Scoll & Remeika, LLC v. Victoria Fueger ( 2022 )

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.
April 7, 2022
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. 2021AP772 Cir. Ct. No. 2018CV2142
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
SCOLL & REMEIKA, LLC,
PLAINTIFF-APPELLANT,
V.
VICTORIA FUEGER AND AMERICAN FAMILY MUTUAL INSURANCE CO.,
DEFENDANTS-RESPONDENTS.
APPEAL from an order of the circuit court for Dane County:
JOSANN M. REYNOLDS, Judge. Reversed and cause remanded with directions.
Before Blanchard, P.J., Fitzpatrick, and Nashold, JJ.
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. This action, filed in the Dane County Circuit
Court, concerns allegedly defamatory statements made by Victoria Fueger
No. 2021AP772
regarding a business, Scoll & Remeika, LLC (“Scoll”). Fueger sent those
communications to Scoll’s clients, potential sources of referrals for Scoll, various
law enforcement and regulatory agencies, the Better Business Bureau, and a
television reporter. Fueger moved for summary judgment requesting dismissal of
Scoll’s claims. The circuit court granted Fueger’s motion based on the
conclusions that each of Fueger’s communications was either: not capable of
having a defamatory meaning; or privileged and Fueger’s statements did not lose
the protection of any privilege by abusing it. Scoll appeals.
¶2 We agree with Scoll that the circuit court erred because there are
genuine issues of material fact regarding: whether Fueger’s communications are
capable of being understood as having a defamatory meaning; whether there are
privileges applicable to many of the communications at issue; and whether Fueger
has abused, and therefore forfeited, the privileges that she asserts. Therefore, we
reverse the order of the circuit court and remand for further proceedings consistent
with this opinion.
BACKGROUND
¶3 There is no genuine issue regarding the following material facts.
¶4 Scoll refers to itself as a “probate research firm” that serves clients
in Wisconsin. Its owner and principal during relevant periods was Diane
Remeika.
¶5 Pertinent to this appeal, as one aspect of its business, Scoll
researches probate matters it has learned about through public records or through
attorney referrals. During that process, Scoll tries to locate heirs of estates. After
Scoll locates and contacts a potential heir, the heir sometimes enters into a contract
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offered by Scoll under which Scoll prepares and presents the heir’s proof of claim
to the estate. This service may include retaining an attorney at Scoll’s expense to
represent the heir in the probate proceedings and facilitate the distribution of the
estate’s assets to the heir.
¶6 Typically, Scoll sends each potential heir a letter disclosing the name
of the estate and informing the heir that he or she may have a claim of inheritance.
With that letter, Scoll encloses a proposed contract for the heir to sign, along with
a cover letter and a brochure outlining the services offered by Scoll. Under the
terms of the proposed contract, Scoll is compensated for its services on a
contingency-fee basis, and typically charges about 25% of the amount recovered
from the estate by the heir.
¶7 In 2017, Scoll began researching the Estate of Thomas J. Barry, Jr.,
then pending in the Dane County Circuit Court (the “Barry Estate”).1 Scoll
identified all nineteen heirs of the Barry Estate (hereinafter, the “heirs”), including
Fueger. Scoll contacted sixteen of the heirs, including Fueger. Scoll provided
information to each heir about his or her potential inheritance in correspondence
that included the name of the estate. Scoll offered each a contract for services
similar to that already described. Fifteen of the sixteen heirs who were contacted,
including Fueger, signed the contracts offered by Scoll.
1
The parties refer to Barry Estate pleadings and orders that are not in the record in this
appeal. The parties apparently assume that this court has the same electronic access to circuit
court documents, including documents filed in the Barry Estate, that circuit courts have. We do
not. However, the parties’ failure to have placed in the record in this appeal documents from the
Barry Estate that are mentioned in briefing in this court is not material because the parties do not
dispute the substance of the pertinent Barry Estate pleadings and orders.
