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COURT OF APPEALS DECISION DATED AND RELEASED July 17, 1996 |
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. 95-1498
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
JAMES P. ZIENTEK and
CAROL A. ZIENTEK,
Plaintiffs-Appellants-
Cross Respondents,
v.
ROBERT C. SMITH and
COLLEEN M. SMITH,
Defendants-Third Party Plaintiffs-
Respondents-Cross Appellants,
v.
HINZE &
ASSOCIATES, INC.,
and DAVID C. HINZE,
Third Party Defendants-
Cross Respondents.
APPEAL and CROSS-APPEAL
from a judgment and an order of the circuit court for Sheboygan County: JOHN B. MURPHY, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Snyder, JJ.
PER
CURIAM. James P. and Carol A. Zientek appeal from an order
dismissing several of their claims against Robert C. and Colleen M. Smith on
the grounds that a prior judgment regarding a disputed thirty-one feet of
property along the boundary between the parties' properties was res judicata
and that an affidavit of correction filed by the surveyor had no impact on
the prior judgment.[1] The Smiths cross-appeal from a judgment
dismissing their third-party complaint against David C. Hinze and Hinze &
Associates, Inc. on the grounds that while Hinze was negligent in failing to
accurately survey the Smiths' property (resulting in a thirty-one foot
discrepancy), the limitations period barred recovery and the Smiths had not
established by satisfactory evidence that Hinze violated § 706.13, Stats. (slander of title) by filing an
affidavit correcting the survey in June 1992 after the trial court ruled in the
Zientek-Smith action that the Zienteks had not established their entitlement
under the then-existing survey to the disputed thirty-one feet. The Smiths also challenge the trial court's
refusal to award them statutory costs after the last of the Zienteks' claims
were dismissed.
Because we agree with
the circuit court that the prior judgment is res judicata on the question of
the owner of the disputed thirty-one feet, we affirm the order dismissing the
Zienteks' claims. Because we conclude
that the trial court's factual findings regarding the Smiths' slander of title action
against Hinze are not clearly erroneous, that the trial court correctly
determined that the Smiths' negligence claims against Hinze and Hinze &
Associates were barred on limitations grounds and properly declined to award
statutory costs to the Smiths after the Zienteks dismissed their remaining
claims in order to commence an appeal, we affirm on the cross-appeal.
The Zienteks and the
Smiths have been litigating their interests in a thirty-one foot strip of
property since discovering in 1990 a surveying error regarding the boundary
between their properties. The Zienteks
sued the Smiths in 1991 seeking a declaration of their rights to the disputed
property after the Smiths moved a fence thirty-one feet onto what the Zienteks
believed was their property. The Smiths
moved their fence after learning in 1990 that a survey was erroneous and that
their property should extend another thirty-one feet into the Zienteks'
backyard. In findings of fact,
conclusions of law and judgment entered on May 27, 1992, the trial court held
that the Zienteks had failed to establish by the requisite burden of proof that
they were entitled to prescriptive rights in the disputed property and
dismissed the Zienteks' complaint. We
affirmed. Zientek v. Smith,
No. 92-1606, unpublished slip op. (Wis. Ct. App. Jan. 13, 1993).
After entry of the May
1992 judgment, David Hinze, the surveyor who was involved in the erroneous
survey, filed an affidavit of correction pursuant to § 236.295, Stats., reestablishing the lot line
consistent with where it should have been when the survey was first done. After the affidavit of correction was filed,
the Zienteks sued the Smiths in May 1993 to have their rights to the thirty-one
feet declared by virtue of the affidavit of correction. The Zienteks contended that the affidavit
located the boundary at the point relied upon by the parties prior to the
relocation of the Smiths' fence.
