Summary
In Sutter v. State, 69 Wis. 2d 709, 717, 233 N.W.2d 391 (1975), a pre-1978 case, the mandate line stated, "Judgment reversed and cause remanded with directions to enter judgment not inconsistent with this opinion."
Summary of this case from Tietsworth v. Harley-DavidsonOpinion
No. 166 (1974).
Submitted under sec. (Rule) 251.54 June 5, 1975. —
Decided September 30, 1975.
APPEAL from orders of the circuit court for Marinette county: ROBERT J. PARINS, Circuit Judge for the Fourteenth Circuit, Presiding. Affirmed.
For the appellants the cause was submitted on the brief of Joseph C. Niebler and Miller Niebler S.C., all of Milwaukee.
For the respondents the cause was submitted on the brief of Victor A. Miller, attorney general, and Roy G. Mita, assistant attorney general.
On motion for rehearing:
For the appellant there was a brief by Joseph C. Niebler, Frederic G. Baldowsky and Miller Niebler, S.C. of Milwaukee.
For the respondent there was a brief by Bronson C. La Follette, attorney general, and Roy G. Mita, assistant attorney general.
Plaintiffs-appellants, Walter and Florence Sutter, appeal from an order denying their motions for relief from judgment entered in favor of the defendants-respondents, the state of Wisconsin, Department of Natural Resources and Lester Voight, and for leave to amend their complaint; and an order denying reconsideration thereof.
This controversy has been before this court on a previous occasion. A more complete statement of the facts underlying the present dispute can be found in Sutter v. Department of Natural Resources (1972), 56 Wis.2d 376, 202 N.W.2d 24.
On July 27, 1967, the plaintiffs executed an option to sell their 160-acre farm located on the top of "Thunder Mountain" near Crivitz, Wisconsin, for $29,000 to the state. On September 26, 1967, the state exercised its option. The plaintiffs signed the deed on February 19, 1968. On February 23, 1968, the state caused the deed to be mailed to the register of deeds for Marinette county for the purpose of recording. A state draft in the amount of $29,000 was mailed to the Peshtigo State Bank, as escrow agent. Disbursement of the funds to the plaintiffs was withheld when it was discovered that the plaintiffs had caused timber to be cut on the land.
Plaintiffs commenced an action for damages against the state in the circuit court for Dane county. Plaintiffs pled misrepresentation. This action was dismissed on the ground that the state was immune from such a suit claiming money damages.
Plaintiffs commenced a second action in the circuit court for Dane county, seeking to quiet title to the property in themselves on the ground of fraud in the inducement. This action was dismissed because the property was located in Marinette county and the circuit court for Dane county had no jurisdiction to quiet title to property in Marinette county.
On June 18, 1969, the plaintiffs gave notice to the state that they elected to terminate the contract, and commenced suit in equity in the circuit court for Marinette county, to have the contract rescinded and to have title to the property quieted in them. Plaintiffs alleged the breach of the option to purchase. The state counterclaimed for an order ejecting the plaintiffs on the ground that they were in unlawful possession of the property and, alternatively, for a judgment of specific performance of the option at the agreed upon purchase price, less the cost of timber cut since the date of the option. Following a trial to the court, the circuit court concluded that the state's actions were a repudiation of the original contract giving plaintiffs an option to terminate the contract. It ordered the deed canceled and the $29,000 escrow funds returned to the state. From this judgment the state appealed.
On November 28, 1972, this court reversed the trial court; the mandate of this court reading:
" By the Court. — Judgment reversed and cause remanded, with directions to enter judgment not inconsistent with this opinion."
The opinion reads:
"The judgment of the trial court is reversed and the cause remanded with directions to enter judgment on the counterclaim of the state for specific performance of the option at the agreed price, less the cost of timber cut since the date of the option in the amount of $314.68, and less any of the escrow funds applied to the benefit of the Sutters by reduction or satisfaction of the mortgage. Any interest earned on the escrow funds should be allowed to the plaintiffs."
A motion for rehearing was denied on January 30, 1973.
Upon remittitur, the trial court complied with this court's mandate and entered judgment on April 6, 1973, granting the state specific performance.
After a substitution of attorneys for plaintiffs, plaintiffs sought relief from such judgment. On October 16, 1973, plaintiffs filed motions to set aside the judgment and for permission to serve and file an amended complaint. The plaintiffs sought the following:
1. An order pursuant to secs. 274.36 and 269.44, Stats., permitting them to amend their complaint from one charging the defendants with a breach of contract to one charging misrepresentation in the inducement on three alternative causes of action; intentional, negligent and strict responsibility.
"274.36 Further proceedings in trial court. When the record and remittitur are received in the trial court:
"(1) If the trial judge is ordered to take specific action, he shall do so as soon as possible.
"(2) If a new trial is ordered, the clerk of the trial court, upon receipt of the remitted record, shall place the matter on the trial calendar.
"(3) If action or proceedings other than those mentioned in subs. (1) and (2) is ordered, any party may, within one year after receipt of the remitted record by the clerk of the trial court, make appropriate motion for further proceedings. If further proceedings are not so initiated, the action shall be dismissed except that an extension of the one-year period may be granted, on notice, by the trial court, if the order for extension is entered during the one-year period."
