Ter Maat v. Barnett

SULLIVAN, J.

This appeal involves the application of sec. 815.24, Stats., governing the right of an officer to require security for the execution of a judgment. Ronald J. Forslin appeals from an order dismissing his petition for an order directing the Winnebago County Sheriffs Department to waive its requirement of an indemnity bond for the execution of a judgment. The plain meaning of sec. 815.24 requires "reasonable doubt" to be established before security may be required. Because we conclude that reasonable doubt was not established in this case, we reverse this case and remand it to the circuit court.

Forslin's uncontroverted petition alleged that he obtained a judgment against Harris M. Barnett in the circuit court for Winnebago County, Illinois, on April 25, 1983. He filed the Illinois judgment in the office of the clerk of circuit court for Winnebago County, Wisconsin, on July 15,1983. See sec. 806.24(2), Stats. At that time, Barnett owned a 25% interest in a parcel of real estate in Winnebago County, Wisconsin. The clerk of circuit court subsequently gave notice of the filing to Barnett. See sec. 806.24(3)(b), Stats.

In December of 1983 Barnett and his wife quit-claimed their interest in the property to William and Muriel Pollack. The Pollacks filed a quiet title action to clear Forslin's judgment lien from the property. On January 7, 1985, the circuit court granted Forslin's motion for summary judgment and dismissed the Pollacks' action. In addition, the circuit court granted Forslin's motion for leave to execute the judgment after five years. See sec. 815.04(1), Stats.

The judgment, however, has not been executed. The Sheriffs Department has refused to execute without an indemnity bond, and because of his low net worth, For-slin has been unable to obtain one. He petitioned the trial court for an order directing the Department to waive the indemnity bond. At the hearing on Forslin's petition, the coiporation counsel for Winnebago County argued that the Department had a right to demand an indemnity bond under sec. 815.24, Stats. The statute provides:

If there is any reasonable doubt as to the ownership of the property or as to its liability to be taken on the execution the officer may require sufficient security to indemnify him for levying upon such property.

The trial court determined that the possibility of a lawsuit created a reasonable doubt under sec. 815.24 and thus gave the Sheriffs Department the right to require security. Forslin's petition was dismissed.

Our consideration of this appeal requires us to apply sec. 815.24 to the undisputed facts set forth in Forslin's petition. This presents an issue of law which we review de novo. State v. Wilke, 152 Wis. 2d 243, 247, 448 N.W.2d 13, 14 (Ct. App. 1989). The task of this court is to give force and effect to the intent of the legislature. Id. We do this by a careful reading of the statute, giving the language its ordinary and accepted meaning. Id. at 247-48, 448 N.W.2d at 14.

Forslin argues that the Sheriffs Department abused its discretion by refusing to execute the judgment without security. We agree. In Fillbach v. Production Credit Ass'n, 141 Wis. 2d 767, 772-73, 416 N.W.2d 617, 619 (Ct. App. 1987), we noted the general rule that absent statutory authority a public officer may not require a bond as a condition to the exercise of his or her discretion:

The rule in that regard is aimed at preventing that species of oppression which compels individual members of a community to obtain performance of official duty by purchase, as well as at preventing surrender of that official discretion which the law contemplates shall be bestowed upon every situation in which an officer is required to act.

Shelby v. Miller, 114 Wis. 660, 664, 91 N.W. 86, 87 (1902), quoted in Fillbach, 141 Wis. 2d at 773, 416 N.W.2d at 619.

Section 815.24 creates an exception to the general rule in a situation where a public officer must seize the property of one person for the benefit of another. See id. If the officer has a reasonable doubt as to the ownership of the property or its liability to be taken, he or she may require security on execution. See id. For example, in Grace v. Mitchell, 31 Wis. 533 (1872), notice of a jurisdictional defect in a judgment gave the constable reasonable doubt of his authority to execute and rendered him liable in damages for the execution. Id. at 545, discussed in Fillbach, 141 Wis. 2d at 773, 416 N.W.2d at 619. The supreme court stated that in such a situation the officer "should have the right to call upon the plaintiff or party interested for indemnity, and that the plaintiff or such party should be required to give it where he insists upon the writ being executed." Grace, 31 Wis. at 540. The court noted, however, that the officer's right to demand indemnity is limited and may only be exercised "in a proper case." Id. at 541.