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¶8 Fueger also signed an Attorney Authorization and Limited Power of
Attorney, provided by Scoll, authorizing an attorney recommended by Scoll to
Fueger to represent her in the Barry Estate proceeding. Proof of heirship of all of
the heirs was filed with the probate court in November 2017 by that attorney.
¶9 Fueger was a first cousin once-removed of Mr. Barry. Fueger was
entitled to 00.535725% of the Barry Estate.
¶10 After signing the contract with Scoll, Fueger learned that the Barry
Estate was worth about $3.5 Million. According to the amounts and percentages
already mentioned, her gross share of that estate was approximately $18,750.00,
and the 25% fee owed to Scoll under the contract would be about $4,700.00. In
June 2018, Fueger emailed Scoll and stated that she was “not comfortable paying
more that 10%” of her inheritance to Scoll. A few days later, Fueger sent another
email to Scoll stating that she did not want to pay any amount to Scoll out of her
inheritance, and also stating that “[t]his will be a legal matter I will be pursuing. I
will do everything in my power to insure [sic] everyone is protected and this will
never happen again at the minimum in our State of Wisconsin.”
¶11 Fueger then emailed some heirs who had entered into contracts with
Scoll. She encouraged each to join in a motion in the Barry Estate to void Scoll’s
contracts with them. Fueger’s statements in that email included:
 “We must act now!!”; and
 “Let’s nail these guys to the wall!!!”
Fueger also urged one of the heirs to “[p]lease share this” email with additional
heirs.
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¶12 Nine of the heirs, including Fueger, retained an attorney to litigate
against Scoll in the Barry Estate. They filed a petition in the Barry Estate in July
2018 seeking to void Scoll’s contracts with some of the heirs.
¶13 That petition in the Barry Estate was denied on summary judgment,
and Scoll’s contracts were not voided. Distributions to all heirs were then
completed, both to those who entered into the contracts with Scoll and those who
did not, and the Barry Estate was closed in June 2020.
¶14 Fueger sent communications that Scoll alleges are defamatory. The
specifics of those communications will be discussed later in this opinion.
¶15 Scoll filed this lawsuit against Fueger. The operative complaint
contains two claims. The first is a claim for defamation, and the second claim is
for tortious interference with contracts. Fueger moved for summary judgment on
both claims in the circuit court, arguing as to the defamation claim that none of her
allegedly defamatory communications were actionable. Scoll opposed the motion,
but did not itself move for partial or full summary judgment.
¶16 The circuit court denied Fueger’s motion with respect to the tortious
interference with contracts claim and granted the motion with respect to the
defamation claim.2
2
In light of its decision regarding the defamation claim, the circuit court did not rule on
a motion from defendant American Family Insurance requesting a declaratory judgment on
whether it has a duty to defend or indemnify Fueger in this action.
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No. 2021AP772
¶17 Scoll voluntarily dismissed the tortious interference with contracts
claim and filed this appeal. We set forth other material facts in the following
discussion.
DISCUSSION
¶18 Scoll argues that the circuit court erred in granting summary
judgment to Fueger because there are genuine issues of material fact which require
a jury trial to resolve. We agree for the reasons we now summarize.
¶19 The elements of a common law action for defamation are:
(1) a false statement; (2) communicated by speech,
conduct or in writing to a person other than the one
defamed; and (3) the communication is unprivileged
and tends to harm one’s reputation, lowering him or her
in the estimation of the community or deterring third
persons from associating or dealing with him or her.
Ladd v. Uecker, 2010 WI App 28, ¶8, 323 Wis. 2d 798, 780 N.W.2d 216. 3 In the
framework of Fueger’s summary judgment motion, we must determine three
issues. The first issue is whether there is a genuine issue of material fact that
Fueger’s communications about Scoll could be capable of being understood in a
defamatory sense, in which case it is for a jury to find the facts necessary to
resolve whether each statement at issue has a defamatory meaning. We conclude
that there are genuine issues of material fact precluding summary judgment in
favor of Fueger on the issue of defamatory meaning.
