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COURT OF APPEALS DECISION DATED AND RELEASED October 3, 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. 95-0734
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IRVING G. WENZEL and
MARJORIE E. WENZEL,
Plaintiffs-Respondents-
Cross Appellants,
v.
WASHBURN COUNTY,
Defendant-Appellant-
Cross Respondent,
JOHN SABBATH, AN
INDEPENDENT
CO-EXECUTOR OF THE
ESTATE OF
GAIL G. BONNESON, LEON
SKUBINNA, AS
INDEPENDENT
CO-EXECUTOR OF THE
ESTATE OF
GAIL G. BONNESON and
DAVID
WIEST,
Defendants.
APPEAL and CROSS APPEAL
from a judgment of the circuit court for Washburn County: WARREN E. WINTON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Washburn County appeals
a judgment ordering it to pay the respondents' attorney fees and costs because
the county corporation counsel failed to conduct a reasonable inquiry under §
802.05, Stats., before answering
the respondents' complaint. The County
contends that corporation counsel's actions did not constitute a violation of §
802.05 because his inquiry was reasonable and the answer was appropriate. On cross appeal, the respondents contend
that the trial court erroneously exercised its discretion by disallowing fees
and costs attributable to depositions of county employees. Because we conclude the trial court did not
err when it concluded that corporation counsel failed to conduct a reasonable
inquiry before answering the complaint or when it disallowed fees and costs
associated with the depositions, we affirm the judgment.
Irving and Marjorie
Wenzel own lot 25 of block 2, Belvidere Park section 20, township 38 North,
range 10 West, which is a lot along the shore of Long Lake where they built
their vacation home. The home was built
on a portion of the adjacent lot (lot 24 of block 2 of Belvidere Park), which
was owned by Gail Bonneson and subsequently by his estate. This encroachment was on 18.76 feet of lot
24 and had existed for a sufficient period of time to enable the Wenzels to
claim title by adverse possession.
When the owner of lot 24
failed to pay real estate taxes, the County took a tax deed. Approximately two months after the County
took the tax deed, the Wenzels showed the County a survey as proof of adverse
possession and demanded the tax deed be amended to reflect their
ownership. A month later, lot 24 was
sold at the County sheriff's sale without amending the tax deed. The Wenzels subsequently filed a complaint
against the County seeking to set aside the sheriff's sale of lot 24 and to set
aside and declare the tax deed null and void because the County failed to give
them proper notice under § 75.12, Stats.[1]
Paragraph
13 of the complaint alleged that the Wenzels occupied their dwelling on lot 24
during the six months immediately preceding the date of application for a tax
deed and had actually occupied the home for thirty days prior to the date of
the issuance and service of the notice of application for a tax deed. Paragraph 31 of the complaint alleged that
the Wenzels had shown the County a survey of the property, which documented the
plaintiffs' "occupancy in adverse possession of lot 24 of the first
addition of Belvidere Park."
The County answered
paragraph 13 of the complaint by stating that the County did not have adequate
information upon which to either admit or deny the allegations. Further, the County denied paragraph 31 and
affirmatively alleged that the survey was unrecorded and that the proper
description of the property was lot 25 of block 2, Belvidere Park.
The trial court granted
the Wenzels' motion for summary judgment, finding that the tax deed was void
because the Wenzels were occupants of the lot and the County had not given them
proper notice under § 75.12, Stats. The court subsequently awarded the Wenzels
attorney fees and costs under § 802.05, Stats.,
because corporation counsel failed to conduct a reasonable inquiry to determine
that the answer was well grounded in fact before answering the complaint and
because the answer was not warranted by existing law nor a good faith argument
for the extension, modification or reversal of existing law. The court ordered an assessment of costs 50%
against corporation counsel and 50% against Washburn County.
Section 802.05(1)(a), Stats., provides:
Every
pleading, motion or other paper of a party represented by an attorney shall
contain the name ... of the attorney ....
The signature of an attorney ... constitutes a certificate that the
attorney or party has read the pleading ... that to the best of the attorney's
... knowledge, information and belief,
formed after reasonable inquiry, the pleading ... is
well-grounded in fact and is warranted by existing law or a good faith argument
for the extension, modification or reversal of existing law; and that the
pleading ... is not used for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of litigation. ... If
the court determines that an attorney ... failed to read or make the
determinations required under this subsection before signing any petition,
motion or other paper, the court may, upon motion or upon its own initiative,
impose an appropriate sanction on the person who signed the pleading ... or on
a represented party, or on both. 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 ... including reasonable attorney fees. (Emphasis added.)
Section 802.05(1)(a), Stats., is composed of three
prongs. Riley v. Isaacson,
156 Wis.2d 249, 256, 456 N.W.2d 619, 621 (Ct. App. 1990). First, the attorney certifies that the paper
was not interposed for any improper purpose.
