COURT OF APPEALS DECISION DATED AND RELEASED JUNE 25, 1996 |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2993
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
DONALD MINNIECHESKE
and JEREMY ERICKSON,
Plaintiffs-Appellants,
RODNEY C. JOHNSON,
Plaintiff,
v.
VILLAGE OF TIGERTON,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Shawano County:
THOMAS G. GROVER, Judge. Affirmed.
CANE, P.J. Donald Minniecheske and Jeremy Erickson as
trustees for the Life Science Church appeal a judgment entered on October 19,
1995, and amended on October 30, 1995, denying their request for substitution
and recusal, dismissing the complaint, finding the complaint frivolous and
awarding costs to the Village of Tigerton in the amount of $563.80. On appeal, the issues are whether the trial
judge erred by refusing to recuse himself or to grant the requests for
substitution. Also at issue is whether
the trial court erred by denying the appellants' motion to vacate the tax
foreclosure judgment and dismissing their complaint. The judgment is affirmed.
The appellants filed a
small claims complaint entitled "Complaint at Law" requesting
restitution of land that had been foreclosed some years earlier because of the
failure to pay taxes. The appellants,
as a part of this action, also filed a motion to vacate the tax foreclosure
judgment and asked for an evidentiary hearing on the motion. The trial court refused to hold an
evidentiary hearing on their motion.
Applying the doctrine of res judicata, the trial court dismissed the
appellants' restitution action and reasoned that because the appellants were
simply attempting to collaterally attack the in rem tax foreclosure action, the
small claims complaint for restitution was frivolous.
The trial court
correctly denied the appellants' substitution request. Earlier, Judge Thomas Grover had denied the
appellants' motion for a temporary injunction to stop the Village of Tigerton
from trespassing and damaging the land sought in the restitution
complaint. Judge Grover also denied the
later substitution request as untimely.
Section 801.58 Stats.,
provides that any request for substitution shall be filed preceding the hearing
of any preliminary contested matters. Therefore,
the substitution request was filed untimely.
Judge Grover also
properly rejected the appellants' argument that he should recuse himself
because he was prejudiced and a defendant in the action. The appellants' claim of prejudice was that
Judge Grover had already denied the requested temporary injunction and was
therefore prejudiced. That is an
insufficient basis. See §
801.58, Stats. It is undisputed that the trial court had
never been made a party to the action, and the trial court referred to the
appellants' unsuccessful attempt to name him as a defendant in the action as an
attempt to harass the court and disqualify it from presiding on the case. Pursuant to § 757.19(2)(b), Stats., a judge need not disqualify
himself or herself if the judge determines that any pleading purporting to make
him or her a party is false, sham or frivolous. Additionally, the appellants cite no instance where there is a
conflict of interest, requiring the trial court to recuse itself.
Finally, the appellants
argue at great length in their brief the merits of the tax foreclosure action,
rather than the merits of this appeal.
Additionally, they cite no authority for their alleged ability to now
collaterally challenge a tax foreclosure judgment which had not been timely
appealed. This court agrees with the
trial court that the appellants cannot in a small claims restitution proceeding
collaterally challenge a tax foreclosure judgment for which the appeal time has
expired. It has been established in law
for some time that under the doctrine of claim preclusion, or res judicata, a
final judgment is conclusive in all subsequent actions between the same parties
or their privies as to all matters which were litigated which might have been
litigated in former proceedings. NSP
Co. v. Bugher, 189 Wis.2d 541, 550, 525 N.W.2d 723, 727 (1995). Also, under the doctrine of issue preclusion
or collateral estoppel, the final judgment is conclusive and forecloses
relitigation in a subsequent action of issues of law or fact that have been
actually litigated and decided in prior actions and identity of parties is not
required. Id. at 550-51,
525 N.W.2d at 727. This court also
agrees with the trial court that the small claims restitution action as an
attempt to collaterally attack the tax foreclosure judgment is frivolous
because the appellants knew or should have known the action was without any
reasonable basis in law. See §
814.025, Stats.
The judgment dismissing
the appellants' complaint seeking restitution of the land and awarding costs
because the action was frivolous is affirmed.
By the Court.—Judgment
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.