¶20 The second issue concerns the defamation doctrine that, under
certain circumstances, an allegedly defamatory statement is not actionable because
3
Whether any statement is true is a defense that we discuss later in this opinion.
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No. 2021AP772
it is deemed “privileged.” See Otten v. Schutt, 15 Wis. 2d 497, 504, 113 N.W.2d
152 (1962) (defendant in defamation action has burden to show that allegedly
defamatory statement is protected by a privilege). We explain below why the need
for fact-finding regarding the alleged existence of privileges for several statements
at issue here precludes summary judgment.
¶21 The third issue concerns the defamation doctrine that statements can
lose protection based on a privilege if the defendant abuses the privilege. See
Denny v. Mertz, 106 Wis. 2d 636, 663, 318 N.W.2d 141 (1982) (a defendant is
liable for a defamatory statement if an asserted privilege has been abused by the
defendant because the privilege is forfeited as a result of the abuse). We explain
below that there are genuine issues of material fact concerning Fueger’s purported
abuse of privileges which would result in her forfeiture of the protection of any
privileges that could apply.
¶22 We begin by considering our standards of review, summary
judgment methodology, and governing principles.
I. Standards of Review, Summary Judgment Methodology,
and Governing Principles.
¶23 We review the grant or denial of summary judgment de novo,
applying the same standards as the circuit court does. Ackerman v. Hatfield, 2004
WI App 236, ¶9, 277 Wis. 2d 858, 691 N.W.2d 396.
¶24 A party is entitled to summary judgment if there are no disputed
issues of fact and that party is entitled to judgment as a matter of law. WIS. STAT.
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§ 802.08(2) (2019-20).4 The initial step in summary judgment methodology is to
analyze the complaint to determine whether it states a claim. Hart v. Bennet,
2003 WI App 231, ¶12, 267 Wis. 2d 919, 672 N.W.2d 306. The parties do not
address this step, and Fueger implicitly acknowledges that Scoll’s operative
complaint states a cause of action for defamation. In circumstances such as this in
which the defendant (here, Fueger) is moving for summary judgment, the second
step in summary judgment methodology requires a court to examine the
defendant’s submissions to determine whether those establish a prima facie
defense to the claim. Id.; Erdmann v. SF Broad. of Green Bay, Inc., 229 Wis. 2d
156, 163, 599 N.W.2d 1 (Ct. App. 1999) (“To make a prima facie case for
summary judgment, [the] moving defendant [in a defamation action] must
establish a defense that would defeat [the plaintiff’s] claim as a matter of law.”).
If the second step is satisfied by the defendant, in the third step in summary
judgment methodology a court determines whether the submissions of the plaintiff
(here, Scoll) create a genuine issue of material fact requiring a trial. Hart, 267
Wis. 2d 919, ¶9.
¶25 On summary judgment, a court does not decide genuine issues of
material fact or choose between conflicting interpretations of the facts.
Ackerman, 277 Wis. 2d 858, ¶15. If disputed issues of material fact exist, or
reasonable alternative inferences can be drawn from the facts, then summary
judgment must not be granted. Id. A court views the record in the light most
favorable to the party opposing the summary judgment motion. Biskupic v.
Cicero, 2008 WI App 117, ¶12, 313 Wis. 2d 225, 756 N.W.2d 649. “Any
4
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
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No. 2021AP772
reasonable doubt as to the existence of a factual issue must be resolved against the
party moving for summary judgment.” Ackerman, 277 Wis. 2d 858, ¶9.
¶26 In this particular context, this court has stated: “In matters
concerning the law of defamation,” “we must draw all justifiable inferences in
favor of the non-moving party, including questions of credibility and of the weight
to be accorded particular evidence.” Terry v. Journal Broad. Corp., 2013 WI
App 130, ¶13, 351 Wis. 2d 479, 840 N.W.2d 255 (quoted source omitted).