The trial court ruled
that when it denied the Zienteks' claim to the disputed property in May 1992,
it necessarily and implicitly determined that the property belonged to the
Smiths.[2] Therefore, the Zienteks' subsequent attempt
to litigate rights to the property was barred on res judicata grounds. The court further held that the fact that
Hinze had filed an affidavit of correction subsequent to the May 1992 judgment
did not have any impact on the court's previous judgment. In December 1993, the Smiths filed a
thirty-party complaint against Hinze and Hinze & Associates alleging
intentional or, in the alternative, negligent conduct in the creation of the
survey and slander of title for filing an affidavit of correction after the
court determined in May 1992 that the thirty-one feet belonged to the Smiths.[3]
On appeal, the Zienteks
argue that the court erroneously dismissed their claim on res judicata
grounds. In Northern States Power
Co. v. Bugher, 189 Wis.2d 541, 525 N.W.2d 723 (1995), our supreme court
adopted the term "claim preclusion" to replace the term "res
judicata." Id. at
550, 525 N.W.2d at 727. Under claim
preclusion, "a final judgment is conclusive in all subsequent actions
between the same parties or their privies as to all matters which were
litigated or which might have been litigated in the former
proceedings." Id.
(quoted source omitted). "[C]laim
preclusion is designed to draw a line between the meritorious claim on the one
hand and the vexatious, repetitious and needless claim on the other
hand." Id. (quoted
source omitted).
In
order for the earlier proceedings to act as a claim-preclusive bar in relation
to the present suit, the following factors must be present: (1) an identity between the parties or their
privies in the prior and present suits; (2) an identity between the causes of
action in the two suits; and (3) a final judgment on the merits in a court of
competent jurisdiction.
Id. at
551, 525 N.W.2d at 728. Whether claim
preclusion applies under a given set of facts is a question of law which we
review independently. Id.
The parties in the
1991-92 Zientek-Smith action and the parties in the present (1993) action are
identical. The May 1992 judgment was
entered on the merits in a court of competent jurisdiction. Therefore, our analysis focuses on whether
there is an identity between the causes of action asserted in the two suits
brought by the Zienteks.
Wisconsin uses a
transactional approach to determine whether two suits involve the same cause of
action. Id. at 553, 525
N.W.2d at 728. "[I]f both suits
arise from the same transaction, incident or factual situation, claim
preclusion generally will bar the second suit." Id. at 554, 525 N.W.2d at 729 (quoted source
omitted). In the first action, the
Zienteks sought a declaration of rights with regard to the disputed thirty-one
feet of property. They were
unsuccessful in that suit. After the
surveyor filed an affidavit of correction allegedly realigning the property
boundary consistent with the parties' understanding prior to 1990, the Zienteks
sought to enforce their rights based upon the altered public record.
"[T]he
transactional view of claim preclusion requires the presentation in the action
of all material relevant to the transaction without artificial confinement to
any substantive theory or kind of relief ...." Id. at 555, 525 N.W.2d at 729 (quoted source
omitted). If there are a number of
theories or approaches which may support a party's claim to relief arising from
the same factual underpinnings, they must be brought in the same action or be
barred from future consideration. Id.
The error in the survey
was known or capable of being known at the time the Zienteks commenced their
1991 action seeking a declaration of rights in the disputed strip of
property. When the Smiths discovered
the survey error and moved their fence onto what the Zienteks perceived to be
their property, the Zienteks were on notice that the Smiths asserted a claim to
the property. Because the basis for the
Smiths' claim to the property was discoverable in the first action and could
have been the subject of further investigation, we conclude that the issue
could have been fully litigated in that case.
We discern nothing which would have prevented the Zienteks from fully
litigating in the first action the location of the true boundary between their
property and the Smiths' property.
We conclude that claim
preclusion is satisfied here, and the circuit court did not err in dismissing
the Zienteks' second attempt to assert their rights to the disputed thirty-one
feet of property, regardless of subsequent developments involving the filing of
an affidavit of correction.
We now turn to the
cross-appeal arising from the dismissal of the Smiths' third-party complaint
and the trial court's refusal to award the Smiths statutory costs after the
Zienteks dismissed their remaining claims to commence an appeal.