The term "reasonable doubt" means a doubt for which a reason can be given. See State v. Cooper, 117 Wis. 2d 30, 34-35, 344 N.W.2d 194, 197 (Ct. App. 1983). Reasonableness is an objective standard rather than an officer's arcane or subjective belief:

No very slight, unsatisfactory or frivolous grounds will be accepted, nor can the sheriff start doubts or raise questions for the mere purpose of delaying or baffling the party entitled to his services, or by connivance with the defendant.

Grace, 31 Wis. at 544-45. Thus, we conclude that the use of the term "reasonable" in sec. 815.24 requires the officer to state a reason for requiring security.

Expression of the officer's reason to the interested parties will provide them with the opportunity to correct any factual errors or deficiencies in the officer's reasoning. While it may be difficult to draw a precise line to determine whether a doubt is reasonable, the statement of a reason protects the officer from unnecessary risks and protects judgment creditors from connivance between the officer and the judgment debtor. See id. at 545.

In this case, the Sheriff's Department never expressed or communicated any reason for its doubt. It did not file a response to Forslin's petition or any other document in the circuit court. At the hearing, the Department's counsel expressed vague concern of a possible lawsuit, but such speculation does not constitute a reasonable doubt. Thus, we reject the trial court's conclusion that the possibility of an action against the Sheriffs Department gives rise to a reasonable doubt. This logic renders the word "reasonable" found in sec. 815.24 meaningless and superfluous.¹ This court will not attempt to enumerate or categorize the many possible reasons for doubt that would justify the exercise of discretion by an officer to demand security. We determine only that the unspecified possibility of litigation does not constitute a reasonable doubt under sec. 815.24, Stats., to justify an officer's demand for security.

On appeal, the Sheriff's Department argues that we must presume there was a reasonable doubt as to the propriety of the execution because it demanded security. This argument is made for the first time on appeal. See Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140, 145-46 (1980) (appellate court generally will not review issue raised for the first time on appeal). In addition, despite the Department's assertion that oral argument is not necessary in this case "as it is expected that the briefs of the parties will fully meet and discuss the issues on appeal," we do not find its six-page brief particularly instructive. Its one and a half page argument is devoid of citations to authority. See Rule 809.19(1)(e); Lechner v. Scharrer, 145 Wis. 2d 667, 676, 429 N.W.2d 491, 495 (Ct. App. 1988). Accordingly, we decline to consider the issue. See id.²

In light of the fact that the trial court previously determined that Forslin's interest in the subject property was superior to that of the Pollacks, and because the trial court has granted Forslin's motion for leave to execute the judgment after five years, we consider Forslin's right to execute on the subject property established by the law of the case.

Therefore, we reverse the order of dismissal and remand this case to the trial court. On remand, the trial court shall direct the Sheriffs Department to execute Forslin's judgment without security.

By the Court. — Order reversed and cause remanded for proceedings consistent with this opinion.

1 A court must avoid an interpretation of a statute which renders any part of it superfluous. Milwaukee Metro. Sewerage Dist. v. Wisconsin DNR, 122 Wis. 2d 330, 336, 362 N.W.2d 158, 161 (Ct. App. 1984), aff'd, 126 Wis. 2d 63, 375 N.W.2d 649 (1985).

2 Forslin also argues that the requirement of a bond denies his due process and equal protection rights, see U.S. Const. amend. XIV, sec. 1; Wis. Const. art. I, sec. 1, as well as his right to a remedy for a wrong, see Wis. Const. art. I, sec. 9. Our disposition of his other argument, however, makes it unnecessary for us to address this issue. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938).