¶27 Whether a communication is capable of having a defamatory
meaning is a matter of law for a court to determine, and our review of this issue is
de novo. Laughland v. Beckett, 2015 WI App 70, ¶21, 365 Wis. 2d 148, 870
N.W.2d 466; Fields Found., Ltd. v. Christensen, 103 Wis. 2d 465, 482-84, 309
N.W.2d 125 (Ct. App. 1981). If a court rules that “the statements complained of
are capable of a nondefamatory meaning as well as a defamatory meaning, then a
jury question is presented.” Converters Equip. Corp. v. Condes Corp., 80 Wis. 2d
257, 262-63, 258 N.W.2d 712 (1977).
¶28 Whether a conditional privilege, such as those privileges asserted by
Fueger in this case, “attaches to a particular occasion is a question of law” that this
court reviews de novo. Olson v. 3M Co., 188 Wis. 2d 25, 45, 523 N.W.2d 578(Ct. App. 1994) (citing RESTATEMENT (SECOND) OF TORTS § 619(1) cmt. a
(1977)).
¶29 Turning to Scoll’s argument that Fueger does not have the protection
of privileges because she abused those, “[t]he abuse of a conditional privilege is
for the fact finder to decide if there are disputed facts or competing reasonable
inferences to be drawn from undisputed facts. But where ‘the facts are such that
only one conclusion can reasonably be drawn,’ the court properly makes this
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No. 2021AP772
determination.” Id. at 46 (quoting RESTATEMENT (SECOND) OF TORTS § 619(2)
cmt. b (1977)). Our review of this issue is also de novo. See id.
II. Is Each Fueger Communication Capable of Having a
Defamatory Meaning?
¶30 As noted, the first inquiry in evaluating a defamation claim is for the
court to determine whether the communication is capable of having a defamatory
meaning. Martin v. Outboard Marine Corp., 15 Wis. 2d 452, 462, 113 N.W.2d
135 (1962); Laughland, 365 Wis. 2d 148, ¶21. “A communication is defamatory
if it tends to harm the reputation of another so as to lower him [or her] in the
estimation of the community or deter third persons from associating or dealing
with him [or her].” Zinda v. Louisiana Pac. Corp., 149 Wis. 2d 913, 921, 440
N.W.2d 548 (1989). “A statement is also defamatory if, in its natural and ordinary
sense, it imputes to the person the charged commission of a criminal act.”
Converters Equip., 80 Wis. 2d at 263.
¶31 In determining whether a communication may be defamatory, the
words “must be construed in the plain and popular sense in which they would
naturally be understood.” Terry, 351 Wis. 2d 479, ¶19. In other words, a court
considers whether the communication is “reasonably capable of conveying a
defamatory meaning to the ordinary mind.” Laughland, 365 Wis. 2d 148, ¶21.
“The context and circumstances” in which the communication was made must also
be considered. Terry, 351 Wis. 2d 479, ¶19; see also WIS JI—CIVIL 2501 (“In
determining whether (defendant) made or published a defamatory statement, you
should consider the whole context of the communication, giving the particular
words of defamation their natural and ordinary meaning.”); Westby v. Madison
Newspapers, Inc., 81 Wis. 2d 1, 6, 259 N.W.2d 691 (1977) (“The issue before this
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No. 2021AP772
court then is whether [the communication] was capable of being understood in a
defamatory sense in the community by reasonable persons. In resolving this issue,
words or elements of the article may not be viewed in isolation, but must be
considered in context in relation to the whole.”).
¶32 Germane to this appeal, communications which allege that an
individual or a business has engaged in “dishonorable, unethical or unprofessional
conduct in a trade, business or profession are capable of a defamatory meaning.”
Fields, 103 Wis. 2d at 483 (citing Converters Equip., 80 Wis. 2d at 263); see also
Wozniak v. Local 1111 of United Elec., Radio & Mach. Workers of Am., 57 Wis.
2d 725, 205 N.W.2d 369 (1973) (worker accused of being a “scab”); Ranous v.
Hughes, 30 Wis. 2d 452, 141 N.W.2d 251 (1966) (teacher accused of making a
personal attack on a student in a classroom); Walters v. Sentinel Co., 168 Wis.