After a bench trial, the
court found that the error in the certified survey map was discovered in 1990
and related to the erroneous placement of the boundary markers, resulting in an
approximate thirty-one foot discrepancy.
When the Smiths learned of the error, they moved their fence an
additional thirty-one feet into the Zienteks' backyard. The court found that the surveyor, an
employee of Hinze & Associates, negligently made the survey and that such
negligence could be imputed to Hinze & Associates. Nevertheless, the court concluded that the
limitations period for pursuing the surveyor had expired, and therefore the
corporation could not be held vicariously liable.
On the question of
slander of title under § 706.13, Stats.,
resulting from Hinze's filing of an affidavit of correction, the court noted
that in order for there to be liability, Hinze had to know that the affidavit
was false, sham or frivolous. The court
found that there was no clear, satisfactory and convincing evidence of this.[4]
Slander of title is
addressed in § 706.13(1), Stats.,
which provides in pertinent part:
[A]ny
person who submits for filing, docketing or recording ... any other instrument
relating to the title in real or personal property, knowing the contents or any
part of the contents to be false, sham or frivolous, is liable in tort to any
person interested in the property whose title is thereby impaired ....
Where the trial court
acts as the finder of fact, it determines the weight of the evidence and the
credibility of the witnesses, and we will not overturn those findings unless
they are clearly erroneous. See Micro-Managers,
Inc. v. Gregory, 147 Wis.2d 500, 512, 434 N.W.2d 97, 102 (Ct. App.
1988). The court found that Hinze
believed that his affidavit was necessary to correct the erroneous survey. The court found that while Hinze was
probably wrong in filing the affidavit and relying on legal advice to do so, he
did not have the requisite level of knowledge that the affidavit was false,
sham or frivolous. This finding is not
clearly erroneous and is therefore sustained on appeal.[5]
The Smiths next argue
that their negligence claim against Hinze was not barred by the statute of
limitations. The trial court ruled that
§ 893.37, Stats.,
applied. That statute states: "No action may be brought against an
engineer or any land surveyor to recover damages for negligence, errors or
omission in the making of any survey nor for contribution or indemnity related
to such negligence, errors or omissions more than 6 years after the completion
of a survey."
The trial court found
that the survey was completed by January 2, 1980, and Hinze was negligent in
failing to accurately survey the Smiths' property. However, the court concluded that § 893.37, Stats., barred any recovery against
Hinze personally. The court further
concluded that where the limitations period bars recovery against the employee,
the employer (Hinze & Associates) cannot be liable under respondeat
superior.[6]
We agree with the trial
court's analysis. The Smiths pled
negligence. Therefore, the limitations
period of § 893.37, Stats.,
applied.
The Smiths argue that
the "discovery rule" of Hansen v. A. H. Robins Co., 113
Wis.2d 550, 560, 335 N.W.2d 578, 583 (1983), applies such that their 1990
discovery of the survey error was the date on which their negligence claim
accrued—not the date the survey was completed.
The Hansen discovery
rule does not apply to all tort actions.
"[W]hen a statute establishes a definite point of accrual [of a
cause of action], the Hansen discovery rule does not
apply." Skrupky v. Elbert,
189 Wis.2d 31, 55, 526 N.W.2d 264, 273 (Ct. App. 1994). When the plain language of the limitations
statute measures the time from the act or transaction, such has been deemed a
"legislatively created ‘non-discovery rule' outside the reach of Hansen." Id. (quoted source omitted).
Section 893.37, Stats., requires commencement of an
action against a land surveyor to recover damages for negligence, errors or
omission in the making of any survey within six years after completion of the
survey. The legislature has defined the
date on which the claim accrues, i.e., the date the survey was completed. Here, there is no question that the survey
was completed on January 2, 1980.
Therefore, the Hansen discovery rule is inapplicable, and
the trial court did not err in holding that the Smiths' cause of action against
Hinze was barred.
