source: Caselaw Access Project

author: DEININGER, PJ.

license: Public Domain

text:
    Shabretta Evans, Adrianna Dupar, and LaQuanda Dupar, Plaintiffs-Respondents, Gwendolyn Evans, Plaintiff, Theodore Hodan, Successor Guardian ad Litem, Respondent, v. Daniel C. Luebke and American Family Insurance Group, Defendants, Hazel J. Washington, Appellant. [Case No. 02-2210.] Miracle Reed, Plaintiff-Respondent, Cherry Reed, Plaintiff, Theodore Hodan, Successor Guardian ad Litem, Respondent, v. Daniel C. Luebke and American Family Insurance Group, Defendants, Hazel J. Washington, Appellant. [Case No. 02-2211.]
    Court of Appeals

      Nos. 02-2210, 02-2211.

      Submitted on briefs April 10, 2003.—

      Decided September 25, 2003.

      2003 WI App 207
    (Also reported in 671 N.W.2d 304.)

      On behalf of the appellant, the cause was submitted on the briefs of Mark E. Sanders and Julie Ann Neuhaus of Hailing & Cayo, S.C., Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Joseph T. Ganzer and Theodore J. Hodan of Hodan, Doster & Ganzer, S.C., Milwaukee.
    Before Deininger, EJ., Dykman and Vergeront, JJ.

       Petition to review denied 1-23-04.

   DEININGER, PJ.

¶ 1. Attorney Hazel Washington appeals money judgments entered against her in favor of each of four minors whose interests she represented as guardian ad litem with respect to personal injury settlements. She also appeals two related judgments in favor of the children's successor guardian ad litem, Theodore Hodan, for his fees in obtaining the judgments for the recovery of the minors' settlement funds. Finally, Washington challenges orders that vacated provisions in the original minors' settlement orders that approved her claims for attorney fees for representing the minors in the underlying personal injury claims.

¶ 2. Washington claims the circuit court erred in entering the judgments and orders against her because: (1) she is immune from liability for professional negligence while serving as a guardian ad litem; (2) the circuit court lacked jurisdiction over her; (3) the circuit court violated her right to due process; (4) the minors suffered no damages because the money removed from their bank accounts was used for their benefit; (5) the circuit court failed to make factual findings; (6) the circuit court failed to identify a basis for vacating its prior approval of her attorney fees for representing the minors; and (7) the circuit court lacked authority to order her to pay the successor guardian ad litem's attorney fees.

¶ 3. We conclude that the circuit court had the authority to sanction Washington for contempt if she in fact disobeyed a court order. We also conclude, however, that the circuit court violated Washington's right to due process when it failed to conduct an evidentiary hearing or make findings of fact before entering the appealed judgments against her. We further find no basis in the present record for the circuit court's action in vacating its earlier approval of Washington's fees for procuring the personal injury settlements for the four minors. Accordingly, we reverse and remand for further proceedings.

BACKGROUND

¶ 4. Washington negotiated settlements on behalf of four minors injured in an automobile accident. She was then appointed the minors' guardian ad litem for the purpose of obtaining court approval of the settlements. The circuit court approved the settlements as well as Washington's attorney fees for services she provided in pursuing the personal injury claims. The circuit court also ordered that Washington's attorney fees and various subrogated claims be paid out of the settlements. The remaining balances were ordered to be placed "in a restrictive trust at any bank, savings and loan institution or like institution; said account is to be restricted in that funds shall not be withdrawn from said account until the minor child . . . reaches the age of 18 or by court order."

¶ 5. Shortly thereafter, the circuit court learned that the money was not placed in restricted accounts and that the balances had been partially or completely withdrawn. The circuit court scheduled at least two status conferences with Washington and the minors' mothers but much of what occurred at them was not reported. Washington informed the court at the second conference that the minors' mothers had withdrawn the funds to purchase clothing and blankets for the children. The circuit court declined to take testimony from the mothers and said that it would refer the matter to the district attorney's office and appoint a referee to further investigate the matter, but the record does not reflect whether either step was taken. The next day, however, the circuit court appointed Hodan to replace Washington as guardian ad litem for the four minors.

¶ 6. Hodan filed motions on behalf of all four minors requesting the circuit court to order Washington to personally repay the depleted settlement funds. He also requested the court to vacate the order approving Washington's attorney fees from the settlement and order her to pay Hodan's fees for pursuing recoupment of the funds on behalf of the minors. At an off-record status conference, the circuit court apparently granted Hodan's motions but stayed execution of them in order to allow Washington the opportunity to file written objections.

¶ 7. Washington filed objections and another status conference was held, only a portion of which was reported. The transcript reflects that the circuit court granted Hodan's motion only with regard to ordering Washington to repay the missing settlement funds. When Washington did not reinstate the accounts by the prescribed deadline for doing so, Hodan moved for judgments against Washington. The circuit court granted Hodan's motions in their entirety and entered judgments against Washington for the original balances in the minors' accounts, plus interest, and for the guardian ad litem fees submitted by Hodan. The court also vacated its prior approval of the payment of attorney fees to Washington from the personal injury settlements she obtained for the minors.

¶ 8. Washington moved for reconsideration and, alternatively, for a stay of the judgments pending appeal. Washington argued that the court had violated her due process rights when it: (1) allowed Hodan to pursue claims against her without filing a separate negligence action; (2) improperly vacated the court's prior approval of attorney fees she had earned; and (3) ordered her to pay Hodan's guardian ad litem fees in violation of the "American Rule." Washington also argued that the circuit court lacked jurisdiction over her; that she was entitled to quasi-judicial immunity while acting as guardian ad litem; and that, because the settlement funds were used to purchase items benefiting the children, they suffered no harm. The circuit court declined to vacate or modify the judgments and order, but did stay enforcement of them pending this appeal.