196, 169 N.W. 564 (1918) (doctor called a “quack”).
¶33 Liability can arise from a communication that defames only through
what it implies. Terry, 351 Wis. 2d 479, ¶14. As our supreme court has held:
“One may be libeled by implication and innuendo quite as easily as by direct
affirmation.” Converters Equip., 80 Wis. 2d at 264 (quoting Frinzi v. Hanson, 30
Wis. 2d 271, 277, 140 N.W.2d 259 (1966)).
¶34 As noted earlier, an element of defamation is a communication to a
person other than the person or business that was allegedly defamed. Ladd, 323
Wis. 2d 798, ¶8. Fueger does not dispute that she has communicated about Scoll
and its principal, Remeika, to the heirs, persons Scoll refers to as “potential
referral sources,” the Better Business Bureau, and the following law enforcement
or regulatory agencies: Waunakee Police Department, United States Department
of Justice, Wisconsin Department of Agriculture, Trade, and Consumer Protection
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No. 2021AP772
(“DATCP”), and the Wisconsin Office of Lawyer Regulation (“OLR”).5 Fueger
also communicated with a local television station reporter about Scoll and
Remeika.
¶35 According to Scoll, Fueger’s defamatory statements are the
following. Fueger does not dispute that she made the following statements to the
persons or offices noted.
¶36 In emails to the heirs, Fueger stated that Scoll “pray[s] [sic] on
innocent and vulnerable people” and “acted unethically.” In the same emails,
Fueger stated that Scoll’s conduct in regard to the Barry Estate was “treachery,” an
“evil tactic,” and “unethical and down[]right disgusting.” Fueger further stated:
“Our main point, is that [Scoll] acted unethically. We believe there are laws in
place to protect us.” Scoll contends that the latter statement clearly implies illegal
conduct on the part of Scoll.
¶37 In emails to persons Scoll refers to as “potential referral sources” for
its business, Fueger stated that Scoll’s business is a “racket” and she is “shocked
this sort of thing can go on.” In one of those same emails, Fueger asked for “help
[to] put an end to some of the unscrupulous activity of some people in this
industry …” and referred to the heir-finding business Scoll is in as
“unscrupulous.”
¶38 Fueger filed a complaint with the Better Business Bureau, with
which Scoll had an A+ rating. In the complaint, Fueger stated that Scoll is “a
5
Fueger does not dispute that, if it is determined that she made unprivileged defamatory
statements about Remeika in Remeika’s professional capacity as Scoll’s principal, those
statements are actionable in the defamation claim brought by Scoll.
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No. 2021AP772
scam,” that Fueger “was scammed” by Scoll, and that Scoll “use[s] all the
psychological tactics to get you to sign a contract.”
¶39 According to Scoll, Fueger implied that Scoll is engaged in criminal
wrongdoing when she stated in email communications to a local television news
reporter that “these [heir-finding] companies,” including Scoll, are “being looked
at by the Department of Justice.”6
¶40 In communications with OLR, which investigates allegations of
attorney malfeasance or misconduct, and the Waunakee Police Department,
Fueger stated that Remeika had committed “attorney misconduct” through
“practicing law without a license” and “barratry” although Remeika is not a
licensed attorney. In those same communications, Fueger stated that Remeika
committed “crimes” including barratry, and the unauthorized practice of law.7
¶41 In addition, in a letter to OLR, in Scoll’s view, Fueger implied that
Scoll violated rules of professional ethics, and engaged in criminal behavior,
6
In an on-air news segment for WISC-TV3/Channel3000.com in which Scoll’s business
was named, Fueger stated that Scoll’s business practice “is not good…. I’m like, this isn’t, this
isn’t right.” (https://www.youtube.com/watch?v=x2aNN2Svowg, last visited March 28, 2022).
That is the only statement from Fueger made in the news segment that Scoll alleges is
defamatory. We conclude that, in the context of the news segment, Fueger’s one statement
focused on by Scoll cannot be understood as defamatory as a matter of law. Most of the news
segment consists of statements by a reporter and a third-party interviewed by the reporter that
cannot be attributed to Fueger.
