Opinion
No. 2005AP507.
Opinion Filed: September 21, 2006.
APPEAL and CROSS-APPEAL from a judgment and orders of the circuit court for Dane County: MICHAEL N. NOWAKOWSKI, Judge. Affirmed in part and reversed in part.
Before Dykman, Deininger and Higginbotham, JJ.
Seonkyu Kang appeals from three postjudgment orders denying his motions for reconsideration, relief from judgment, and a new trial to seek additional documents from the University of Wisconsin under Wisconsin's open records law, and to challenge the authenticity of documents already released to him. Kang contends that the trial court erred in denying him a new trial because the record indicates the University is continuing to withhold documents to which he is entitled and there is a serious question as to the authenticity of the documents it did release. Kang also contends his attorney abandoned his duty as his lawyer and the trial court committed misconduct by "backdating" the final judgment. The University cross-appeals from the portion of the judgment awarding Kang attorney fees under WIS. STAT. § 19.37(2)(a). The University argues the court erred in determining that Kang had "prevailed in substantial part" in the action as required under the statute. Because we conclude that the trial court reasonably exercised its discretion in denying Kang's postjudgment motions, but incorrectly interpreted "prevailed in substantial part" under § 19.37(2)(a), we affirm the orders and reverse the portion of the judgment awarding attorney fees.
WISCONSIN STAT. §§ 19.31- 19.39 (2003-04). All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
Background
¶ 2 The following is taken from the parties' stipulation of facts and other materials. Seonkyu Kang entered the graduate program in the University of Wisconsin-Madison's Department of Mechanical Engineering (ME Department) in January 1998. Kang completed three semesters of graduate work, and then decided to pursue a Ph.D. in the ME Department. He took the ME Department's Ph.D. qualifying examination on three separate occasions: September 1999, February 2000, and February 2001. The final decision by the Ph.D. qualifying committee for each exam was "fail," denying Kang admittance into the Ph.D. program.
¶ 3 Kang submitted a written request to the University of Wisconsin's ME Department in November 2001, for information relating to his examinations. Kang made numerous open records requests between November 2001 and February 2003, both directly and through counsel. In response to Kang's open records requests, the University released some documents, but delayed or withheld other documents to which Kang was entitled. On March 13, 2003, Kang, through counsel, filed an action for mandamus under WIS. STAT. §§ 19.31- 19.39, asking the court to order the University to produce the documents they continued to withhold.
¶ 4 The University then moved for partial summary judgment on June 9, 2004, asking the court to dismiss some of Kang's claims and limit the issues for trial to actual and punitive damages. The court found that Kang had presented no evidentiary materials showing that any additional records existed and therefore limited the issue at trial to damages. The court held a one-day trial on August 11, 2004, and issued its oral ruling on September 17, 2004.
¶ 5 The court filed its summary judgment order, motion in limine order, and final order and judgment on January 5, 2005. The court found that while the University had intentionally and willfully withheld documents to which Kang was entitled under the open records law, they were not continuing to withhold any such documents. It awarded Kang actual and punitive damages, as well as about $10,000 in attorney fees. Following the ruling, on January 13, 2005, Kang's attorney was permitted to withdraw from the case on Kang's request, allowing Kang to represent himself.
¶ 6 Kang then filed a series of pro se motions to the court, requesting reconsideration, a new trial, and relief from judgment. The first motion, filed January 25, 2005, claimed the University had not released all the relevant documents he had requested and challenged the authenticity of the documents it had released. The court summarily denied the motion, stating that there were no grounds to reopen the case or order a new trial because Kang had submitted no evidence that a new trial would result in a different decision than it had already reached. Then, on February 11, 2005, Kang moved the court for an order to allow him to challenge the authenticity of several documents and to order the University to produce all originals of documents he had received. The court again denied the motion, stating the case was closed by final judgment and Kang had given no basis to reopen it.
¶ 7 Kang then filed a notice of appeal from the summary judgment order, motion in limine order, and final order and judgment on February 21, 2005. He also submitted another motion to the trial court on February 21, 2005, asserting that the date of the final judgment was incorrectly entered and again stating his claim for a new trial. The court denied the motion, noting that it was filed after Kang filed his notice of appeal and stating it would no longer receive motions in this matter. Kang now appeals from the denial of his motions for reconsideration, a new trial, and relief from judgment. The University cross-appeals from the portion of the judgment awarding Kang attorney fees.
Discussion
¶ 8 Kang argues the trial court erred in denying his postjudgment motions for reconsideration, a new trial, and relief from judgment under WIS. STAT. §§ 805.17(3), 806.07(1)(b)(c) and (h), and 805.15(1) and (3). We review the trial court's decision to deny the motions for an erroneous exercise of discretion. Koepsell's Olde Popcorn Wagons, Inc., v. Koepsell's Festival Popcorn Wagons, Ltd. , 2004 WI App 129, ¶¶ 6, 48, 275 Wis. 2d 397, 685 N.W.2d 853 (citation omitted).