ANALYSIS

¶ 9. Washington and Hodan advance starkly different characterizations of what the circuit court did in this case. Washington claims that the sanctions imposed on her were the end product of an improperly commenced negligence action and that the court abrogated her quasi-judicial immunity from liability for actions taken while serving as a guardian ad litem. Hodan views the circuit court as simply exercising its authority under Wis. Stat. § 805.03 to impose sanctions for violations of its orders. Thus, although the parties frame the issues on appeal quite differently, the principal questions before us are whether the circuit court possessed the authority to impose the sanctions it did on Washington for her purported failure to obey a court order, and, if so, whether it followed proper procedure in doing so. We conclude that the answer to the first question is yes and to the second, no.

¶ 10. Although we agree with Hodan that the circuit court possessed the authority to sanction Washington for what it deemed her failure to follow its order regarding the disposition of the minors' funds, we do not agree that this authority necessarily derives from Wis. Stat. § 805.03. We conclude that a firmer grounding for the circuit court's authority may be found in the provisions of Wis. Stat. ch. 785 which permit a court to impose remedial sanctions for disobedience of its orders.

¶ 11. Before analyzing a circuit court's authority and the procedures for sanctioning contempt, however, we first briefly address Washington's immunity and jurisdictional arguments. Whether the circuit court had jurisdiction over Washington, and whether she can assert immunity from liability for the acts or omissions in question, are questions of law that we decide without deference to the circuit court. See State ex rel. V.J.H. v. C.A.B., 163 Wis. 2d 833, 840, 472 N.W.2d 839 (Ct. App. 1991).

¶ 12. Washington argues that the supreme court established in Paige K.B. v. Molepske, 219 Wis. 2d 418, 580 N.W.2d 289 (1998), a rule of quasi-judicial immunity for guardians ad litem from any and all claims alleging negligence in the performance of their statutorily prescribed duties. To the extent that the court in Paige K.B. limited immunity to guardians ad litem appointed in custody disputes under Wis. Stat. § 767.045, Washington urges that we extend the rule to encompass the provision under which she was appointed, Wis. Stat. § 807.10. We conclude, however, that what distinguishes Paige K.B. from the present facts is not the statutory underpinnings of the guardian ad litem's appointment, but the nature of the allegations lodged against the guardian ad litem. The quasi-judicial immunity of a guardian ad litem described in Paige K.B. applies only to liability for "the negligent performance of his or her duties," id. at 421, not as a shield against court-imposed sanctions for failure to obey a court order.

¶ 13. The children in Paige K.B. commenced a separate action against their former guardian ad litem, seeking damages in tort and alleging negligent performance of his statutorily prescribed duties. The justification for granting quasi-judicial immunity to guardians ad litem in that context arises from the recognition that, in order to assist the court in objectively determining the best interests of the children, a guardian ad litem must be free to investigate and marshal evidence unhampered by harassment, intimidation, the specter of future litigation, or any other interference with impartial decision-making. Paige K.B., 219 Wis. 2d at 433-34. No similar rationale justifies insulating a guardian ad litem from the contempt powers of the court that appointed him or her.

¶ 14. Although Hodan's petition on behalf of the four minors does not refer to the circuit court's contempt power or to sanctions for contempt, neither does it allege negligent performance of duties on Washington's part. Hodan asserted only that Washington failed to obey a court order requiring her to deposit the balance of the settlement checks into restricted trust accounts. We conclude that Hodan's allegations may properly be characterized as a motion for sanctions under Wis. Stat. § 785.03(l)(a), as opposed to a claim for damages caused by Washington's negligence. Accordingly, the immunity rule established in Paige K.B. does not apply.

¶ 15. For similar reasons, we also reject Washington's argument that the circuit court lacked jurisdiction over her person. As with her assertion of immunity, this argument is premised on the idea that Hodan's motion was akin to a tort action for negligent performance, for which a separate summons and complaint should have been filed and properly served on Washington. However, "a contempt proceeding is derivative of and attached to the principal action in which it arises." State ex rel. James L.J. v. Circuit Court for Walworth County, 200 Wis. 2d 496, 511, 546 N.W.2d 460 (1996). Washington's allegedly contumacious act was her failure to obey a court order related to her representation of four minors in settling a personal injury action. Hodan's request for sanctions was filed on behalf of those four minors as a part of the same personal injury action. We conclude that the proceedings at issue were properly brought on by motion. See Wis. Stat. § 785.03(1)(a) (quoted at footnote 6). No separate action needed to be commenced against Washington, and there is no jurisdictional infirmity.

¶ 16. Having concluded that the contempt proceeding was properly before the circuit court, and that Washington enjoys no immunity from such a proceeding, we next address whether the court followed proper procedures in exercising its contempt power. This is a question of law that we review de novo. See Oliveto v. Circuit Court for Crawford County, 194 Wis. 2d 418, 429, 533 N.W.2d 819 (1995).

¶ 17. Contempt power is recognized as an "inherent" judicial power, that is, one that does not necessarily derive from legislative mandate and which inheres in the definition of a court. See State v. Cannon, 196 Wis. 534, 536-37, 221 N.W. 603 (1928); State ex rel. Attorney General v. Circuit Court for Eau Claire County, 97 Wis. 1, 8, 72 N.W. 193 (1897). For over one hundred twenty years, however, the Wisconsin Supreme Court has recognized legislative regulation of the contempt power, and the court has proscribed the exercise of this power outside of the statutory scheme. "[T]he power to punish for contempt was not conferred in the first instance by statute . . . [however, this court] holds that whenever a statute prescribes the procedure in a prosecution for contempt, or limits the penalty, the statute controls." State ex rel. Lanning v. Lonsdale, 48 Wis. 348, 367, 4 N.W. 390 (1880); see also Douglas County v. Edwards, 137 Wis. 2d 65, 87-88, 403 N.W.2d 438 (1987).

¶ 18. A number of statutes beyond those in Wis. Stat. ch. 785 address a circuit court's authority to find persons in contempt for violating court orders or other misconduct. Additionally, a number of other statutes authorize a court to sanction parties and/or attorneys for violating procedural rules or court orders. The provision cited by Hodan as the basis for the circuit court's authority to sanction Washington, Wis. Stat. § 805.03, is among the latter. Although that section does not specifically reference contempt powers, it does authorize a circuit court to fashion "such orders ... as are just" for the "failure of any claimant... to obey any order of the court. .. ." Section 805.03.

