STATE OF WISCONSIN COURT OF APPEALS DISTRICT 4 Case No. 08-AP-1082

Transcription

1 STATE OF WISCONSIN COURT OF APPEALS DISTRICT 4 Case No. 08-AP-1082 CARA ROYAL Plaintiff-Respondent, v. GREGORY ROYAL Defendant-Appellant. ON APPEAL FROM: A JUDGMENT GRANTING GUARDIAN AD LITEM AND PETITIONER ATTORNEY FEES AND DENYING MOTIONS FOR SUMMARY JUDGMENT, TO STRIKE AND TO ASSESS COSTS. ENTERED IN THE LA CROSSE COUNTY CIRCUIT COURT, JUDGE DALE PASELL, PRESIDING APPELLANT'S REPLY BRIEF Gregory Charles Royal Defendant-Appellant Pro se th Street NW PMB 1153 Washington, DC

2 TABLE OF CONTENTS INTRODUCTION...3 ARGUMENT I- CIVIL PROCEDURE VIOLATED IN NON-FRIVOLOUS ACTION...3 II- ATTORNEY FEES AND RATES WERE IMPROPER UNDER STATUTE...4 III- APPELLEES WERE SILENT OR CONCEDED...5. CONCLUSION...5 STATUTES CITED Wis Wis (1)(a)...4 Wis (5)(b)1.b...4 Wis. Stat (4m)(b)...4, 5 CASE CITED Industrial Roofing Services, Inc. vs. Marquardt, (Supreme Court Review 2005AP189)...3 2

3 INTRODUCTION Appellant respectfully submits this reply brief utilizing rap/rhyme in the argument topics to better emphasize strong concept points. ARGUMENT I- CIVIL PROCEDURE VIOLATED IN NON-FRIVOLOUS ACTION Regarding frivolous filings, one thing is clear, Notice to show cause and proper service before you appear. Appellee submitted his motion for attorney fees in open court. However, Appellant appeared by telephone and was never served. (Trans. page 6 line 22) Also that the court failed to issue a Notice to Show Cause pursuant to Wis. Stat before issuing a "sanction", clearly violated civil procedure and Appellant's due process. And if Industrial vs. Marquardt is any measure, Its the frivolous allegations, not the venue of your endeavor. In Industrial Roofing Services, Inc. vs. Marquardt, (Supreme Court Review 2005AP189), the Wisconsin Supreme Court court set forth its standard for overcoming a claim of frivolousness: that a litigant "would only have to make a showing that its allegations had enough basis in law and fact to satisfy Wis. Stat ". [Emphasis Added] But the allegations, how could they be frivo-lous? Erlandson has a seizure the only day she deals with us. Appellant made several allegations in his federal case (for example, that child custody evaluator Susan Erlandson had a diabetic seizure during the lone evaluation and then went on to draw negative inferences and make deleterious conclusions based upon that event). The court held that such allegations were frivolous because, in addition to the argument regarding venue, Appellee would be afforded immunity. Immunity goes only 3

4 to liability. By law, the CAT report's contents and methods could be challenged de novo. So, no logical scenario existed by which such serious allegations would be ungrounded in fact. The court's position is therefore an error of law and fact. A domestic relations exception, I was supposed to know. Appellee would know too, so why did he spend so much doe? Appellee rests his frivolous argument on the assertion that because the domestic relations exception in the federal court is so widely known, the filing was intrinsically frivolous. (Response Brief page 2) Appellee thereby infers that he also knew of the exception. Therefore, his alleged $3,700 in legal fees would be excessive in that he should have filed a motion to dismiss the federal action based upon that dispositive exception. Under his logic, any case filed in the improper jurisdiction is frivolous. II- ATTORNEY FEES AND RATES WERE IMPROPER UNDER STATUTE Appellee dissed for his 3 grand justification. But he forgets that puts the brakes on his compensation. Even if this court finds that Wis. Stat (1)(a) does not apply to Appellee as a general civil matter, Wis. Stat (4m)(b), as a provision of Wis. Stat which Appellee cites, states that that GAL compensation shall be $40 or less per hour. Although Appellant has no idea what the billing hours of Appellee's fees were (because he was not served documents), that would equate to about 92 hours, obviously an excessive amount. Appellee under statute was paid his compensation. He seeks reimbursement and costs for outside re-numeration (6) relates to compensation only. There is nothing in the statute which allows specific reimbursement of fees and costs, i.e., expenses, to a GAL. Only reimbursement to 4

5 the county for compensation paid to the GAL is allowed. It is undisputed that Appellee was paid his GAL fee of $2,400 months prior to this appeal. Even under Appellee's logic, the court made an error of law granting fees and costs to the GAL under this statute. And even if the court was correct, such compensation is governed by the rates set forth in Wis. Stat (4m)(b) of $40 per hour. That Appellee, himself an attorney, who presumably knew that the federal filing was barred by an exception, spent $3,700 is more telling of his incompetence than a legitimate entitlement. III- APPELLANT ISSUES SILENT OR CONCEEDED 1. Appellee cites no case in any jurisdiction demonstrating a precedent regarding this court's actions as set forth in this case. Appellant is forced to prove a negative. 2. Appellee is silent on the issue that he failed to properly serve Appellant. 3. Appellee cites the "policy" of the judge as his only legal authority for reimbursement and concedes there exists no specific reference in the statutes he cites.. (Response Brief page 2) 4. Petitioner's attorney Margarita Van Nuland is silent the on issue regarding her attorney fees and Appellant's motion for summary judgment. CONCLUSION La Crosse Circuit Court Local Rule 908 only provides justice and accountability to people with $5,000 who have been victims of a Custody Assessment Team. This is the overall problem of how the events in this case transpired. Under 908, the circuit court has wide discretion to, in effect, deny the opportunity to challenge the CAT, as in this case earlier on, when it knows that most people cannot afford such fees- which are on their face peculiar as they actually compensate CAT to defend itself and provides no refund back to the litigant if CAT is at fault. Although Appellant was not prohibited from pursuing civil rights allegations in the circuit court, the financial inaccessibility of the 5

6 circuit court and the accessibility of the federal court offered an opportunity to challenge injustices which Appellant, in good faith, took advantage of. Appellant prays that this court examines the overall situation in this case and come to the conclusion that not only were Appellant's actions not frivolous or harassing, but that the circuit indeed abused its discretion and authority. Respectfully submitted, Gregory Royal Defendant-Appellant Pro se th Street NW PMB 1153 Washington, DC (202) CERTIFICATION OF MAILING I certify that this brief was deposited in the United States mail for delivery to the Clerk of the Court of Appeals by Priority mail on, September, I further certify that the brief was correctly addressed and postage was pre paid. Date: Gregory Charles Royal 6