We reject the Smiths'
argument that the survey was not completed until Hinze filed the affidavit of
correction in June 1992. The Smiths'
argument is necessarily premised on construction of the phrase "completion
of a survey" in § 893.37, Stats. Construction of a statute is a question of
law which we undertake independently. Voss
v. City of Middleton, 162 Wis.2d 737, 749, 470 N.W.2d 625, 629
(1991). To ascertain the legislature's
intent, we resort to the language of the statute itself. Id. If it is clear and unambiguous, we are prohibited from looking
beyond the language of the statute to ascertain its meaning. Id.
The phrase
"completion of a survey" is not ambiguous and other than arguing that
completion of a survey should also mean that the survey was completed
accurately, the Smiths do not offer us any compelling reason to deem this part
of the statute ambiguous.
The Smiths also argue
that the trial court erred in ruling that because their action against Hinze
was barred on limitations grounds, so was their action against the employer
corporation, Hinze & Associates.
The Smiths argue that § 893.37, Stats.,
does not apply to the corporate employer of the surveyor and therefore their
claim against Hinze & Associates should not have been dismissed. Other than claiming that this result is
inequitable, the Smiths do not offer us any authority for the proposition that
Hinze & Associates remained liable to them under respondeat superior when
the employee who erroneously surveyed the property cannot be held liable due to
the expiration of the statute of limitations.
We decline to craft this argument for the Smiths. Therefore, we will not address it
further. See Vesely v.
Security First Nat'l Bank, 128 Wis.2d 246, 255 n.5, 381 N.W.2d 593, 598
(Ct. App. 1985).
The final issue the
Smiths raise in their cross-appeal is their claim for statutory costs against
the Zienteks after the Zienteks' claims were dismissed. Several of the Zienteks' claims were
dismissed in November 1993. In an
August 1994 hearing before the court, the Zienteks moved to dismiss their
remaining claims to position the matter for an appeal of the trial court's
prior claim preclusion ruling.[7] The Zienteks stated that if the court
decided to impose costs on the dismissed claims, they would proceed to
trial. The Smiths argued that if all of
the Zienteks' causes of action were dismissed, they were entitled to statutory
costs.
The court determined
that the Zienteks had the right to dismiss their causes of action and that the
award of statutory costs was discretionary with the court. The court declined to award costs in light
of the public policy of encouraging less litigation.
On appeal, the Smiths
argue that dismissal of the Zienteks' remaining claims required an award of
costs. The remaining claims were
dismissed with prejudice. In dismissals
with prejudice, the defendant is protected from the risk of further litigation
as to those claims. See Bishop
v. Blue Cross & Blue Shield, 145 Wis.2d 315, 318, 426 N.W.2d 114,
116 (Ct. App. 1988). Under
§ 805.04(2), Stats., the
court may grant dismissal of a plaintiff's claims "upon such terms and
conditions as the court deems proper."
Here, the court did not deem costs to be a proper condition of the
dismissal. This is discretionary with
the trial court. See Dunn
v. Fred A. Mikkelson, Inc., 88 Wis.2d 369, 380, 276 N.W.2d 748, 753
(1979). A discretionary decision will
be affirmed if there is any reasonable basis for it. Id. The
trial court gave its reasons for refusing to award costs to the Smiths, and
those reasons support the trial court's exercise of discretion.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] The appeal is taken from the final order entered on April 21, 1995. The order which is the subject of the appeal is a nonfinal order entered by the circuit court on November 30, 1993. This order was not final because it did not dispose of all of the claims between the parties. See § 808.03(1), Stats. The April 21, 1995, order resolved the parties' remaining claims.
[2] The court reached this determination based upon the fact that all of the property was originally owned by the Smiths. The Smiths sold a portion of it to the Zienteks. Therefore, there were only two possible owners of the disputed strip.
[3] The disposition of the Smiths' third-party complaint will be discussed when we address the cross-appeal.
[5] The Smiths do not direct us to any portion of Hinze's testimony indicating that he had the requisite knowledge that the affidavit was false, sham or frivolous.