¶ 19. We do not agree, however, that the circuit court's authority to sanction Washington in this case for her purported failure to obey its order directing disposition of the minors' proceeds necessarily derives from Wis. Stat. § 805.03. Section 805.03 is captioned "Failure to prosecute or comply with procedure statutes," and it was enacted in 1975 as part of a comprehensive revision of the Wisconsin rules of civil procedure. See In the Matter of the Promulgation of the Rules of Civil Procedure for the State of Wisconsin, 67 Wis. 2d 585, 690-91 (1975). Case law upholding sanctions imposed under this section appear to deal exclusively with pre-trial, procedural violations. Moreover, the Judicial Council note discussing Wis. Stat. § 785.01 states:

It is not the intent of the council to make the failure to comply with a scheduling, discovery or pretrial order automatically contempt of court. Sanctions for failure to comply with these types of orders are specified in the rules of civil procedure. An order issued to compel compliance with a scheduling, discovery or pretrial order, however, may be enforced by contempt.

Wis. Stat. Ann. § 785.01, Judicial Council Committee's Note — 1979, at 412 (West 2001).

¶ 20. Because Washington's allegedly contumacious act or omission had nothing to do with the violation of a pretrial, scheduling, or procedural order, we conclude that the circuit court's authority to sanction Washington for noncompliance with its substantive order directing the disposition of the minors' settlement proceeds is more firmly grounded in Wis. Stat. ch. 785, specifically in § 785.03(l)(a).

¶ 21. The procedure for sanctioning contempt under Wis. Stat. ch. 785 is dictated by the type of sanction sought to be imposed, remedial or punitive. Wis. Stat. § 785.03. A punitive sanction may be imposed "to punish a past contempt of court for the purpose of upholding the authority of the court." Wis. Stat. § 785.01(2). A proceeding to impose punitive sanctions may be brought only by a district attorney, the attorney general, or "a special prosecutor appointed by the court," and requires the filing of "a complaint" which is to be "processed" under the criminal procedure statutes. Wis. Stat. § 785.03(l)(b). That did not happen in this case, and we conclude that § 785.03(l)(b) is inapposite.

¶ 22. We therefore also conclude that what the circuit court imposed in this case were "remedial sanctions," i.e., ones "imposed for the purpose of terminating a continuing contempt of court." Wis. Stat. § 785.01(3). Washington's allegedly contumacious act or omission was her alleged failure to deposit, or see to the deposit of, the minors' settlement proceeds in restricted accounts as ordered by the court. So long as no properly restricted accounts containing the settlement proceeds existed, her alleged contempt continued. Thus, the court should have proceeded under Wis. Stat. § 785.03(l)(a), which establishes a procedure for the "nonsummary" imposition of remedial sanctions, and under Wis. Stat. § 785.04(1) which specifies allowable remedial sanctions.

¶ 23. "[F]or a remedial sanction to be entertained, there must be a motion to the court by an 'aggrieved person.' This contemplates someone other than the trial court." B.L.P. v. Circuit Court for Racine County, 118 Wis. 2d 33, 44, 345 N.W.2d 510 (Ct. App. 1984). This requirement was met on the present record by Hodan's motions filed on behalf of the aggrieved minors. Hodan's motions allege that Washington violated a court order and request the court to: (1) order her to reimburse the accounts for the missing funds; (2) vacate the approval of her attorney fees for obtaining the settlements; and (3) order her to pay Hodan's guardian ad litem fees. Although not captioned as motions under Wis. Stat. § 785.03(l)(a), they contain the essentials of a motion seeking remedial sanctions for disobedience of a court order under that paragraph.

¶ 24. Upon the filing of a motion seeking remedial sanctions for contempt, an on-the-record hearing must be held "for due process purposes." See Mercury Records Prods., Inc. v. Economic Consultants, Inc., 91 Wis. 2d 482, 504, 283 N.W.2d 613 (Ct. App. 1979). The evidence adduced at the hearing must support resultant findings of fact that the contemnor engaged in "intentional. . . [disobedience, resistance or obstruction of the authority, process or order of a court." Wis. Stat. § 785.01(l)(b). No evidentiary proceedings were conducted in this case, nor were facts stipulated to on the record that would support the necessary findings. We conclude that the lack of evidentiary proceedings, as well as the absence of proper findings to support the imposition of sanctions, violate both the requirements of ch. 785 and of due process. See Wis. Stat. § 785.03(l)(a) ("The court, after notice and hearing, may impose a remedial sanction. .. ." (emphasis added)); Dennis v. State, 117 Wis. 2d 249, 261, 344 N.W.2d 128 (1984) ("[Statutory requirements and due process require that the defendant be aware of what he must answer to so that he can be prepared to offer proof and explanation showing his good faith efforts to comply with the court's orders.").

¶ 25. We conclude that the circuit court should have followed procedures under Wxs. Stat. § 785.03(l)(a) for imposing remedial sanctions but did not do so. Those procedures require, at a minimum, notice that sanctions for contempt are being sought, and in the absence of stipulated facts, an evidentiary hearing sufficient to permit the court to make specific findings regarding whether the alleged contemnor intentionally disobeyed its orders.

¶ 26. Finally, we consider whether the sanctions the court imposed on Washington are among the remedial sanctions permitted by Wis. Stat. ch. 785 for violation of a court order. Wisconsin Stat. § 785.04(1) authorizes a court to impose one or more of the following remedial sanctions:

(a) Payment of a sum of money sufficient to compensate a party for a loss or injury suffered by the party as the result of a contempt of court.
(b) Imprisonment if the contempt of court is [among others, disobedience of a court order]. The imprisonment may extend only so long as the person is committing the contempt of court or 6 months, whichever is the shorter period.
(c) A forfeiture not to exceed $2,000 for each day the contempt of court continues.
(d) An order designed to ensure compliance with a prior order of the court.
(e) A sanction other than the sanctions specified in pars, (a) to (d) if it expressly finds that those sanctions would be ineffectual to terminate a continuing contempt of court.

