Richard A. Lauer v. Dennis Lauer ( 2020 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 18, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2018AP1672 Cir. Ct. No. 2015PR33
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
IN RE THE ESTATE OF ELIZABETH H. LAUER:
RICHARD A. LAUER,
APPELLANT,
V.
DENNIS LAUER, PERSONAL REPRESENTATIVE FOR THE ESTATE OF
ELIZABETH H. LAUER,
RESPONDENT.
APPEAL from an order of the circuit court for Outagamie County:
GREGORY B. GILL, JR., Judge. Affirmed.
Before Stark, P.J., Hruz and Seidl, JJ.
No. 2018AP1672
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. Richard Lauer, pro se, challenges those parts of an
order that denied a petition to remove his brother, Dennis Lauer, as personal
representative of their mother’s estate, and denied a motion for recusal of the
judge.1 As best as we can decipher, Richard2 argues that: (1) the circuit court
erred by denying his petition without a hearing, contrary to WIS. STAT. § 857.15
(2017-18)3; (2) the failure to “follow the mandates” of § 857.15 “resulted in a
summary judgment”; and (3) denial of the petition is proof of the judge’s
partiality, thus requiring recusal. We reject Richard’s arguments and affirm the
order.
BACKGROUND
¶2 In July 2015, Richard’s mother, Elizabeth Lauer, died intestate with
ten adult children. Dennis petitioned for formal administration of the estate and
consented to serve as personal representative. Eight of the siblings, including
1
Although Richard purports to challenge the denial of his petition to remove Doug Hahn
as attorney for the estate, Richard fails to develop any argument specific to Hahn. We will not
develop it for him. See Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App
62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82. The underlying order also denied Richard’s petition
for discovery proceedings and motion for relief from a July 26, 2017 order. Because he raises no
cognizable argument regarding these matters on appeal, any challenge to these parts of the order
is deemed abandoned. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588
N.W.2d 285 (Ct. App. 1998) (holding that an issue raised in the circuit court, but not raised on
appeal, is deemed abandoned).
2
Because this case involves parties sharing the same last name, we will refer to the
parties by their first names.
3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
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No. 2018AP1672
Dennis, approved of his appointment as personal representative. Both Richard and
another sibling, Mary Beth Lipp, filed their own petitions to serve as personal
representative. After a hearing, the circuit court appointed Dennis as personal
representative for the estate. Richard appealed, arguing in relevant part that the
court should not have rejected Richard’s request for appointment as personal
representative without first finding him unsuitable, and that the circuit court judge
should have recused himself because he prejudged the matter. This court rejected
Richard’s arguments and affirmed the order. See Lauer v. Lipp, No. 2016AP465,
unpublished slip op. (WI App July 18, 2017).
¶3 Richard then filed a motion to remove both Dennis as the personal
representative for the estate and Douglas Hahn as the attorney for the estate.
Richard also sought recusal of the circuit court judge. The court denied the
motions in an order entered July 26, 2017. That same day, the court entered the
final judgment for formal administration of the estate. The court ordered that after
all fees and expenses were paid, the balance of the estate was to be divided equally
amongst the ten siblings after adjustment to reflect any distribution of tangible
personal property that had been received. Richard appealed the July 26 order and
judgment, as well as a subsequent order denying his motion for reconsideration.
In an opinion and order dated September 6, 2018, that appeal, No. 2017AP1790,
was dismissed pursuant to WIS. STAT. RULE 809.83(2), based on Richard’s failure
to either file a brief or establish good cause for an extension.
¶4 During the pendency of appeal No. 2017AP1790, Richard filed the
underlying petition for a hearing to remove Dennis and Hahn as personal
representative and attorney, respectively, of the estate. Richard also moved again
for the judge’s recusal. The circuit court denied the petition and motion without a
hearing, and this appeal follows.
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No. 2018AP1672
DISCUSSION
¶5 As an initial matter, Dennis suggests that Richard’s appeal is
procedurally barred. Under the doctrine of claim preclusion, “a final judgment is
conclusive in all subsequent actions between the same parties as to all matters
which were litigated or which might have been litigated in the former
proceedings.” Lindas v. Cady, 183 Wis. 2d 547, 558, 515 N.W.2d 458 (1994)
(emphasis added). The elements of claim preclusion appear to apply, as the issues
in this appeal could have been raised in Richard’s earlier appeal, had he filed a
brief. Furthermore, we view Richard’s prior appeal as essentially moving to
reopen the prior judgment, and to the extent he is again making such a claim in the
present appeal, it is not properly before us. Although Richard’s present appeal
may be procedurally barred, we nevertheless address the merits of his arguments.
