Wisconsin Business and Commercial Litigation

I’ve just signed on to attend (and my firm will sponsor) the annual conference of the Wisconsin Chapter of the Association of Corporate Counsel.  From the looks of the materials from past conferences, it’s a great way to brush up on issues vital to in-house counsel, and to stay (or get) in touch with lawyers who practice in business law, whether that means employment, litigation, or transactions.  Having run a trade association before, I can tell you that this chapter’s board of directors is more involved than most and takes a hands-on approach to the convention.  That sort of involvement inevitably results in programs that offer great value and insight for the members.  I look forward to being a part of this year’s event, and will keep you updated as the program takes more definite shape.

In Parkland Plaza Vet. Clinics v. Gerard, the court of appeals upheld Waukesha County Judge Ralph Ramirez’s restrictions on Gerard’s access to courts.  The court describes Gerard’s “Quixotic tilting at windmills,” and her frequent and unfounded tilting practices.  As a result of Gerard’s actions, Judge Ramirez imposed a number of sanctions “designed to protect the court and its staff from her vexatious conduct”:

That the Clerk of Courts for Waukesha County shall no longer accept any filings or correspondence from Gerard or anyone on her behalf;

That any documents or filings that are received by mail are to be sent back to Gerard’s last known address without review by the court or clerk;

That only upon proof of payment in full ($2,538.82) to Parkland Plaza Veterinary clinic S.C., or its attorney Basil Loeb, shall any documents be accepted from Defendant Gerard.

Gerard naturally appealed, and the appellate court upheld Ramirez:

An individual has a due process right of access to the courts, Piper v. Popp, 167 Wis. 2d 633, 644, 482 N.W.2d 353 (1992), however, that right is not absolute and may be curtailed where a litigant abuses the court system.  See Support Sys. Int’l, Inc. v. Mack, 45 F.3d 185, 186 (7th Cir. 1995) (prohibiting prodigious litigator from filing noncriminal motions).  A trial court has “inherent power to protect itself against any action that would unreasonably curtail its powers or materially impair its efficiency.”  Jacobson v. Avestruz, 81 Wis. 2d 240, 245, 260 N.W.2d 267 (1977) (citation omitted).

. . . .

 We agree with the trial court’s finding that Gerard’s vast and vexatious filings in this case establish Gerard has “a history of non-compliance with court orders, prosecution of frivolous motions, [and] reckless disregard of court orders.”  A court faced with a litigant who has engaged in a pattern of frivolous litigation has the authority to implement a remedy that may include restrictions on that litigant’s access to the court.  Minniecheske v. Griesbach, 161 Wis. 2d 743, 748, 468 N.W.2d 760 (Ct. App. 1991).  Such restrictions may include barring the litigant from filing further civil actions, aside from habeas corpus, until the litigant has paid fees or costs imposed in the same case or a prior case.  Puchner v. Hepperla, 2001 WI App 50, ¶¶6, 10 and n.7, 241 Wis. 2d 545, 625 N.W.2d 609.  We are satisfied the trial court’s restriction on future filings by Gerard was appropriately crafted to be a bar only until she paid the sanction previously imposed and well within its discretion given Gerard’s pattern of abusing the court system.

Although unpublished, the court’s reasoning will provide ammunition when faced with an unreasonable chronic filer of lawsuits.

Cannon County Courthouse photo courtesy SeeMidTn.com (aka Brent) flickr gallery under this creative commons license.

The case law, although there is not much of it, indicates that offers of judgment inclusive of costs are acceptable.

When an offer-of-settlement provision is implicated, as it is here, costs are added to any settlement, unless the terms of the settlement provide otherwise. Alberte v. Anew Health Care Serv., Inc., 2004 WI App 146, ¶6, 275 Wis.2d 571, 685 N.W.2d 614.  That case cites Marek v. Chesny, 473 U.S. 1, 6, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985), for the proposition that cost-inclusive offers are legitimate within the bounds of the statute:

If an offer recites that costs are included or specifies an amount for costs, and the plaintiff accepts the offer, the judgment will necessarily include costs; if the offer does not state that costs are included and an amount for costs is not specified, the court will be obliged by the terms of the Rule to include in its judgment an additional amount which in its discretion, it determines to be sufficient to cover the costs. In either case, however, the offer has allowed judgment to be entered against the defendant both for damages caused by the challenged conduct and for costs.

The Marek case analyzes the federal counterpart to Wis. Stat. §807.01, Fed. R. Civ. P. 68.

FRCP 68 is the Federal Rules’ equivalent of Wis. Stat. § 807.01(1), and is descended from the same New York statute from which 807.01 traces its lineage.  DeWitt Ross & Stevens, S.C. v. Galaxy Gaming and Racing Limited Partnership, 2004 WI 92, ¶35, 273 Wis.2d 577, 682 N.W.2d 839; see, e.g., Duello v. Board of Regents of University of Wisconsin System, 220 Wis.2d 554, 570, 583 N.W.2d 863 (Ct. App. 1998)(noting the similarity between FRCP 68 and Wis. Stat. §807.01 and finding it appropriate for Wisconsin courts to apply the state rule to federal claims); Donaldson v. West Bend Mut. Ins. Co., 2009 WI App 134, n. 9, 773 N.W.2d 470 (“When a state statute mirrors federal law, we may look to federal cases for guidance in interpreting the state statute.”)