¶ 27. The judgments against Washington for the original amounts of the minors' settlements that were to have been deposited in restricted accounts for them, together with interest, appear to be a proper remedial sanction under Wis. Stat. § 785.04(l)(a). The court may impose the payment of this money as a sanction, however, only if it is satisfied that the payments are necessary to compensate the minors "for a loss or injury [they] suffered ... as the result of a contempt of court." See Wis. Stat. § 785.04(1)(a); Benn v. Benn, 230 Wis. 2d 301, 311, 602 N.W.2d 65 (Ct. App. 1999). By the same token, Hodan's fees for pursuing the contempt sanctions on behalf of the minors are recoverable under Wis. Stat. § 785.04(1)(a). Town of Seymour v. City of Eau Claire, 112 Wis. 2d 313, 320, 332 N.W.2d 821 (Ct. App. 1983).

¶ 28. We find no specific language in Wis. Stat. § 785.04(1), however, that would permit the court to vacate its prior approval of the attorney fees Washington earned for procuring the settlements. In disbursing these fees to herself, Washington complied with the express provisions of the orders approving the minors' settlements. We fail to see how vacating the approval for disbursement of these fees represents compensation of the minors for losses stemming from Washington's alleged failure to comply with other provisions of the orders — those requiring restrictive deposit of the net proceeds for the minors' benefit. Although a court may impose per diem forfeitures of money under § 785.04(l)(c) to compel the cessation of a continuing contempt, we find nothing in the record to indicate the court intended to have Washington "forfeit" her fees as an incentive for her to cease a continuing contempt.

¶ 29. In addition, Wis. Stat. § 785.04(l)(d) and (e) permit the court to impose additional, unspecified sanctions in order "to ensure compliance with a prior order of the court" or "to terminate a continuing contempt." The present record, however, provides no support for the proposition that confiscating Washington's previously approved fees is necessary or appropriate to achieve those ends. We thus agree with Washington that, in the absence of a motion and appropriate showings under Wis. Stat. § 806.07(1), the court should not have modified the settlement approval orders by vacating the approval of her fees.

¶ 30. On remand, after notice and a hearing, if the court finds that Washington intentionally disobeyed its orders regarding disposition of the minors' settlement proceeds, it may impose monetary sanctions pursuant to Wis. Stat. § 785.04(1). These may include, under § 785.04(l)(a), requiring Washington to compensate the minors for their losses suffered as a result of her contempt and requiring her to pay the costs of procuring the restoration of the minors' funds. If the court deems additional monetary sanctions necessary or appropriate, such sanctions must be tied to the purposes set forth in paragraphs § 785.04(l)(c)-(e).

CONCLUSION

¶ 31. For the reasons discussed above, we reverse the appealed judgments, as well as the orders vacating approval of Washington's attorney fees. We remand for further proceedings consistent with this opinion.

By the Court. — Judgments reversed and causes remanded with directions.

       Washington represented three minors, who are the daughter and foster daughters of Gwendolyn Evans, in a personal injury action against Daniel Luebke and his insurer, American Family Insurance Group. She also represented the minor daughter of Cherry Reed in a separate action against the same defendants. She appeals virtually identical judgments and orders entered in the two cases, and accordingly, we ordered the two appeals consolidated. Luebke and American Family are not affected by the appealed orders and neither they nor the two mothers have participated in this appeal.

       The court also apparently discussed with the two attorneys Washington's request for a court order allowing her to file suit against the minors' mothers for reimbursement of any funds that Washington was ordered to deposit in the minors' accounts. Although the record is not entirely clear on the matter, Washington appears to have agreed to replenish the bank accounts if the circuit court would sign an order authorizing her to proceed against the mothers for reimbursement. After this status conference, Washington drafted and submitted a proposed order to this effect. Hodan objected to a portion of the proposed order and the circuit court did not sign it. Washington then filed a motion seeking entry of a similar order, but the court denied it on grounds that it had no authority to grant Washington the right to proceed with a new lawsuit.

       Circuit Judge Michael D. Guolee heard Washington's motions for reconsideration or stay, apparently because Judge William Haese, who entered the appealed judgments, had retired. In ruling on Washington's motions, Judge Guolee expressed strong reservations regarding the lack of due process or factual findings to support the sanctions imposed on Washington. He concluded, however, that as a court of "concurrent jurisdiction" he should not set aside or alter Judge Haese's orders, choosing instead to stay them to permit Washington to pursue her claims of error in this court.

        See Paige K.B. v. Molepske, 219 Wis. 2d 418, 427 n.4, 580 N.W.2d 289 (1998) ("Our review and conclusions in this case are limited to whether a GAL appointed by the circuit court under Wis. Stat. § 767.045 (2001-02) is entitled to absolute quasi-judicial immunity from negligence liability for performing his or her statutorily prescribed functions."). All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Judges, of course, enjoy judicial immunity from liability for our official acts or omissions, from which the immunity of court-appointed guardians ad litem derives. See Paige K.B., 219 Wis. 2d at 424. This does not mean, however, that we cannot be sanctioned for violating rules of the Wisconsin Supreme Court or for willfully failing to perform assigned duties. See Wis. Stat. §§ 757.81(4)(a), (b) and 757.85.

       Wisconsin Stat. § 785.03(l)(a) provides as follows:
      (a) Remedial sanction. A person aggrieved by a contempt of court may seek imposition of a remedial sanction for the contempt by filing a motion for that purpose in the proceeding to which the contempt is related. The court, after notice and hearing, may impose a remedial sanction authorized by this chapter.

       The fact that Washington was not the children's guardian ad litem at the time Hodan filed his motion does not alter our conclusion. She was acting as their guardian ad litem in the personal injury matter when she allegedly disobeyed the court's order. Moreover, we note that any "person who is alleged to be committing the contempt... may be brought in as a party for the purposes of the contempt motion...." Wis. Stat. Ann. § 785.03, Judicial Council Committee's Note — -1979, at 437 (West 2001). Although Hodan did not move to formally implead Washington, as long as the court that adjudicated the rights on which the contempt motion is based hears the motion for contempt, the fact that faulty procedures are used to bring the contemnor before the court will not deprive the court of jurisdiction to award contempt. Dalton v. Meister, 84 Wis. 2d 303, 309, 267 N.W.2d 326 (1978) (citing Upper Lakes Shipping, Ltd. v. Seafarers Intl Union, 22 Wis. 2d 7, 18, 125 N.W.2d 324 (1963)).