¶6 Richard contends that he was entitled to a hearing under WIS. STAT.
§ 857.15, which governs a personal representative’s resignation or removal. The
statute provides:
The judge may accept the written resignation of any
personal representative. When a personal representative is
adjudicated incompetent, disqualified, unsuitable, incapable
of discharging the personal representative’s duties, or is a
nonresident of this state who has not appointed a resident
agent to accept service of process in all actions or
proceedings with respect to the estate and caused such
appointment to be filed with the court, the court shall
remove the personal representative. When any personal
representative has failed to perform any duty imposed by
law or by any lawful order of the court or has ceased to be a
resident of the state, the court may remove the personal
representative. When grounds for removal appear to exist,
the court on its own motion or on the petition of any person
interested shall order the personal representative to appear
and show cause why the personal representative should not
be removed.
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No. 2018AP1672
WIS. STAT. § 857.15 (emphasis added). Whether to remove a personal
representative is a matter within the circuit court’s discretion. Bell v. Neugart,
2002 WI App 180, ¶28, 256 Wis. 2d 969, 650 N.W.2d 52. When reviewing a
discretionary decision, we search the record for reasons to sustain the circuit
court’s exercise of discretion. Lofthus v. Lofthus, 2004 WI App 65, ¶21, 270
Wis. 2d 515, 678 N.W.2d 393. We affirm if there is a reasonable basis for the
court’s decision. Littmann v. Littmann, 57 Wis. 2d 238, 250, 203 N.W.2d 901(1973).
¶7 Richard asserts, in conclusory fashion, that because his petition cited
“good cause for removal,” the statute required the circuit court to order Dennis to
appear and show cause why he should not be removed as personal representative
of the estate. We are not persuaded. Under the statute’s plain language, a court is
not required to order a show-cause hearing unless the petition establishes that
“grounds for removal appear to exist.” By denying the motion, the court, sub
silentio, determined no grounds for removal existed. In any event, the record
supports the court’s discretionary decision. As this court acknowledged in
Richard’s earlier appeal: “[T]he record supports the court’s finding that Dennis
was best suited to fill that role [of personal representative]. Eight of the ten heirs
requested Dennis’ appointment. The court reasonably found the other heirs would
more likely cooperate with Dennis, including giving him access to places the
alleged will might be found.” Lauer, No. 2016AP465, ¶6. The circuit court
properly denied the petition without ordering a show-cause hearing.
¶8 Richard also argues the circuit court judge should have recused
himself. WISCONSIN STAT. § 757.19 governs judicial disqualification. None of
the objective factors that mandate recusal apply in this case. See WIS. STAT.
§ 757.19(2)(a)-(f). The only possible relevant consideration is whether
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No. 2018AP1672
§ 757.19(2)(g) applies. That paragraph mandates a judge’s disqualification “only
when that judge makes a determination that, in fact or in appearance, he or she
cannot act in an impartial manner.” State v. American TV & Appliance of
Madison, Inc., 151 Wis. 2d 175, 183, 443 N.W.2d 662 (1989). Whether the
subjective situation exists and requires disqualification is based on the judge’s
own determination of whether he or she will remain impartial. State v. Harrell,
199 Wis. 2d 654, 658, 546 N.W.2d 115 (1996). Appellate review of that
determination is limited to establishing whether the judge made a determination
requiring disqualification. Id. at 663-64.
¶9 The statutory paragraph at issue does not require disqualification in
situations where: (1) someone other than the judge objectively believes there is an
appearance that the judge is unable to act in an impartial manner; or (2) the
judge’s impartiality can reasonably be questioned by someone other than the
judge. American TV, 151 Wis. 2d at 183. In Richard’s earlier appeal, we noted
that because the circuit court judge repeatedly found he could be impartial, there
was no basis for this court to decide that he should have recused himself. In the
present appeal, Richard offers no new facts other than the court’s decision on
appeal to support his recusal argument. Specifically, he asserts that the circuit
court’s denial of the petition without a show-cause hearing is proof of the judge’s
partiality. However, “judicial rulings alone almost never constitute a valid basis
for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994).
¶10 Finally, Richard suggests the circuit court erroneously granted
summary judgment in favor of Dennis. Richard offers no authority for his claim,
and the record provides no basis upon which Richard can establish that the denials
of his motions were, in effect, a summary judgment.
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No. 2018AP1672
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
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