CHRISTOPHER SANDMIRE, Applicant
ZIEGLER BUILDERS, Employer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on July 27, 2007. Respondent Ziegler Builders submitted an answer to the petition and briefs were submitted by the parties. At issue is whether or not a bad faith penalty against Ziegler Builders is due pursuant to Wis. Stat. § 102.18(1)(bp), based on the circumstances surrounding its payment of $14,240.20 to the applicant as ordered to do by the commission decision of August 9, 2005, which was affirmed by Dane County Circuit Court in its decision of May 23, 2006.
The commission has carefully reviewed the entire record in this matter and hereby reverses the administrative law judge's Findings and Order. The commission makes the following:
Ziegler appealed to Dane County Circuit Court and on May 23, 2006, Circuit Judge Stuart Schwartz issued a Decision and Order affirming the commission's decision in its entirety. The Decision and Order was also entered with the Dane County Clerk of Court on May 23, 2006. On May 30, 2006, the applicant served Ziegler with a notice of entry of the Decision and Order, thus shortening the appeal period to 45 days from May 23, 2006.(1) The last day for a timely appeal to the court of appeals would have been July 7, 2006.
Ziegler failed to make payment in accordance with Judge Schwartz' Decision and Order, and because of this non-payment, applicant's attorneys filed a Motion for Judgment and Motion for Order for Supplemental Examination. These motions were filed together to the circuit court on or about October 5, 2006. On October 6, 2006, Judge Schwartz issued a Judgment against the employer in the amount of $14,240.20, as well as an Order for Supplemental Examination requiring the employer to appear before the court with relevant documents on November 3, 2006. On October 27, 2006, Ziegler finally issued a check for $14,240.20 in accordance with the circuit court's decision. The check was issued to Ziegler's attorney, who then drafted a check in that amount to applicant's attorney, and mailed it on November 1, 2006. The applicant's attorney received the check on November 3, 2006.
In the meantime, on August 14, 2006, the applicant had filed another application claiming another bad faith penalty due to Ziegler's failure to pay him the $14,240.20 due in accordance with the circuit court decision. This bad faith claim is the issue currently before the commission.
The administrative law judge's order of July 27, 2007, dismissed this bad faith claim on the basis that payment was not due until 30 days after the circuit court judgment of October 6, 2006, had been served upon the employer. The ALJ found that the judgment had been served upon the employer on October 16, 2006, and that payment was therefore not due until 30 days later on November 15, 2006. The ALJ went on to find that since the applicant received payment 12 days prior to November 15, 2006, there was no actionable delay and no bad faith.
Judge Schwartz's Decision and Order issued on May 23, 2006, "Affirms the LIRC decision in its entirety."(2) It thereby "dispose[d] of the entire matter in litigation"(3) as it pertained to all the parties in that proceeding. Judge Schwartz's Decision and Order did not just contain legal reasoning. It explicitly dismissed Ziegler's request for relief from the commission's decision, and in a legal conclusion, affirmed the assessment of the bad faith penalty made in that decision. No further action by the court was required because it resolved the controversy in its entirety. Therefore, it was a final decision that was appealable as of May 23, 2006.(4) A date stamp on the first page of the Decision and Order verifies that it was entered with the Dane County Clerk of Circuit Court on May 23, 2006, which is also a requirement for a final, appealable order under Wis. Stat. § 808.03(1)(a). Entry with the clerk constitutes further evidence of the circuit court's intention to make its Decision and Order final on May 23, 2006.