        See, e.g., Wis. Stat. §§ 885.11 and 885.12 (failure of a witness to appear punishable as contempt); Wis. Stat. § 880.252 (failure of a guardian to file accounting punishable as contempt); Wis. Stat. § 757.30 (practicing law without a license punishable as contempt); Wis. Stat. § 252.11(5) (failure to accept treatment for a sexually-transmitted disease punishable as contempt).

         See, e.g., Wis. Stat. §§ 802.05, 802.10(7), 804.12, 805.03, and 814.025.

       See, e.g., Anderson v. Circuit Court for Milwaukee County, 219 Wis. 2d 1, 8-9, 578 N.W.2d 633 (1998) (holding that circuit court has authority to sanction attorney for violations of scheduling orders); Hudson Diesel, Inc. v. Kenall, 194 Wis. 2d 531, 542, 535 N.W.2d 65 (Ct. App. 1995) (holding that circuit court has authority to sanction attorney for failing to comply with discovery requests); Buchanan v. General Cas. Co., 191 Wis. 2d 1, 8-9, 528 N.W.2d 457 (Ct. App. 1995) (upholding dismissal for failure to prosecute).

       By the same token, the "summary procedure" for "contempt of court in the actual presence of the court" does not apply on the present facts. Wis. Stat. § 785.03(2). Whatever Washington did or failed to do in noncompliance with the minors' settlement orders did not occur in the presence of the court.

       A finding of contempt rests on the trial court's factual findings. See State v. Rose, 171 Wis. 2d 617, 623, 492 N.W.2d 350 (Ct. App. 1992). The critical findings are that the party was able to comply with the order and that the refusal to comply was willful and with intent to avoid compliance. Cf. id.

       As we have noted, no evidentiary hearing was conducted in this case. Washington and Hodan did submit affidavits in support of their various motions, and each made assertions of fact to the court by way of their oral and written arguments and through correspondence to the court. Assertions by Washington included that the mothers of the minors had withdrawn the funds and that the funds had been spent for the benefit of the minors, while Hodan asserted that Washington had advised the mothers that they could ignore the requirements for restricted accounts and court permission for expenditures. Such unsworn, hearsay assertions are of course insufficient to support judicial findings in the absence of a stipulation.
      We also note that Hodan argues Washington waived any objection to the circuit court's failure to hold an evidentiary hearing by not requesting that Judge Haese conduct one. It is evident from the record, however, that neither the attorneys nor the court focused on the fact that the proceedings following Hodan's appointment were in fact, if not in name, contempt proceedings under Wis. Stat. § 785.03(l)(a). At one of the early status conferences, with both mothers in attendance, the court sua sponte declared that "I would swear the parties, but I don't want to put them in a position of incriminating themselves." Moreover, we note that the lack of a hearing and factual findings were specifically raised during Judge Guolee's consideration of Washington's motion to reconsider. Although Judge Guolee declined to rule on it, he was clearly aware that Washington was asserting a violation of her due process rights. We are thus satisfied that Washington sufficiently raised the issue in the circuit court to have permitted that court, albeit perhaps by a different judge, to remedy the procedural deficiencies for which we now reverse and remand.

       We are uncertain, as well, of the effect of the court's orders vacating its prior approval of the fees. In each of the orders approving the minors' settlements, Washington was authorized to disburse attorney fees to herself. We assume that she did so. None of the appealed judgments appear to require her to disgorge these fees by paying them over to the minors or to Hodan or the court.

       WISCONSIN Stat. § 806.07(1) permits a court to grant relief from an order or judgment, "[o]n motion and upon such terms as are just," for reasons which include "[m]istake, inadvertence, surprise, or excusable neglect"; "[njewly-discovered evidence"; and "[fjraud, misrepresentation, or other misconduct of an adverse party."

       Hodan renews in his response brief assertions he made in support of earlier motions to dismiss Washington's appeal. He claims the appeal was untimely and from non-final orders. We denied Hodan's motions because the record shows that Washington timely appealed six judgments entered on July 1, 2002. We acknowledge that her notice of appeal references two earlier, non-final orders (an order to reinstate the minors' settlement funds and an order to pay Hodan's guardian ad litem fees), but each of these orders are subsumed in the July 1 judgments. We may look to an appellant's intent when determining what has been appealed. See State v. Ascencio, 92 Wis. 2d 822, 824-26, 285 N.W.2d 910 (Ct. App. 1979) (holding that when intent was to appeal judgment, notice of appeal directed to nonfinal order treated as appeal from judgment). A notice of appeal identifying a nonappealable order is sufficient to invoke appellate jurisdiction if it is apparent that the appellant intended to appeal an appealable order and the notice was timely with respect to the final order. See Culbert v. Young, 140 Wis. 2d 821, 824, 412 N.W.2d 551 (Ct. App. 1987).
      Washington also claims error in the orders that vacated approval of her attorney fees. Although these orders did not become a part of the appealed judgments, they are also properly before this court. See Wis. Stat. Rule § 809.10(4) (appeal from a final judgment or order brings before the court all prior non-final judgments, orders, and rulings adverse to the appellant and favorable to the respondent). We thus again reject Hodan's jurisdictional arguments.


author: VERGERONT, J. LUNDSTEN, J.

text:
    Adele R. Garcia, Plaintiff-Appellant-Cross-Respondent, v. Mazda Motor of America, Inc., a foreign corporation, and Hall Imports, Inc., a Wisconsin corporation, Defendants-Respondents-Cross-Appellants.
    Court of Appeals

      No. 02-2260.

      Submitted on briefs April 10, 2003.—

      Decided September 25, 2003.