Separately, we note that a video or transcript of this news segment is not in the record.
Instead, Scoll’s briefing in this court refers to an URL that leads to a video on the YouTube
website. Because of the sometimes transitory nature of such videos on the internet, we direct
counsel to, in the future, place a copy of the video in the record rather than directing this court to
search for evidence on the internet.
7
WISCONSIN STAT. §§ 757.295 (barratry) and 757.30 (practicing law without a license)
establish that barratry and the unauthorized practice of law are defined as conduct that can be
charged as unclassified misdemeanor crimes under Wisconsin law.
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No. 2021AP772
writing that “at one time maybe Scoll … operated within the confines of those
forensic genealogist[s] who follow a set of ethics … until [Remeika] came across
Kemp & Associates ….” Regarding this last reference, Fueger does not dispute
that Kemp & Associates was a probate research firm that was convicted, along
with its principal, of criminal antitrust violations, and was fined over $1.5 million.
Fueger has also stated to OLR that Remeika “intentionally withheld information
concerning the size of the Barry Estate” from the heirs and “manipulated heirs into
retaining [Scoll’s] services.”
¶42 In a complaint to DATCP, Fueger stated that Scoll and Remeika are
“leaches [sic] … who pray [sic] on innocent people” and that Scoll “fooled” her.
The complaint further stated that Scoll “did not disclose all the information on
what [Scoll was] collecting,” Scoll “eluded [sic] to [the amount of the Barry
Estate] being … a small amount,” and Scoll was “very mis[]leading” in
communications to Fueger.
¶43 For convenience, we refer to each of Fueger’s statements just
discussed (with the exception of Fueger’s statement that was aired in the television
news segment mentioned in note 6, supra) as the “allegedly defamatory
statements.” Fueger argues that none of the allegedly defamatory statements can
be understood in a defamatory sense for four reasons, but we reject each of her
arguments.
¶44 First, Fueger contends, in a merely generalized conclusory fashion
and without any discussion of the allegedly defamatory statements, that none of
her statements is capable of having a defamatory meaning. Construing the
communications “in the plain and popular sense in which they would naturally be
understood,” in proper context, we conclude that Fueger’s allegedly defamatory
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No. 2021AP772
statements regarding Scoll could reasonably be interpreted by a jury as tending to
harm the reputation of that business so as to lower that business in the estimation
of the community and deter persons from dealing with Scoll. See Zinda, 149 Wis.
2d at 921; Westby, 81 Wis. 2d at 6; Terry, 351 Wis. 2d 479, ¶19; Fields, 103 Wis.
2d at 483. Some of the allegedly defamatory statements at least implied that
Remeika, Scoll’s principal, had committed one or more crimes. The language
used in those statements cannot be reconciled with Fueger’s position because a
jury could reasonably determine that Fueger’s allegedly defamatory statements
are, in fact, defamatory.
¶45 Second, Fueger asserts that her “opinions cannot be proven false.”
“By definition, a defamatory statement must be false.” Anderson v. Hebert, 2011
WI App 56, ¶14, 332 Wis. 2d 432, 798 N.W.2d 275. Therefore, the truth of a
communication is an absolute defense to a defamation claim. Id. Further, the
communication need not “be true in every particular. All that is required is that
the statement be substantially true.” Id. It is Fueger’s burden in these
circumstances to establish that her statements were substantially true. See, e.g.,
Laughland, 365 Wis. 2d 148, ¶¶23, 26. But, other than making that wholly
conclusory assertion, Fueger does not explain how evidence in the record
establishes the truth of any of her allegedly defamatory statements, which Scoll
alleged in its complaint and argues on appeal are false. Accordingly, we reject this
argument as undeveloped. See State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d
15No. 2021AP772
633 (Ct. App. 1992) (explaining that we need not consider inadequately developed
arguments).8
¶46 Third, Fueger contends that some of her statements cannot be
understood as having a defamatory meaning because “[o]pinions cannot be
defamatory.” More specifically, Fueger argues that her complaint to the Better
Business Bureau contained only opinions when she stated that Scoll is a “scam,”
Fueger “was scammed” by Scoll, and Scoll “use[s] all the psychological tactics to
get you to sign a contract.” Fueger asserts that these are only opinions because
each was qualified by her stating these things were true “in her opinion.”