Id. Second, the
attorney certifies that after reasonable inquiry the paper is well grounded in
fact. Id. Third, the attorney certifies that after
reasonable inquiry "the paper is warranted by existing law or a good faith
argument for a change in it." Id. Sanctions must be imposed if any of these
prongs are violated. Id.
at 256, 456 N.W.2d at 621-22.
We review a
determination of whether an attorney violated § 802.05(1)(a), Stats., under a deferential
standard. Gardner v. Gardner,
190 Wis.2d 217, 248, 527 N.W.2d 701, 712 (Ct. App. 1994). Determining how much investigation is
necessary to constitute "reasonable inquiry" under § 802.05(1)(a) is
a matter within the trial court's discretion.
Riley, 156 Wis.2d at 256, 456 N.W.2d at 622; see also
Gardner, 190 Wis.2d at 248, 527 N.W.2d at 712. We will affirm the trial court's
discretionary decision as long as the court examined the relevant facts,
applied a proper standard of law and reached a conclusion that a reasonable
judge could have reached. Riley,
156 Wis.2d at 256, 456 N.W.2d at 622.
We are bound by the trial court's findings of fact unless they are
clearly erroneous. Section 805.17(2), Stats.
The trial court
concluded that corporation counsel, in answering paragraphs 13 and 31 of the
complaint, did not make a reasonable inquiry to determine the answer was well
grounded in fact before signing it.
Corporation counsel contends that his inquiry was reasonable because he
was advised that a survey was needed to determine occupancy and he ordered a
survey approximately two weeks after the complaint was filed and it was not
finished until three months later.
However, the trial court found that corporation counsel should have been
put on notice of the claimed occupancy, when the Wenzels represented to the
County that they had occupied and adversely possessed a portion of lot 24 and
provided corporation counsel with the survey over two months before he filed
the answer and before the sheriff's sale.
Accordingly, the trial court found that corporation counsel should have
arranged for an inspection of the premises when he was put on notice, and if
corporation counsel determined that an additional survey was needed to
determine occupancy, he should have had the survey completed before signing the
answer.
Corporation counsel
further contends that he was not sure of the validity of the survey referenced
in paragraph 31 of the complaint because he thought the rectangle indicating
the home was drawn in by someone other than the surveyor. However, the trial court determined that he
could have easily contacted the county surveyor who had conducted the Wenzels'
survey, although not in his official capacity, to determine the validity of the
survey.
After considering the
relevant facts before it and applying the proper law, the trial court
reasonably concluded that the County's answer was made without a reasonable
inquiry to determine whether it was well grounded in fact. A reasonable person would expect counsel to
inquire whether the Wenzels had occupied and adversely possessed the land when
he was put on notice of the claim over two months before he filed the answer
and before the sheriff's sale.
Therefore, we conclude that the trial court did not abuse its discretion
in determining that corporation counsel violated the second prong of
§ 802.05(1)(a), Stats., and
that sanctions were appropriate.
Corporation counsel
further contends that the answer was warranted by existing law because reading
§§ 75.12 and 75.114, Stats.,
together indicate that unnoticed adverse possession claims survive the tax deed
process. Because we conclude that the
trial court did not erroneously exercise its discretion in determining that the
second prong of § 802.05(1)(a), Stats.,
was violated and that sanctions were appropriate, we need not address this
issue. See Gross v.
Hoffman, 227 Wis 296, 300, 277 N.W. 663, 665 (1938) (only dispositive
issue need be addressed).[2]
On cross appeal, the
Wenzels contend that the trial court erred by not awarding them costs and fees
associated with the depositions of county employees they claim were necessary
to prove the § 802.05, Stats.,
violation. The trial court's award of
attorney fees and costs will be upheld unless the court erroneously exercised
its discretion. Michael A.P. v.
Solsrud, 178 Wis.2d 137, 153, 502 N.W.2d 918, 923 (Ct. App. 1993).
The trial court, after
considering the evidence and reviewing the case file, concluded that the
depositions were superfluous and therefore denied the fees and costs
attributable to them. The trial court
considered appropriate factors, and we see no error in its determination that
the depositions were superfluous.
Because we conclude that
the trial court did not erroneously exercise its discretion by finding that
corporation counsel did not conduct a reasonable inquiry before answering the
complaint or by disallowing fees and costs associated with the depositions of
county employees, we affirm the trial court's judgment.
By the Court.—Judgment
affirmed. No costs on appeal.
Not recommended for
publication in the official reports.
[1] Section 75.12, Stats., provides in part:
(1) No tax deed shall be issued on any ... land ... unless ... notice ... shall have been served upon ... one of the owners of record .... If such lot ... be improved by a dwelling house ... and ... such building has been actually occupied for the purpose specified for 30 days immediately prior to the date of service of the notice of application for tax deed ... then notice of application for tax deed shall be served upon the occupant ....