    2003 WI App 208
    (Also reported in 671 N.W.2d 317.)

      On behalf of the plaintiff-appellant-cross-respondent, the cause was submitted on the briefs of William S. Focan, Vincent P. Megna, and Susan M. Grzeskowiak, Jastroch & LaBarge, S.C. of Waukesha.
    On behalf of the defendants-respondents-cross-appellants, the cause was submitted on the briefs of Jeffrey S. Fertl, Hinshaw & Culbertson of Milwaukee.
    Before Dykman, Vergeront and Lundsten, J.J.

       Petition to review granted 12-16-03.

   VERGERONT, J.

¶ 1. This appeal concerns Wisconsin's Lemon Law, Wis. Stat. § 218.0171 (2001-02). The trial court granted summary judgment in favor of Mazda Motor of America, Inc. and Hall Imports, Inc. on Adele Garcia's Lemon Law claim, concluding that the thirty days for Mazda to provide Garcia with a comparable new vehicle had not begun to run because she did not offer to transfer title of her motor vehicle to Mazda as required by § 218.0171(2)(c). We agree with the trial court. We conclude the plain meaning of this subsection is that the thirty days within which the manufacturer is obligated to provide a comparable new vehicle or a refund of the purchase price at the direction of the consumer does not begin to run until the consumer offers to transfer title of the vehicle to the manufacturer. Based on the undisputed facts, we conclude Garcia did not offer to transfer title of her vehicle to Mazda. Accordingly, we affirm the summary judgment.

BACKGROUND

¶ 2. The relevant background facts are not disputed. In February 2001, Garcia purchased and took delivery of a 2001 Mazda Tribute from Hall Imports. Within a few weeks of delivery, she experienced problems with the transmission/gear shifter when trying to shift out of park. Garcia brought the vehicle to Hall Imports for repairs on April 4, 2001, and again on August 1 and August 8 because the problem with the gear shift continued. During Garcia's trip to Billings, Montana, in early September 2001, she once again experienced shifting problems with the vehicle, and she left her vehicle at a Mazda dealership in Billings for repairs on September 5.

¶ 3. On September 20, while her vehicle was still being repaired in Billings, Garcia sent a letter by certified mail to Mazda's consumer compliance department. She explained the problems she had had with the vehicle, her attempts to repair it, and stated:

It is my understanding that the Lemon Law in the State of Wisconsin is that after a reasonable number of unsuccessful repair attempts by Mazda or its authorized dealers, or that the vehicle has been out of service for a specific number of days, that I'm entitled to either a comparable replacement vehicle or a refund of the purchase price. At this time the automobile has been out of service for a period of 16 days and I would like to have a replacement.

The receipt card shows Mazda received this letter on September 24. Mazda's consumer compliance specialist responded by letter that she would review the matter and contact Garcia.

¶ 4. Meanwhile, on October 5 Garcia picked up her vehicle at Hall Imports. She continued to have trouble getting her vehicle out of park and brought the vehicle again to Hall Imports for repair on October 16. She was told then that it would need a new transmission.

¶ 5. Mazda responded on October 18 to Garcia's letters (she had written another on October 12) by offering her an extended warranty instead of a replacement. Garcia refused and reiterated that she wanted a replacement vehicle. On October 26, Mazda contacted Garcia and said Mazda would provide a replacement vehicle. Garcia went to Hall Imports and placed an order for a new Mazda Tribute. The parties dispute whether they had an agreement at that time that Garcia would accept the replacement vehicle as a resolution of her complaint with Mazda or whether there were unresolved issues concerning the payment of sales taxes and other charges. However, that dispute is not relevant to this appeal. In either case, Garcia did not have a new vehicle by the time she filed this action on November 21, 2001. The complaint alleged that Mazda violated Wis. Stat. § 218.0171 because it had not provided a comparable new vehicle without imposing conditions not required by the statute.

¶ 6. The defendants moved for summary judgment on the ground that the thirty-day time period in Wis. Stat. § 218.0171(2)(c) for Mazda to respond to Garcia's request for a comparable new vehicle was never triggered because Garcia had not offered to transfer title to her vehicle to Mazda. This section provides:

(c) To receive a comparable new motor vehicle or a refund due under par. (b)l. or 2., a consumer described under sub. (l)(b)l., 2. or 3. shall offer to the manufacturer of the motor vehicle having the nonconformity to transfer title of that motor vehicle to that manufacturer. No later than 30 days after that offer, the manufacturer shall provide the consumer with the comparable new motor vehicle or refund. When the manufacturer provides the new motor vehicle or refund, the consumer shall return the motor vehicle having the nonconformity to the manufacturer and provide the manufacturer with the certificate of title and all endorsements necessary to transfer title to the manufacturer.

The trial court agreed with the defendants and granted summary judgment dismissing the complaint.

DISCUSSION

¶ 7. Garcia contends on appeal that the trial court erred in construing Wis. Stat. § 218.0171(2)(c) because the subsection does not require that a consumer explicitly offer to transfer title. Rather, she asserts, such an offer is implicit in a request for a replacement vehicle because "replacement" implies that the consumer will give back the nonconforming vehicle in exchange for the new vehicle. Therefore, according to Garcia, the thirty days for Mazda to provide Garcia with a comparable new vehicle began to run on September 24, 2001, and expired on October 24, 2001.

¶ 8. We review summary judgments de novo, employing the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Generally, summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. In this case, which party is entitled to judgment depends upon the proper construction of Wis. Stat. § 218.0171(2)(c). This presents a question of law, which we review de novo. State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997). The purpose of statutory interpretation is to discern the legislature's intent. Id. at 406. We first consider the language of the statute. Id. If that clearly and unambiguously sets forth the legislature's intent, we do not look outside the statutory language to ascertain that intent; rather, we apply the plain language to the facts at hand. Id. A statute is ambiguous when it is capable of being understood in two or more different senses by reasonably well-informed persons. Id. However, statutory language is not ambiguous merely because the parties disagree on its meaning. Id.