Similarly, Fueger contends that “any statements [Fueger made to others] that Scoll
was ‘unethical,’ running a ‘racket,’ or ‘unscrupulous,’ or that Scoll intentionally
withheld information regarding the size of the Barry Estate are only opinions that
Fueger expressed.”
¶47 We disagree with Fueger, including her blanket assertion that
opinions cannot be defamatory. An allegedly defamatory statement may not be
actionable because it is an opinion, but “communications are not made
nondefamatory as a matter of law merely because they are phrased as opinions,
suspicions or beliefs.” Laughland, 365 Wis. 2d 148, ¶27; see also Converters
Equip., 80 Wis. 2d at 264 (“It is true that the letters contained words such as
‘apparently’ and ‘appear to be.’ This changes nothing. The authorities agree that
8
In a similar vein, we are unsure whether Fueger intends to argue that her statements to
OLR and the Waunakee Police Department about alleged “attorney misconduct” are true when
she contends in briefing in this court that those statements were “based in fact” because she
“relied” on the advice of an attorney. If that is Fueger’s intent, we reject her argument because
she does not explain it. Further, Fueger gives no record citation to summary judgment evidence
that could support the factual assertion, whatever its potential legal significance, that she “relied”
on an attorney’s advice in making those statements.
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No. 2021AP772
communications are not made nondefamatory as a matter of law merely because
they are phrased as opinions, suspicions or beliefs.”). The strong language used
by Fueger, as just quoted, does not become incapable of a defamatory meaning
merely because Fueger has a basis to argue that some of her allegedly defamatory
statements were merely expressions of opinion. Depending on the relevant
evidence adduced at trial, Fueger might have viable arguments to present to the
jury that some of the statements at issue were not defamatory because those
statements should have been understood to be expressions of opinion. But
summary judgment is not appropriate based on her argument that her
qualifications compel the conclusion that the statements were not defamatory.
¶48 Fourth, Fueger argues that some of her allegedly defamatory
statements cannot be construed as concerning Scoll because those statements can
only reasonably be interpreted as referring to the heir-finding industry as a whole.
A jury could reasonably construe some of Fueger’s allegedly defamatory
statements as referring to this industry as a whole. But, looking at the statements
in context, a jury also could draw reasonable inferences that Fueger was referring
to Scoll in those statements, whether or not the statements also implicated others
in the same industry to a greater or lesser degree. “Any reasonable doubt as to the
existence of a factual issue must be resolved against the party moving for
summary judgment.” Ackerman, 277 Wis. 2d 858, ¶9; see Condit v. Dunne, 317
F. Supp. 2d 344, 359 (S.D.N.Y. 2004) (“[W]hether defendant’s statements are
about plaintiff ordinarily presents a factual issue.”).
¶49 To repeat, our supreme court instructs that, “[i]f the statements are
capable of a nondefamatory as well as a defamatory meaning, then a jury question
is presented.” Zinda, 149 Wis. 2d at 921. Here, there are jury questions regarding
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No. 2021AP772
whether Fueger’s allegedly defamatory statements can be understood to have a
defamatory meaning.
III. Are Any of the Allegedly Defamatory Statements
Conditionally Privileged?
¶50 Fueger argues that, even if the allegedly defamatory statements are
defamatory, she cannot be liable because several of the statements are protected by
one of two privileges, and therefore summary judgment must be granted in her
favor. The burden is on Fueger to prove that any allegedly defamatory statement
is protected by a privilege. See Otten, 15 Wis. 2d at 504.