"269.44 Amendments of processes, pleadings and proceedings. The court may, at any stage of any action or special proceeding before or after judgment, in furtherance of justice and upon such terms as may be just, amend any process, pleading or proceeding, notwithstanding it may change the action from one at law to one in equity, or from one on contract to one in tort, or vice versa; provided, the amended pleading states a cause of action arising out of the contract, transaction or occurrence or is connected with the subject of the action upon which the original pleading is based."
See: Whipp v. Iverson (1969), 43 Wis.2d 166, 168 N.W.2d 201.
2. An order pursuant to secs. 274.36 and 269.52, Stats., permitting plaintiffs to amend their action from plaintiffs' mistaken remedy of rescission for breach of contract to rescission for misrepresentation in the inducement.
"269.52 Mistaken remedy; no dismissal; amendment; transfer to court having jurisdiction. In all cases where upon objection taken or upon demurrer sustained or after trial it shall appear to the court that any party claiming affirmative relief or damages has mistaken his remedy, his action, proceeding, cross complaint, counterclaim, writ, or relation shall not be finally dismissed or quashed, but costs shall be awarded against him and he shall be allowed a reasonable time within which to amend and the amended action or proceeding shall continue in that court except in case that court has no jurisdiction to grant the relief sought, in which case the action in whole or in such divisible part in which jurisdiction is lacking shall be certified to some other court which has jurisdiction."
3. An order pursuant to sec. 269.46(1), Stats., relieving plaintiffs from said judgment obtained through their mistake, inadvertence, surprise or excusable neglect, and permitting plaintiffs to amend their complaint to one charging misrepresentation in the inducement of the option to purchase.
"269.46 Relief from judgments, orders and stipulations; review of judgments and orders. (1) The court may, upon notice and just terms, at any time within one year after notice thereof, relieve a party from a judgment, order, stipulation or other proceeding against him obtained, through his mistake, inadvertence, surprise or excusable neglect and may supply an omission in any proceeding. In addition to the required affidavits, all motions to vacate a judgment entered upon default or cognovit and to obtain a trial upon the merits shall be accompanied by a proposed verified answer disclosing a defense.
"(2) No agreement, stipulation or consent, between the parties or their attorneys, in respect to the proceedings in an action or special proceeding, shall be binding unless made in court and entered in the minutes or made in writing and subscribed by the party to be bound thereby or by his attorney.
"(3) All judgments and court orders may be reviewed by the court at the time within 60 days from service of notice of entry thereof, but not later than 60 days after the end of the term of entry thereof."
In support of the motions, plaintiffs submitted the proposed verified amended complaint, an affidavit of their present attorney, Joseph C. Niebler, an affidavit of their previous attorney, Steven L. Cohen, and an affidavit of the plaintiff, Walter Sutter. The affidavit of Mr. Niebler sets forth the previous history of the litigation. The affidavit of Mr. Cohen confirms the affidavit of Mr. Neibler; and states that he was unaware of a cause of action in equity based upon negligent misrepresentation and strict liability theories. He was aware of the "political climate" in Marinette county concerning the acquisition of the Sutter Farm for Thunder Mountain State Park, considered an action at law inappropriate before a Marinette county jury, and considered rescission based upon breach of contract as the only viable cause of action for plaintiffs in Marinette county.
An order denying plaintiffs' motions was entered on January 3, 1974. In a written decision the trial court questioned its jurisdiction to act stating that the parties should be concluded by the mandate of the supreme court as to all matters actually presented or which might have consistently been presented to either the trial court on trial or the supreme court on appeal. However, it proceeded to assume jurisdiction and exercise its discretion. It observed that the plaintiffs were seeking a second trial to avoid the consequences of the option granted to the state. The trial court denied relief stating that the plaintiffs had commenced three lawsuits; that the pleadings were deliberately drafted; that all questions of law and fact were available to the plaintiffs; that no inadvertent mistake had been made; and that, since plaintiffs had elected a deliberate choice of strategy, they are not entitled to another "kick at the cat." An order denying plaintiffs' motion for reconsideration was entered on February 14, 1974. Plaintiffs appeal from these orders.
The plaintiffs contend that the trial court either erred in failing to exercise its discretion to grant relief from judgment or abused its discretion in its exercise; and ask this court to reverse the orders of the trial court in the interest of justice.
The trial court was without power to grant the relief requested. After providing in a general way for the mandate of this court, sec. 274.35, Stats., declares:
". . . In all cases the supreme court shall remit its judgment or decision to the court below and thereupon the court below shall proceed in accordance therewith."
It is desirable that litigation come to an end. This controversy has been fully tried upon the merits and the rights of the parties conclusively determined. The judgment of the circuit court conforms to the mandate of this court and is correct. The remittitur of this court was that the cause should be remanded with specific directions to the circuit court that judgment be entered granting the state's counterclaim for specific performance. This court did not direct the circuit court to proceed with the case or to open the case, nor did this court leave open any issue as to whether the state was entitled to specific performance of the option to purchase granted to it by the plaintiffs. This court directed that the litigation come to an end.