¶ 9. Wisconsin Stat. § 218.0171, the Lemon Law, is "a remedial statute designed to rectify the problem a new car buyer has when that new vehicle is a 'lemon.'" Berends v. Mack Truck, Inc., 2002 WI App 69, ¶ 8, 252 Wis. 2d 371, 643 N.W.2d 158. If a new motor vehicle does not conform to an express warranty and the consumer reports the nonconformity and makes the vehicle available for repair before the expiration of the warranty or one year after delivery of the vehicle, "the nonconformity shall be repaired." Section 218.0171(2)(a). If the nonconformity is not repaired after a reasonable attempt to repair, the consumer's remedies under § 218.0171(2)(b) are as follows:

(b) 1. If after a reasonable attempt to repair the nonconformity is not repaired, the manufacturer shall carry out the requirement under subd. 2. or 3., whichever is appropriate.
2. At the direction of a consumer described under sub. (l)(b)l., 2. or 3., do one of the following:
a. Accept return of the motor vehicle and replace the motor vehicle with a comparable new motor vehicle and refund any collateral costs.
b. Accept return of the motor vehicle and refund to the consumer and to any holder of a perfected security interest in the consumer's motor vehicle, as their interest may appear, the full purchase price plus any sales tax, finance charge, amount paid by the consumer at the point of sale and collateral costs, less a reasonable allowance for use . . . ,
3. [Applying to leased vehicles.]

(Footnote added.)

¶ 10. Turning to the language of Wis. Stat. § 218.0171(2)(c), we see, generally, that this paragraph establishes the process by which the consumer obtains the chosen remedy and the obligations of both .the consumer and the manufacturer in that process. The first sentence says in mandatory language that the consumer "shall offer to the manufacturer ... to transfer title of that [nonconforming] motor vehicle." Section 218.0171(2)(c). The second sentence says, again in mandatory language, that "[n]o later than 30 days after that offer, the manufacturer shall provide the consumer with the comparable new motor vehicle or refund." Id. "That offer," which starts the thirty days running, can only refer to the "offer to the manufacturer... to transfer title of that [nonconforming] motor vehicle" in the preceding sentence. The third sentence, again in mandatory language, imposes certain obligations on the consumer when the manufacturer provides the chosen remedy: the consumer shall return the nonconforming motor vehicle to the manufacturer and "the certificate of title and all endorsements necessary to transfer title to the manufacturer." Id.

¶ 11. We see no ambiguity in the first two sentences of Wis. Stat. § 218.0171(2)(c): the consumer must offer to the manufacturer to transfer title to the nonconforming vehicle and that offer triggers the start of the thirty-day period within which the manufacturer must provide the consumer with the chosen remedy. Garcia's reading — that the request for a replacement vehicle is implicitly an offer to transfer title that triggers the thirty days — is not a reasonable reading of the statutory language. Presumably, a request for a refund of the purchase price could also be construed as an implicit offer to transfer title to the nonconforming vehicle. Thus, under Garcia's reading, the consumer's request for either remedy starts the thirty days running and a separate offer to transfer title is never necessary because it is implicit in the request for one or the other remedy. However, if that is what the legislature intended, it would not have used the words "thirty days from that offer."

¶ 12. Garcia points out that the last sentence in Wis. Stat. § 218.0171(2)(c) requires that the consumer actually deliver the certificate of title and the necessary endorsement to transfer title before obtaining a comparable new vehicle or a refund. According to Garcia, it is therefore unnecessary for the consumer to offer to transfer title to accomplish the goal of making sure the manufacturer gets title to the nonconforming vehicle along with the nonconforming vehicle. However, it is for the legislature to decide what process will facilitate that goal, and the legislature has plainly decided that a consumer's offer to transfer title, in addition to a request for either a comparable new vehicle or a refund, should be required to trigger the manufacturer's obligation to provide the consumer's chosen remedy.

¶ 13. Garcia also argues that, in view of the remedial purpose of the Lemon Law, we should construe the language of Wis. Stat. § 218.0171(2)(c) in favor of consumers and not require an explicit offer to transfer title in addition to a request for a comparable new vehicle. The purpose of the Lemon Law as expressed by the supreme court is to "improve auto manufacturers' quality control. . . [and] reduce the inconvenience, the expense, the frustration, the fear and [the] emotional trauma that lemon owners endure." Hughes v. Chrysler Motor Corp., 197 Wis. 2d 973, 982, 542 N.W.2d 148 (1996) (alterations in original) (citation omitted). This is without doubt a significant remedial purpose. However, the rule of statutory construction on which Garcia relies applies only when statutory language is ambiguous; it does not permit a court to rewrite unambiguous terms of the Lemon Law. See Smyser v. Western Star Trucks Corp., 2001 WI App 180, ¶ 15, 247 Wis. 2d 281, 634 N.W.2d 134.

¶ 14. Garcia also relies on Alberte v. Anew Health Care Services, Inc., 2000 WI 7, ¶ 10, 232 Wis. 2d 587, 605 N.W.2d 515, for the proposition that courts have "some scope for adopting a restricted rather than a literal or usual meaning of [a statute's] words where acceptance of that meaning ... would thwart the obvious purpose of the statute." (Second alteration in original) (citations omitted). In Alberte, the court rejected a literal interpretation of certain words because the court concluded it produced unreasonable results in light of the entire statutory scheme at issue in that case. Id., ¶¶ 10-12. We do not see how reading Wis. Stat. § 218.0171(2)(c) to require the consumer to offer to transfer title in order to trigger the thirty-day period thwarts the legislative purpose of the Lemon Law or is unreasonable in light of the entire statutory scheme. It is a requirement that is plainly set forth in the statute and it is a requirement that is easy for a consumer who has title to a nonconforming motor vehicle to comply with. The fact that a particular consumer did not comply with this requirement and therefore is not entitled to the remedy she seeks in a court action is unfortunate, but it does not mean that the requirement itself thwarts the purpose of the Lemon Law or is unreasonable in light of the entire statutory scheme. If the requirement of offering to transfer title is a technicality that causes more harm to unwary consumers than it does facilitate the actual transfer of title to the manufacturer, as Garcia contends, then the solution lies with the legislature.

¶ 15. In summary, we conclude that the thirty days within which Mazda was obligated to provide Garcia with a comparable new vehicle did not begin to run under Wis. Stat. § 218.0171(2)(c) until Garcia offered to transfer title to her vehicle to Mazda. We also conclude that her request for a replacement vehicle did not satisfy the requirement that she offer to transfer title to her vehicle to Mazda. Accordingly, Mazda did not violate the statute by failing to provide her with a comparable new vehicle.