¶ 9 The University argues that Kang's appeal must be dismissed because his notice of appeal states he appeals from the summary judgment order, motion in limine order, and final order and judgment entered January 5, 2005, while his brief addresses the postjudgment orders denying his motions filed January 28, February 17, and March 10, 2005. However, we will not dismiss an appeal for "inconsequential violations of the rules of appellate procedure." See Carrington v. St. Paul Fire Marine Ins. Co. , 169 Wis. 2d 211, 217 n. 2, 485 N.W.2d 267 (1992) (citation omitted) (finding notice of appeal from summary judgment rather than from actual judgment was an inconsequential violation). We conclude that the defect in Kang's notice of appeal was inconsequential because the notice was timely and Kang's arguments make clear he is appealing from the denial of his postjudgment motions. Thus, we will address the merits of Kang's appeal. We address each of the statutory provisions Kang invokes in turn.
We will not discuss Kang's arguments that his attorney abandoned him during trial or that the trial court intentionally "backdated" the final judgment. If Kang believes his attorney committed professional misconduct, he may bring the matter before the Office of Lawyer Regulation. See In re Disciplinary Proceedings Against Knickmeier , 2004 WI 115, 275 Wis. 2d 69, 683 N.W.2d 445. The issue is not properly before us on appeal. We also note that Kang's argument that the trial court "backdated" the final judgment order was not submitted to the trial court until after Kang filed his notice of appeal. Because the issue was not properly raised in the trial court, it is not properly before us on appeal. See Manke v. Physicians Ins. Co. of Wisconsin, Inc. , 2006 WI App 50, ¶ 64, 289 Wis. 2d 750, 712 N.W.2d 40 (citation omitted). Regardless, the argument is without merit. Kang's concern over the date of the final judgment is, as the University points out, simply a misunderstanding of the process for filing and docketing final judgments.
¶ 10 First, a motion for reconsideration must contain newly discovered evidence or establish a manifest error of law or fact, which "is not demonstrated by the disappointment of the losing party." Koepsell's , 275 Wis. 2d 397, ¶ 44 (citation omitted). The trial court found that Kang's motion did not present any basis for reconsideration of whether the University continued to withhold documents or the authenticity of those released. We agree that Kang's motion merely expressed his disappointment with the court's findings and therefore does not present any grounds for reconsideration. See id.
¶ 11 Next, under WIS. STAT. § 805.15(3), a new trial based on newly discovered evidence is granted only if "[t]he new evidence would probably change the result." The trial court found that nothing Kang presented in his motion indicated it would probably change the result of the court's decision. We agree. Kang's personal dissatisfaction with the results of the trial and his unsupported belief that the University is withholding documents, and that it forged others, is not enough to grant a new trial.
¶ 12 Finally, under WIS. STAT. § 806.07(1)(b), (c) and (h), a trial court may provide relief from judgment upon a "plain case of misrepresentation" by the adverse party or under "extraordinary circumstances." Johnson v. Johnson , 157 Wis. 2d 490, 498-99, 460 N.W.2d 166 (Ct.App. 1990). Again, we agree with the trial court that Kang did not present any valid basis in his motion to find that relief from judgment was appropriate under the statutes. Additionally, Kang asserts no arguments on appeal to show that the trial court erroneously exercised its discretion in denying his motions. Therefore, we conclude that the trial court properly exercised its discretion in denying each of Kang's motions.
¶ 13 Next, we turn to the University's cross-appeal. The University contends that the trial court improperly awarded attorney fees under WIS. STAT. § 19.37(2)(a) because Kang did not "prevail in substantial part" in the action. The interpretation of a statute is a question of law, and we therefore review the legal standard for awarding attorney fees under § 19.37(2)(a) de novo. See Anderson v. MSI Preferred Ins. Co. , 2005 WI 62, ¶ 18, 281 Wis. 2d 66, 697 N.W.2d 73. We agree that Kang did not "prevail in substantial part" in the action as required for the recovery of attorney fees under § 19.37(2)(a).
¶ 14 Under Wisconsin's open records law, if an authority denies or delays access to records, "[t]he requester may bring an action for mandamus asking a court to order release of the record." WIS. STAT. § 19.37(1)(a). Section 19.37(2) lists the costs, fees, and damages recoverable in a mandamus action, depending on the type of documents sought. Thus, § 19.37(2)(a) provides that a party seeking general public records under § 19.35(1)(a) is entitled to attorney fees "if the requestor prevails in whole or in substantial part" in the action. However, § 19.37(1)(b) provides that a party seeking "personally identifiable information" under § 19.35(1)(am) is entitled to actual damages if the authority willfully or intentionally withheld the documents, but does not provide attorney fees. Under the plain language of the statute, then, the legislature has provided attorney fees only in a mandamus action to obtain § 19.35(1)(a) records, and only if a requester prevails, or prevails in substantial part, in the action.