In Hoan v. Journal Co. (1942), 241 Wis. 483, 485, 6 N.W.2d 185, this court stated:
". . . a judgment of a trial court when affirmed by this court becomes in legal effect the judgment of this court and the trial court has no power to vacate or set it aside."
This rule is nonetheless applicable in cases where there is an affirmance than when some other specific directions are given. Ean v. Chicago, M. St. P.R. Co. (1898), 101 Wis. 166, 76 N.W. 329.
The trial court has no power to grant relief from judgment pursuant to sec. 269.46, Stats., upon the grounds of "mistake, inadvertence, surprise or excusable neglect" where the judgment has been specifically directed by this court. In Ean, supra, page 170, this court determined that sec. 2832, R.S. 1878, now sec. 269.46, had no application to a judgment which has been directed by the supreme court on appeal:
"It would seem that this section, like sec. 2832, can only have application to judgments of the circuit court, and not to those which by operation of law have become judgments of this court. Any other conclusion would be hazardous in the extreme, in that it would be destructive of the very foundation upon which the judgments of courts of last resort must rest. It must be presumed that it was the legislative intention that the law should only apply to such judgments as were distinctively those of the court in which the application to vacate is made. It may be doubtful if the legislature has the power to pass a law which will put the judgments of this court at the mercy of a lower court. The theory upon which our system of government was created was that the three branches — executive, legislative, and judicial — should be co-ordinate and independent. The constitution provides that this shall be a court of last resort, — a court whose judgments, so far as they relate to state polity, are final and conclusive."
This has been repeatedly declared by this court. Milwaukee County v. H. Neidner Co. (1936), 220 Wis. 185, 263 N.W. 468, 265 N.W. 226, 266 N.W. 238; Belt Line Realty Co. v. Dick (1930), 202 Wis. 608, 233 N.W. 762.
The trial court has no authority to amend the pleadings after remittitur with the mandate of this court providing specific directions for the entry of a particular judgment. Generally, amendments are not permissible on remand where the case was determined on the merits. 5B C.J.S., Appeal and Error, p. 591, sec. 1969(2). After final judgment has been rendered or directed on appeal, ordinarily the trial court has no power to allow the amendment of the pleadings. 5B C.J.S., Appeal and Error, p. 593, sec. 1969(3). This court has followed this rule. Patten Paper Co. (Limited) v. Green Bay Mississippi Canal Co. (1896), 93 Wis. 283, 66 N.W. 601, 67 N.W. 432, reversed on other grounds, 172 U.S. 58, 19 Sup. Ct. 97, 43 L.Ed. 364.
Plaintiffs cite Fullerton Lumber Co. v. Torborg (1957), 274 Wis. 478, 80 N.W.2d 461, and sec. 274.36(3), Stats., for the proposition that the trial court may determine matters left open and in the absence of specific directions, is generally vested with a legal discretion to take such action, not inconsistent with the order of this court, as seems wise and proper under the circumstances. In Fullerton Lumber Co., supra, the plaintiff had sought an injunction to enforce a restrictive covenant and damages. The trial court held the covenant to be invalid and made no finding as to damages. On the first appeal, Fullerton Lumber Co. v. Torborg (1955), 270 Wis. 133, 70 N.W.2d 585, this court reversed; holding the covenant to be valid. Damages were not referred to by either party on appeal. The trial court refused to determine damages after remand; where upon another appeal this court held that consideration of damages would not be inconsistent with the first mandate. This court went on to observe, however, that its mandate "settled for all time" the issue of the validity of the restrictive covenant.
While plaintiffs' statement of the law is correct, it has no application to the facts here. Here the mandate directed the entry of a particular judgment. Nothing was left open and the cause was not remanded to the lower court for further proceedings. Whether the state was entitled to specific performance upon the option to purchase was finally determined by this court. The relief the plaintiffs seek is inconsistent with the mandate of this court.
Finally, plaintiffs maintain that the real controversy was not tried; and that this court should reverse in the interest of justice. Reversal in the interest of justice is not required in this case. The reasons for which can be best demonstrated by the reasoning and observations of the trial court. The plaintiffs were represented by competent counsel. Three lawsuits had been commenced; one for rescission in equity upon the ground of misrepresentation. All questions of law and fact were available to the plaintiffs. No inadvertent mistake was made, but a deliberate choice of strategy taken. Justice does not require that plaintiffs be twice afforded their day in court. In John Mohr Sons, Inc. v. Jahnke (1972), 55 Wis.2d 402, 408, 198 N.W.2d 363, this court stated:
". . . Since the plaintiff chose to pursue its claim on the language of the contract, we do not think it ought now be permitted to change the theory of its case to one of shop rights. Sec. 251.09, granting this court the power of discretionary reversal, was not intended to allow plaintiff to proceed to a trial on a valid theory of a cause of action, and losing on that theory, to have a second trial on a different, valid theory of a cause of action. When there are alternative causes of action and one makes a choice, there is little room for arguing the real issue has not been tried."
By the Court. — Orders affirmed.