By the Court. — Judgment affirmed.

LUNDSTEN, J.

¶ 16. (dissenting). The majority concludes that Adele Garcia did not offer to transfer title to her vehicle to Mazda, within the meaning of Wisconsin's Lemon Law. I respectfully dissent because I believe Garcia gave Mazda clear notice that she was offering to transfer title under the Lemon Law.

¶ 17. As the majority explains, when certain criteria are met, Wisconsin's Lemon Law gives car owners a choice of two remedies and requires that the owners communicate their choice of remedy to the manufacturer. The applicable subsection provides in part:

To receive a comparable new motor vehicle or a refund ... a consumer . .. shall offer to the manufacturer of the motor vehicle having the nonconformity to transfer title of that motor vehicle to that manufacturer.

Wis. Stat. § 218.0171(2)(c). An offer under this subsection triggers a thirty-day time period for compliance by the manufacturer.

¶ 18. I agree with the majority that Wis. Stat. § 218.0171(2) unambiguously requires that a "lemon" owner communicate to the manufacturer the remedy the owner desires and offer to transfer title to their vehicle in exchange for a refund or a replacement vehicle. Under the statutory scheme, a manufacturer must receive clear notice of such a demand and offer so that the commencement date of the thirty-day time period for compliance is likewise clear.

¶ 19. I point out that the majority does not seem to require magic words. That is, the majority does not say that a valid offer must include the words "offer" and "transfer title." For example, I suspect the majority would find a valid offer if Garcia had written: "Pursuant to the Lemon Law, I want a replacement car and I am willing to sign any papers or tender any papers needed to switch ownership of my current car to Mazda." Thus, I do not interpret the majority as holding that the legislature has mandated magic words. It follows that our disagreement is over whether the particular words used by Garcia communicated the offer required by the statute.

¶ 20. Garcia wrote:

It is my understanding that the Lemon Law in the State of Wisconsin is that after a reasonable number of unsuccessful repair attempts by Mazda or its authorized dealers, or that the vehicle has been out of service for a specific number of days, that I'm entitled to either a comparable replacement vehicle or a refund of the purchase price. At this time the automobile has been out of service for a period of 16 days and I would like to have a replacement.

Thus, Garcia specified that she was making her request for replacement under Wisconsin's Lemon Law and she specified that she wanted a replacement vehicle. The majority says, in effect, "ah, but she did not actually offer to transfer title to her current car when she gets the replacement." I do not understand this thinking.

¶ 21. There can be no doubt that Mazda understood that Garcia was invoking her right to a replacement vehicle under Wis. Stat. § 218.0171(2)(c) and communicating to the company that she would transfer the title to her "lemon" to Mazda. Indeed, she was statutorily obligated to transfer title when Mazda gave her a replacement:

When the manufacturer provides the new motor vehicle . .., the consumer shall return the motor vehicle having the nonconformity to the manufacturer and provide the manufacturer with the certificate of title and all endorsements necessary to transfer title to the manufacturer.

Wis. Stat. § 218.0171(2)(c). It is nonsensical for the owner of a "lemon" to demand a replacement and not, at the same time, be offering to transfer title.

¶ 22. The plain language of the statute requires that the "lemon" owner communicate to the manufacturer his or her choice of remedy and a willingness to transfer title. Garcia did not simply demand a replacement. She specified that she was making her demand under the Wisconsin Lemon Law. The only reasonable way to read her letter is that she was notifying Mazda, pursuant to the Lemon Law, that she wanted a replacement car and would give up her car, including title, when Mazda supplied a replacement.

¶ 23. Did Mazda think Garcia was trying to trick it? Did Mazda think Garcia was asking for a replacement, but was not also offering to transfer title to her current car, so that she would end up with two cars? Of course not. And, just as plainly, she could not succeed in such trickery because the statute requires that she transfer title upon receiving the replacement vehicle. To repeat, the only reasonable reading of Garcia's letter is that she was notifying Mazda that she wanted a replacement car and would, necessarily, give up her car, including title, when Mazda supplied a replacement.

¶ 24. Accordingly, I respectfully dissent.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Our disposition of the appeal makes it unnecessary for us to decide the issue Mazda and Hall Imports raise on their cross-appeal: whether the trial court erred in concluding that, as a matter of law, Garcia and Mazda had not reached an enforceable settlement agreement before Garcia filed this action.

       We held in Berends v. Mack Truck, Inc., 2002 WI App 69, ¶¶ 11-13, 252 Wis. 2d 371, 643 N.W.2d 158, that the plain language of Wis. Stat. § 218.0171(2)(b) required the consumer to choose one of the two remedies and communicate this choice to the manufacturers. Because the consumer there did not do so, but instead listed these as alternatives in a demand letter to the manufacturer, we concluded the notice was defective. Id. We expressly left open the issue of "whether a consumer must explicitly state an intention to transfer title or whether such an offer can be inferred from the consumer's offer to return the vehicle." Id., ¶ 1 n.2. We added: "However, we note for the reader's benefit that the most prudent approach would be to explicitly offer to transfer title of the motor vehicle to the manufacturer." Id. We observe that our statement of the issue in Berends differs somewhat from the argument Garcia makes because the consumer in Berends demanded that the manufacturer "accept the return of his vehicle" as well as providing a new vehicle. Id., ¶ 2.
      In Berends, the applicable statute was Wis. Stat. § 218.015(2)(b) (1997-98). The Lemon Law was renumbered Wis. Stat. § 218.0171, effective April 19, 2000, but was not substantively amended in the course of renumbering. Therefore, our interpretation in Berends is equally applicable to Wis. Stat. § 218.0171, and we refer to the current numbering system in this opinion.

       Mazda and Hall cross-appeal, effectively supplying an alternative reason why they should prevail on appeal. I have reviewed this issue and would decide it against Mazda and Hall. However, because this is a dissent, I choose not to expend my limited resources writing on the topic.