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August 26, 1983


Appeal from orders of the Circuit Court for Richland County: James P. Fiedler, Judge.

Gartzke, P.j., Dykman, J. and W.l. Jackman, Reserve Judge.

The opinion of the court was delivered by: Gartzke

Earle and Juanita Rinehart have appealed from two orders relating to a March 15, 1979 judgment requiring them to specifically perform their contract to sell their farm to Joseph Wengerd. The first order appealed from was entered November 24, 1981. It denied relief from an order entered November 1, 1979 after Rineharts failed to perform as required by the amended judgment. Among other things, it extended the time for Wengerd to pay the purchase price. The second order appealed from was entered May 28, 1982. It denied Rineharts' motion for relief from the judgment and the orders amending it. Rineharts did not appeal the judgment or amendatory orders.

The primary issues are whether the November 1979 order and the March 1979 judgment and its amendatory orders are void. We conclude they are not. A secondary issue is whether the trial court erred by awarding attorney fees and costs on a motion, pursuant to sec. 814.025, Stats., the frivolous claims statute. We conclude that the fees and costs cannot be awarded without an evidentiary hearing and reverse the first order appealed to the extent of the award. We otherwise affirm both orders.

1. November 24, 1981 Order

Rineharts' pro se motion to set aside the November 1979 order was based on sec. 806.07(1) (d), Stats., which authorizes a trial court to relieve a party from a void judgment. Neither the statute nor our case law applying it has defined "void." Because sec. 806.07 is based on Fed. R. Civ. P. 60(b) which also allows a trial court to set aside a void judgment, federal precedents are helpful.

A judgment is not "void for purposes of Fed. R. Civ. P. 60(b) (4) unless the court rendering it lacked subject matter or personal jurisdiction or denied a party due process of law. United States v. McDonald, 86 F.R.D. 204, 208 (N.D. Ill. 1980); DiCesare-Engler Productions, Inc. v. Mainman, Ltd., 81 F.R.D. 703, 704 (W.D. Pa. 1979). The federal cases are consistent with Reading v. Reading, 268 Wis. 56, 60, 66 N.W.2d 753, 755 (1954), stating in dictum that if a trial court had personal and subject matter jurisdiction, its judgment is not void even if based on errors of law or fact.

The November 1, 1979 order was entered following a hearing held October 18, 1979. The trial court scheduled the hearing on its own motion when it learned that the closing had not occurred, notwithstanding the judgment and amendatory orders which had directed a closing in the spring of 1979. The court found that Rineharts had attempted to frustrate the judgment and orders and had made it impossible for Wengerd to perform. The order extended the time for Wengerd to pay the Rineharts, directed them to deliver the title abstract to Wengerd, fixed the time for payment if Rineharts' title was merchantable or if title defects existed, and directed Wengerd to deposit the purchase price with the clerk. Rineharts did not appeal from the order.

Rineharts filed their motion September 19, 1980 for relief from the November 1979 order. We have scrutinized Rineharts' supporting affidavits for a claimed factual basis showing that when the trial court entered the order, it lacked jurisdiction or denied the Rineharts due process of law. *fn1 The first affidavit alleges no facts touching jurisdiction or due process. Rineharts filed a second affidavit in September 1981 to support their claim that the November 1979 order was void. It describes several events, almost all of which occurred well after the order was entered and do not touch jurisdictional or due process issues.

Rineharts have appellate counsel, who raise two groups of issues pertaining to the November 24, 1981 order. The first group consists of new assertions: that the original judgment and orders amending it are void for jurisdictional, constitutional, and statutory reasons. Rineharts raised none of those issues in their motion for relief. A firmly established standard of judicial review is that, normally, an appellate court will not examine contentions raised for the first time on appeal. Wirth v. Ehly, 93 Wis. 2d 433, 443, 287 N.W.2d 140, 145 (1980). Because the same issues are properly raised by counsel in the appeal from the order entered in May 1982, we discuss them in that part of this opinion.

The second group of issues pertains to the way the trial court held the motion hearing and to allowance of costs and fees in the November 1981 order. Counsel contend that the hearing was illusory and denied the Rineharts procedural due process. Juanita Rinehart testified in support of the motion. She offered seven exhibits in evidence, including the two supporting affidavits. The court received the exhibits but said it would not read them. The court refused to allow her to call Wengerd's lawyer as a witness. The court ruled that the matter had become final on the November 1979 order, Rineharts' recourse having been to appeal from or to move for rehearing of that order.

A trial court has considerable discretion in the conduct of a trial, and its rulings will not be disturbed unless a party's rights have been prejudiced. Valiga v. National Food Co., 58 Wis. 2d 232, 253, 206 N.W.2d 377, 389 (1973). Juanita Rinehart made no attempt to tell the court the purpose or relevance of her proposed examination of Wengerd's lawyer. Ordinarily, under Sec. 901.03(1) (b), Stats., a party must make an offer of proof concerning the substance of excluded testimony to preserve the issue for appeal. Lambert v. State, 73 Wis. 2d 590, 605-06, 243 N.W.2d 524, 531-32 (1976). We cannot decide whether the Rineharts were denied due process by the court's refusal to allow Wengerd's lawyer to be called as a witness when they failed to make an offer of proof or at least advise the court of the areas into which inquiry was desired.

Although the court's exasperation is understandable, we do not approve the trial court's outright refusal to examine the exhibits introduced by Juanita Rinehart. At the close of the hearing which resulted in the November 1979 order, the court said Rineharts had used every available method to frustrate the sale and had flouted the court's orders. At the close of the hearing which resulted in the November 1981 order, the court said the proceedings had been a complete waste of time and held that Rineharts' motion was frivolous. Our examination of the exhibits convinces us that the trial court's assessment was accurate. The exhibits do not address the issues raised by the motion for relief from judgment, due process and jurisdiction. Under these circumstances, the Rineharts were not prejudiced by the court's refusal to examine the exhibits and the error, if any, was harmless. Sec. 805.18(2), Stats.

The trial court allowed Wengerd $630 for attorney's fees and travel expenses under sec. 814.025, Stats., the frivolous claims statute. A party seeking relief under sec. 806.07, Stats., does so by motion. Sec. 806.07(1). Rineharts contend that sec. 814.025 does not allow an award of costs and attorney's fees on a frivolous motion. Section 814.025(1) requires the trial court to award the successful party costs and reasonable attorney's fees "f an action or special proceeding commenced or continued by a plaintiff or a counterclaim, defense or cross complaint commenced, used or continued by a defendant is found . . . to be frivolous by the court . . . ." The statute refers to an action, special proceeding, counterclaim, defense or ...

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