635.
Our supreme court did not affirm the Board's five and one-half month
suspension. Id. at
708-11, 500 N.W.2d at 635-36. Rather,
it noted the Board's “blatant” disregard of the circuit court's order
instructing the Board to reduce the length of the suspension. Id. at 711, 500 N.W.2d at
636. Accordingly, the Board's claim
that claim preclusion bars the mandamus action is wholly without merit.
B. Frivolous
Appeal.
Iushewitz filed a motion
with this court seeking attorney fees and costs on the basis that the Board's
appeal is frivolous. We grant his
motion and remand to the trial court for a hearing to determine what appeal
costs, fees, and reasonable attorney fees should be awarded.[6]
Whether an appeal is frivolous presents a
question of law. Stern v.
Thompson & Coates, Ltd., 185 Wis.2d 221, 241-42, 517 N.W.2d 658,
666 (1994). An appeal is frivolous
under § 809.25(3), Stats.,
if it is pursued even though the party or the party's attorney knew, or should
have known, that the appeal was without any reasonable basis in law or
equity. Id. We conclude that the Board and its attorney
knew or should have known that this appeal was without basis. As discussed above, the Board's claim that
the circuit court's original order was unclear is preposterous. The laches and claim preclusion arguments
are meritless as well. The clear lack
of merit of the Board's argument does not even warrant further discussion.
Accordingly, we grant
Iushewitz's motion seeking appeal costs, fees, and attorney fees on the basis
that this appeal was frivolous. We
remand the case to the trial court for a hearing to determine and assess Iushewitz's
reasonable appeal costs, fees, and attorney fees in this action. Stern, 185 Wis.2d at 253-54,
517 N.W.2d at 670-71.
By the Court.—Judgment
affirmed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] We note that the Board's argument refers to res judicata. Our supreme court, however, has chosen to replace this term with the term claim preclusion. See Northern States Power Co. v. Bugher, 189 Wis.2d 541, 549-50, 525 N.W.2d 723, 727 (1995). Accordingly, we use the term claim preclusion within the text of this opinion.
[2] The Honorable Russell W. Stamper presided over Iushewitz's first writ of certiorari as well as his subsequent appeal to the circuit court.
[3] Our review of the
transcripts in this case revealed that there was some confusion regarding
citing unpublished opinions. For
purposes of clarification, we direct the parties' attention to
§ 809.23(3), Stats., which
provides:
Unpublished opinions not cited. An unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority, except to support a claim of res judicata, collateral estoppel, or law of the case.
[5] We conclude that the Board concedes the other three factors because its brief addresses only the plain/positive factor.
[6] Iushewitz also requested the trial court to find that the Board's defense at the trial court level was frivolous pursuant to §§ 802.05 and 814.025, Stats. He notes, however, that the trial court did not have an opportunity to rule on this issue because the appeal was taken. Accordingly, on remand, we instruct the trial court to also consider whether the Board's defense at the trial court level was frivolous.