Ziegler attempts to rely on the fact that in frustration over non-payment, the applicant filed the Motion for Judgment and Motion for Order for Supplemental Examination. Ziegler asserts that issuance of the judgment on October 6, 2006, somehow opened a new window of opportunity for timely payment. However, on May 23, 2006, a final judgment in the case had already been issued pursuant to Wis. Stat. � 102.23(6). The circuit court's Decision and Order constituted a final confirmation of the commission's decision, pursuant to the court's authority under Wis. Stat. � 102.23(1)(e). The Decision and Order also constituted a "judgment" as defined in Wis. Stat. � 806.01(1). Accordingly, the appeal period started running on May 23, 2006. The judgment issued on October 6, 2006, was merely a duplicative document with no new legal effect in the case. Its issuance did not transform the circuit court's Decision and Order of May 23, 2006, into a non-final decision, and restart an appeal period that by statute (5) had begun to run on May 23, 2006. The intent of the duplicative judgment issued on October 6, 2006, which was four-and-one-half months after the circuit court's decision, and three months after the appeal period had expired, was to motivate payment of the long overdue $14,240.20. As stated in Fredrick v. City of Janesville, 92 Wis. 2d 685, 688, 285 N.W.2d 655 (1979):
"We reject the Court of Appeals' reasoning that subsequent events can determine the finality of the order or judgment. The test of finality is not what later happened in the case but rather, whether the trial court contemplated the document to be a final judgment or order at the time it was entered. This must be established by looking at the document itself, not to subsequent events. In determining whether any particular form of judicial action is appealable, the nature of the adjudication is what is controlling."
In addition, the court stated in Harder v. Pfitzinger, 2004 WI 102, � 15, 274 Wis. 2d 324, 682 N.W.2d 398:
"We hold that when a circuit court enters an order or a judgment that decides all substantive issues as to one or more parties, as a matter of law, the circuit court intended that to be the final document for purposes of appeal, notwithstanding subsequent actions by the circuit court or the label the document bears."
The ALJ's unexplained finding that Ziegler had "30 days" to satisfy the judgment issued on October 6, 2006, has no basis in the law. A party in whose favor a judgment is rendered outside the procedures of Wis. Stat. � � 102.23 and 102.25, has 30 days after entry of the judgment with the clerk to "perfect the judgment" (add costs to it).(6) However, that is only a deadline for protecting costs in cases outside the procedures of Wis. Stat. § § 102.23 and 102.25. There is no 30-day period established anywhere in the law for satisfaction of a circuit court judgment issued pursuant to Wis. Stat. § 102.23. Once such a judgment has been entered with the clerk of court, the only contingency attached to it is the right to appeal to the court of appeals, pursuant to Wis. Stat. § 102.25(1), and in accordance with the time limits set forth in Wis. Stat. § 808.04(1). After that right to appeal expires the judgment is enforceable at any time.
The Decision and Order entered with the clerk on May 23, 2006, constituted "a judgment entered upon the review of" the commission's order (see Wis. Stat. § 102.25(1)). The appeal period expired 45 days later on July 7, 2006. Ziegler did not make payment until November 3, 2006, and then only after the court issued the Order for Supplemental Examination, which would have required Ziegler to appear before the court with all its books, records, and documents pertaining to the financial aspects of its business. Ziegler lacked any reasonable basis for delaying payment after the appeal period for Judge Schwartz's Decision and Order expired on July 7, 2006, and it had knowledge of that lack of a reasonable basis. Additionally, there is no evidence that Ziegler actually relied on any legal argument during the extended time it delayed payment.
Accordingly, the commission finds a bad faith penalty is due in this matter. Considering the length of the delay, and the fact that the $14,240.20 at issue represented a 200 percent bad faith penalty, the commission will assess a 100 percent penalty for this additional act of bad faith, resulting in the penalty amount of $14,240.20. A 20 percent attorney's fee will be subtracted.
NOW, THEREFORE, this
Within 30 days from this date, Ziegler Builders shall pay to the applicant for violation of Wis. Stat. § 102.18(1)(bp), the sum of Eleven thousand three hundred ninety-two dollars and sixteen cents ($11,392.16); and to Attorney Kathleen M. Lounsbury, fees in the amount of Two thousand eight hundred forty-eight dollars and four cents ($2,848.04).
Dated and mailed March 3, 2008
sandmch.wsd:185:8 ND § 7.20
This decision is being reissued .
The date was inadvertently missed .
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
NOTE: The commission's reversal of the administrative law judge's decision was based on analysis of the undisputed facts of record. No testimony was taken at the hearing held on July 25, 2007, and therefore credibility of witnesses was not at issue.
cc:
Attorney Kathleen M. Lounsbury
Attorney Christopher Duren
Appealed to Circuit Court. Affirmed September 11, 2008. Appealed to the Court of Appeals.
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