Wisconsin Court of Appeals Decides Frequent Filers Case

By Attorney Gregg Herman
August 30, 2012

Normally, I don’t comment on unpublished, unciteable cases, but given the paucity of published appellate cases recently, I’ll make an exception.

The Court of Appeals affirmed a trial court decision in a case which falls under the classification of a “frequent filer.” – one of those cases where it seems that one party (sometimes both) have nothing better to do than to file motions and appeals.  (This is a subject I’ve written about previously.)  In this case, there are 528 – count ’em – separate entries in CCAP.   Yeah, I would classify that as a “frequent filer!”

There are couple of interesting aspects of this decision:

First, the appeals court affirms the trial court’s refusal to hear expert testimony by Dr. Mark Ackerman.  The trial court noted that Dr. Ackerman “had not met either child, or Sandberg [the mother], whose alleged anger issues were at issue.” Uh, if Dr. Ackerman had not met the children or the mother, what in the world was he supposed to testify about anyway?  Just wondering…

Second, the trial court put some brakes on future motions:

The court stated that it would not allow any motions to change custody or placement until the time limit for the current appeal had expired.  If the court’s decision was appealed, the motion could not be filed until the “matter comes back from the Supreme Court.” The court ruled that if Donahue brought a motion for change of custody or placement after that, “the motion is first sent to [the guardian ad litem] with a check for $600, and [the guardian ad litem] will make a recommendation to me if it’s in the best interests of the children to have that motion heard and decided.

To its credit, the Court of Appeals had no problem affirming this order.  The appellate court did not find it necessary to cite Puchner v. Hepperla, 2001 WI App 50, 241 Wis. 2d 545, 625 N.W.2d 609 as authority for barring future filings until sanctions are paid, but rather reasoned as follows:

Given the extreme history of litigation and animosity in this case, we see no defect in the court’s procedure in this regard.

Enough said!

One regret:  The Court of Appeals did not sanction Mr. Donahue for filing a frivolous appeal.  Somewhere, the court found enough to rule that “we cannot readily conclude that every argument Donahue makes is completely void of arguable merit.”

These frequent filer cases are (fortunately) rare, but they exert an undue cost on the legal system.  Perhaps the cost would be less if sanctions were imposed more frequently.

Attorney Gregg Herman is a founding partner of Loeb & Herman, LLC in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.