Jackson v. Benson

*27PER CURIAM.

¶ 1. Respondents, Carl Gobel, Warner Jackson, Father Thomas Mueller, and Wendell Harris, and Attorney Ed Garvey and the law firm of Garvey, Stoddard, S.C. move the court for reconsideration of Part II of its opinion in Jackson v. Benson, 2002 WI 14, 249 Wis. 2d 681, 639 N.W.2d 545,1 finding the motion to vacate the court's 1998 decision in the case to be frivolous and remanding the matter to the Dane County Circuit Court for a determination of the amount of reasonable attorney fees and costs.

*28¶ 2. Respondents Gobel, Jackson, Mueller and Harris have also filed a separate motion to modify the sanctions order to remove them from the obligation to pay any sanctions which might ultimately be imposed. The State of Wisconsin has expressly indicated it does not oppose a modification of the sanctions order to exclude the individual respondents from any obligation to pay sanctions, and no party has objected to such a modification.

¶ 3. The motion to modify the sanctions order to remove respondents Gobel, Jackson, Mueller and Harris from any obligation to pay sanctions is granted.

¶ 4. The motion for reconsideration of Part II of this court's opinion, which found the motion to vacate frivolous and remanded the matter to the Dane County Circuit Court for a determination of the amount of reasonable attorney fees and costs, is denied without costs.

¶ 5. The dissent deserves some response. We all agree, including the dissenting justice, that "[t]he respondent's inordinate delay in filing the motion to vacate mocks the fundamental and vital principle of finality, which is essential to the operation of a society governed by law." Jackson v. Benson, 2002 WI 14, ¶ 22, 249 Wis. 2d 681, 639 N.W.2d 545. (Emphasis added.) Accordingly, four of the five members sitting on this case found the respondent's motion frivolous and awarded fees, costs, and attorney fees.

¶ 6. Both Wis. Stat. § 809.25(3)(a) and § 814.025(1) are mandatory. See § 809.25(3)(a) ("If an appeal or cross-appeal is found to be frivolous by the court, the court shall award to the successful party *29costs, fees and reasonable attorney fees under this section."); § 814.025 ("If an action ... is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party costs determined under s. 814.04 and reasonable attorney fees."); see also Jandrt v. Jerome Foods, Inc., 227 Wis. 2d 531, 576, 597 N.W.2d 744 (1999); Sommer v. Carr, 95 Wis. 2d 651, 653-54, 291 N.W.2d 301 (Ct. App. 1980), rev'd on other grounds, 99 Wis. 2d 789, 299 N.W.2d 856 (1981). Every single reported case in the last 20 years involving a finding of frivolousness has resulted in the award of attorney fees and costs. We have searched for any case involving a finding of frivolousness in which attorney fees and costs were not awarded. We have found none. See, e.g., Newhouse v. Citizens Sec. Mut. Ins. Co., 176 Wis. 2d 824, 840-42, 501 N.W.2d 1 (1993); Elmakias v. Wayda, 228 Wis. 2d 312, 318-23, 596 N.W.2d 869 (Ct. App. 1999); Chase Lumber & Fuel Co., Inc. v. Chase, 228 Wis. 2d 179, 206-10, 596 N.W.2d 840 (Ct. App. 1999); Gardner v. Gardner, 190 Wis. 2d 216, 248-51, 527 N.W.2d 701 (Ct. App. 1994); Schapiro v. Sec. Sav. & Loan, 149 Wis. 2d 176, 187-89, 441 N.W.2d 241 (Ct. App. 1989); Tracy v. DOR, 133 Wis. 2d 151, 162-63, 394 N.W.2d 756 (Ct. App. 1986); Wengerd v. Rinehart, 114 Wis. 2d 575, 580-84, 338 N.W.2d 861 (Ct. App. 1983).

¶ 7. JON E WILCOX, ANN WALSH BRADLEY, and DIANE S. SYKES, JJ., did not participate.

A copy of the February 19, 2002 opinion is attached to this decision as Appendix B.