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COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
September 12, 1996
A party may file with the Supreme Court                          This opinion is subject to further editing.
a petition to review an adverse decision                         If  published,  the  official  version  will
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RULE 809.62, STATS.                                              Official Reports.
No.   95-1554
STATE OF WISCONSIN                                               IN COURT OF APPEALS
DISTRICT IV
ROBERT BOWEN and JUDITH BOWEN,
Plaintiffs-Appellants,
v.
DANE COUNTY FARMERS' MARKET, INC.,
a corporation, JOHN OOSTERWYK, WILLIAM
WARNER, MARY CARPENTER, LYNN BEDNAREK,
ALAN J. HOWERY, ALICE PAUSER, GLENN
CLARK, TED BALWEG, ANNE TOPHAM,
FRANK ROMANSKI, PAUL GRIEPENTROG,
DAVID NEDVECK, MARK OLSON,
Defendants-Respondents.
APPEAL from a judgment of the circuit court for Dane County:
GERALD C. NICHOL, Judge.  Affirmed.
Before Eich, C.J., Dykman, P.J., and Robert D. Sundby, Reserve
Judge.




No.                                                                                       95-1554
PER  CURIAM.    Robert  Bowen  and  his  sister,  Judith  Bowen,
appeal from a judgment awarding actual costs and reasonable attorneys' fees to
the respondents, the Dane County Farmers' Market, Inc., its director Mary
Carpenter, and various members of its board of directors.   The court concluded
that the Bowens commenced and prosecuted a frivolous action against the
respondents.   We also conclude that the action was frivolous, and therefore
affirm.
For a number of years Robert Bowen sold bakery goods at the
Dane County Farmers' Market.   In June 1991 Carpenter suspended him for one
year  because  he  sold  a  product  banned  by  the  City  of  Madison  health
regulations and because he did not prepare at least 20% of the goods he offered
for  sale  at  the  market.    Robert  appealed  to  the  board  of  directors,  which
affirmed Carpenter's decision.   At the appeal hearing, the board also found a
third violation of Farmers' Market rules because Robert was not personally
present at his stand during market hours.
Robert retained counsel, who sued the respondents for breach of
contract, tortious interference with contract, intentional infliction of emotional
distress and deprivation of due process under 42 U.S.C. § 1983.   The complaint
also stated a cause of action on behalf of Judith for violation of the Americans
with Disabilities Act, 42 U.S.C. § 12182, based on discrimination because of her
association with Robert, who is disabled.   She alleged that during telephone
conversations in January 1992, Carpenter intimidated her into dropping plans to
apply for her own stand to sell bakery goods.
The respondents moved to dismiss.  Because the parties submitted
evidence in support of and opposing the motion, the court treated the matter as
a summary judgment and dismissed all claims.   Later, the court imposed costs
and  reasonable  attorneys'  fees  on  the  Bowens  and  their  counsel  under
§§ 814.025 and 802.05(1)(a), STATS., finding that with adequate investigation by
counsel, they should have known that they had no basis to recover against the
respondents.1
1  Counsel for the Bowens has asked that the judgment be reversed as to him as well.
However, he did not appeal the judgment, except on the Bowens' behalf.   The subject of
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                                                                                                           No.                                               95-1554
Section                                                                                      814.025 (3)   (b),  STATS.,  allows  recovery  of  costs  and
reasonable attorneys' fees against a party who knew or should have known that
the  claim  lacked  any  reasonable  basis  in  law  or  equity  and  could  not  be
supported by a good faith argument for an extension, modification or reversal
of existing law.   Section 802.05(1)(a), STATS., imposes a requirement on counsel
for a party to reasonably inquire whether a pleading is well grounded in fact
and is warranted by existing law or good faith argument to extend, modify or
reverse existing law.   If the court determines that the attorney or party failed to
make a reasonable inquiry, the court may impose sanctions including costs and
reasonable attorneys' fees.
Determining what was known or should have been known to a
party is a question of fact.   Stern v. Thompson and Coates, Ltd., 185 Wis.2d 220,
241, 517 N.W.2d 658, 666 (1994).   The ultimate conclusion about whether what
was  known  or  should  have  been  known  supports  a  determination  of
frivolousness  under  § 814.025(3)(b),  STATS.,  is  a  question  of  law  which  we
review independently.  Id.
With  or  without  reasonable  investigation  by  counsel,  Robert
should have known that he had no viable claims against the respondents.
Robert has never offered evidence that he was innocent of the rule violations
that led to his suspension despite opportunities to do so on administrative
appeal,  on  summary  judgment  and  on  the  respondents'  § 814.025,  STATS.,
motion.   We must therefore regard his violation of those rules as an undisputed
fact.   Also undisputed is the plain language of the Farmers' Market written
rules, which impose a one-year suspension for two violations such as those
Robert committed.   Because Robert knew or should have known that he was
properly  found  in  violation  of  the  rules  and  properly  punished  for  his
violations, he should have known that all claims, whether in contract, tort or
under 42 U.S.C. § 1983, lacked the necessary factual basis.2
(..continued)
this appeal is limited to the Bowens' liability for costs and attorneys' fees.
2  Robert claims a dispute of fact remains as to whether Carpenter complied with notice
requirements in the rules before imposing his suspension.   There is no evidence of record
to support that assertion.   The Bowens apparently chose not to include the evidentiary
submissions on summary judgment in the appellate record.
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No.                                                                                   95-1554
Robert  also  presented  claims  based  on  the  third  citation  he
received at the board of directors appeal hearing.   However, it is undisputed
that the board imposed no punishment for that violation.   Robert should have
known that an act that has no practical effect cannot form the basis for recovery.
Judith also had reason to know that her claim had no merit.   She
based it on 42 U.S.C. § 12182(b)(1)(E), which prohibits discrimination against an
individual because that individual associates with a disabled person.   Judith's
allegations and proofs do not go beyond the fact, however, that she had three
phone conversations with Carpenter during which Carpenter was rude and
possibly  insulting.    Judith  did  not  show  any  nexus  between  Carpenter's
comments and a discriminatory event.   Additionally, Judith offered no proof to
show that the phone conversations occurred after the effective date of the
applicable provisions of the Americans with Disabilities Act, which was January
26, 1992.  See Pub. L. No. 101-336, § 246, 104 STAT. 353 (1990).
The  Bowens  contend,  additionally,  that  the  court  erred  by
deciding the frivolousness issue without an evidentiary hearing.   A hearing is
unnecessary when the material facts are undisputed.  Kelly v. Clark, 192 Wis.2d
633, 653, 531 N.W.2d 455, 462 (Ct. App. 1995).     For Robert, the undisputed
material facts are that he violated rules of the market and was punished as
provided in those rules.  For Judith, the undisputed material facts are her failure
to prove an act of discrimination and when it occurred.   In each case the trial
court properly made its determination without a hearing.
By the Court.—Judgment affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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