See Borreson v. Yunto , 2006 WI App 63, ¶ 8, ___ Wis. 2d ___, 713 N.W.2d 656 ("Statutory interpretation begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.") (citation omitted).
¶ 15 The University argues that the trial court erred in concluding that Kang prevailed in substantial part under WIS. STAT. § 19.37(2)(a) because it found all the required § 19.35(1)(a) documents were released before the action was commenced. The court found the only documents "not provided to the plaintiff until after this litigation was commenced in March of 2003" were "records containing solely personally identifiable information." Therefore, the court concluded: "The plaintiff has failed to meet his burden to show that the defendant withheld any records he had requested under section 19.35(1)(a)." However, the court went on to conclude that "[t]he plaintiff prevailed in substantial part in his claim that the defendant failed to grant access to him of certain records he had requested under section 19.35(1)(a)." Thus, the trial court concluded that Kang prevailed in substantial part in the action because he proved that the University delayed releasing § 19.35(1)(a) documents to him before he commenced his action for mandamus. However, we have held that a requester only prevails in substantial part if the mandamus action causes § 19.35(1)(a) documents to be released.
¶ 16 To establish that a requester has "prevailed in substantial part" under WIS. STAT. § 19.37(2)(a), the requester must show the action "could reasonably be regarded as necessary to obtain the information and that a causal nexus exists between that action and the [authority's] surrender of the requested information." Eau Claire Press Co. v. Gordon , 176 Wis. 2d 154, 159-60, 499 N.W.2d 918 (Ct.App. 1993) (citing State ex rel. Vaughan v. Faust , 143 Wis. 2d 868, 871, 422 N.W. 2d 898, 899 (Ct.App. 1988)). Thus, a party must show that the mandamus action was necessary to gain the information and also a "substantial factor" in the release of the information in order to prove it "prevailed in substantial part" in the action. Id.
¶ 17 In Eau Claire , a newspaper requested from the city of Chippewa Falls documents containing information about the city's settlement of a discrimination claim by Pat Brick. Id. at 157. The city refused, claiming the settlement was confidential. Id. After the newspaper brought an action for mandamus, the city obtained Brick's permission to disclose the settlement amount. Id. at 158. We concluded that the newspaper was entitled to attorney fees because the only reasonable inference from the facts was that the mandamus action was a substantial factor in the decision to release the documents. Id. at 162.
¶ 18 Similarly, in WTMJ, Inc. v. Sullivan , 204 Wis. 2d 452, 460, 555 N.W.2d 140 (Ct.App. 1996), we concluded the award of attorney fees was appropriate because the trial court had reasonably found WTMJ's mandamus action, filed after the State denied it access to prison records, had caused the State to release the records. We explained:
The State asserts that its good faith, not this lawsuit, caused the release of the records. But that is only one inference which could be drawn from the State's change of position after this lawsuit was filed. . . . [W]hat the State must now show to prevail is that this lawsuit was not a cause of the document's release.
Id.
¶ 19 We conclude that in this case, the University has shown that Kang's mandamus action was not a cause of the release of any WIS. STAT. § 19.35(1)(a) documents. The trial court found that all relevant § 19.35(1)(a) documents had been released to Kang before trial was commenced. The only documents Kang obtained as a result of filing his lawsuit were § 19.35(1)(am) documents. Thus, Kang's action in mandamus caused the production of only § 19.35(1)(am) documents, and he is therefore not entitled to attorney fees.
¶ 20 Finally, we note that denying Kang attorney fees for his mandamus action to obtain records from the University could be considered contrary to legislative intent in enacting the open records law. The statute states, in pertinent part: "[I]t is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them." WIS. STAT. § 19.31. Further, the statute clearly intends to prevent delay, allowing an action for mandamus "[i]f an authority withholds . . . or delays granting access to a record or part of a record. . . ." Section 19.37(1)(a). However, as enacted, the statute does not provide for recovery of attorney fees on the present facts. Although Kang clearly expended a significant amount of money to obtain documents to which he was entitled, the fact that Kang obtained those documents before commencing this action precludes his recovery of attorney fees. Therefore, because we conclude that Kang did not prevail in substantial part in his mandamus action for the release of § 19.35(1)(a) documents, we reverse the portion of the judgment awarding attorney fees.
By the Court. — Judgment and orders affirmed in part and reversed in part.