I feel somewhat guilty that between the holidays and a recent crush of work, I’ve been unable to meaningfully post something for a while.  So here’s a pretty lengthy discussion of offers of judgment and plaintiffs who seek to have a court construe the offer before the plaintiff decides to accept or reject it.

Like many defense lawyers, I occasionally make offers of judgment under Wis. Stat. 807.01. The upside, while minor, is that the costs that are awarded to the prevailing party is shifted by the making (and subsequent rejection) of the offer. Also like many defense lawyers, my offers typically include a total amount offered for judgment. That is, judgment is offered in a given amount, including whatever potential costs are outstanding at the time. I might make an offer of judgment “in the total amount of Fifty Thousand and 00/00 Dollars ($50,000.00). Such amount includes all costs and fees.”

The plain language of the offer (in the total amount of Fifty Thousand,” “Such amount includes all costs and fees) specifically includes costs in the total amount of the offered judgment. A cost-inclusive offer makes sense, in that it sets the potential liability for the offering defendants at a specific number, rather than leaving an open-ended addition (costs) that the offering defendants have no way of accurately estimating before making the offer.  More in my next post on authority regarding the enforceability of cost-inclusive offers of judgment.

Plaintiffs, on the other hand, are fully capable of determining what their costs are, and can make a reasoned judgment to accept or reject the offer. Hadrian v. State Farm Mut. Auto. Ins. Co., 2008 WI App 188, ¶8, 315 Wis.2d 529, 763 N.W.2d 215 (party to whom offer is made must be able “to fully and fairly evaluate the offer from his or her own independent perspective.”)

Recently, I had a plaintiff ask the court to “construe” the offer (although the plaintiff had not yet accepted or rejected the offer), arguing that because the language of the statute contains the phrase “with costs,” that the offer does not comply with the statute. Attorneys are free to hold that opinion, and ignore or reject the offer for costs.  If their interpretation is accurate, they will suffer no ill effects, regardless of whether they recover more or less than the offer.  

Some plaintiffs may argue, despite their ability to understand the terms of the offer and simply ignore or reject the offer, that an offer specifically including the costs in the total amount offered, should be transformed by the court into an offer they believe comports with the language of the statute (that is, fifty thousand plus whatever accrued costs are at the time of the offer). 

There are multiple problems with this approach. First, it demands that the require the defendants to offer more to settle the matter than they intended to offer, or did offer. If the defendants intended to offer to settle the matter for $50,000 plus whatever unknown costs the plaintiffs have incurred, the defendants could make that offer. Second, I’ve never seen any authority that the court has the ability to unilaterally alter the terms of an unaccepted offer of judgment.

In fact, it is likely this issue, unless the plaintiff has either accepted or rejected the offer, is not ripe for consideration.  Among other reasons, the offer remains susceptible to revocation. until it’s accepted or time runs out.  See, e.g., Sonnenburg v. Grohskopf, 144 Wis.2d 62, 65-66, 422 N.W.2d 925 (Ct. App. 1988)(offers under Wis. Stat. §807.01(3) revocable at any time prior to acceptance); See, e.g., DeWitt Ross & Stevens, S.C. v. Galaxy Gaming and Racing Limited Partnership, 2004 WI 92, ¶39, 273 Wis.2d 577, 682 N.W.2d 839 (“If Wis. Stat. § 807.01 is to fulfill its purpose, litigants must have clear guidance about the proper scope of a valid offer.  A clear rule will help parties draft valid offers and assess their potential exposure to costs and prejudgment interest. Moreover, it will expedite dispute settlement by minimizing the need for post-trial litigation about rejected settlement offers. We further note that Wis. Stat. § 807.01(1) and 807.01(3) provides: “If notice of acceptance is not given, the offer cannot be given as evidence nor mentioned on the trial . . . .” A clear rule is therefore uniquely appropriate here because the parties may not obtain a ruling on the validity of the offer during trial.)

Plaintiffs who seek a court determination of the viability of the offer (or, for whatever reason, a judicial re-writing) of the offer before they make their decision to accept or reject the offer, oppose the goals of the statute.  If plaintiffs wish to reject a cost-inclusive offer, and recover less than the offer, they are free to argue to the court at that time that the offer does not comport with the statute. On the other hand, if the plaintiffs wish to accept the offer as it’s been presented, they can also do that, and then argue to the court that it should enter costs in addition, despite the language of the offer document.  

If a court accepts a motion ceeking a “construction” of the offer before the offer is accepted or rejected, the court removes the risk of rejecting the offer from the plaintiffs. This action opposes the purpose of the statute, which is to encourage settlement by increasing the downside of losing at trial.