¶51 One of the two privileges that Fueger claims, for some of the
statements, is called the “public interest” privilege. Under this privilege,
defamatory statements are privileged “based on ‘the public policy that certain
conduct which would otherwise be actionable may escape liability because the
defendant is acting in furtherance of some interest of societal importance, which is
entitled to protection even at the expense of uncompensated harm to the
plaintiff.’” Hart, 267 Wis. 2d 919, ¶29 (quoting Zinda, 149 Wis. 2d at 921-22).
Regarding the public interest privilege, our supreme court has stated:
In [the RESTATEMENT OF TORTS], it is stated that an
occasion is conditionally privileged when the
circumstances induce a correct or reasonable belief that
(a) facts exist which affect a sufficiently important public
interest, and (b) the public interest requires the
communication of the defamatory matter to a public officer
or private citizen and that such person is authorized or
privileged to act if the defamatory matter is true.
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No. 2021AP772
Otten, 15 Wis. 2d at 500.9
¶52 The other privilege that Fueger claims is called the “common
interest” privilege. Under the common interest privilege, a defamatory statement
is privileged if it is made “on a subject matter in which the person making the
statement and the person to whom it is made have a legitimate common interest.”
Posyniak v. School Sisters of St. Francis of St. Joseph’s Convent, 180 Wis. 2d
619, 628, 511 N.W.2d 300 (Ct. App. 1993); see also Zinda, 149 Wis. 2d at 922.
Our supreme court has explained the basis for the common interest privilege:
Section 596 of the RESTATEMENT 2D OF TORTS
defines the “common interest” privilege:
An occasion makes a publication conditionally
privileged if the circumstances lead any one of several
persons having a common interest in a particular subject
matter correctly or reasonably to believe that there is
information that another sharing the common interest is
entitled to know.
The common interest privilege is based on the
policy that one is entitled to learn from his [or her]
associates what is being done in a matter in which he or she
has an interest in common. Thus, defamatory statements
are privileged which are made in furtherance of common
… business, or professional interests.
Zinda, 149 Wis. 2d at 922-23.
¶53 Fueger asserts that the public interest privilege attaches to her
allegedly defamatory statements to regulatory agencies, law enforcement, and the
Better Business Bureau. She asserts that the common interest privilege attaches to
9
“In the area of conditional privilege, [Wisconsin courts] look to RESTATEMENT
(SECOND) OF TORTS.” Hart v. Bennet, 2003 WI App 231, ¶29, 267 Wis. 2d 919, 672 N.W.2d
306.
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No. 2021AP772
her allegedly defamatory statements made to the heirs. Fueger makes no
discernible argument on appeal that her allegedly defamatory statements to Scoll’s
potential referral sources or to the news reporter that preceded the news segment
are privileged. Fueger asserts that there are no genuine issues of material fact
regarding whether the privileges asserted by her apply to her allegedly defamatory
statements. For the following reasons, we disagree.
¶54 To make a prima facie defense to a defamation claim, Fueger, as the
moving defendant on summary judgment, must establish a defense that will defeat
Scoll’s claim as a matter of law. Hart, 267 Wis. 2d 919, ¶12; Erdmann, 229 Wis.
2d 156, 163. The parties agree that both of the privileges asserted by Fueger are
“conditional” rather than “absolute.” See Vultaggio v. Yasko, 215 Wis. 2d 326,
¶17, 572 N.W.2d 450 (1998). A conditional privilege applies only in situations in
which “persons making the statements have reasonable grounds for believing the
truth of the statements made” and “the statements made are reasonably calculated
to accomplish the privileged purpose.” Converters Equip., 80 Wis. 2d at 265.10
Accordingly, to have a conditional privilege apply, one requirement is that Fueger
establish that she had reasonable beliefs about her allegedly defamatory
statements.
¶55 Here, Fueger asserts that some of her allegedly defamatory
statements are privileged because she had “reasonable belie[fs]” about the truth of
10
Similarly, as already noted, the public interest privilege states that otherwise
defamatory statements are privileged if the defendant has a “reasonable belief that … facts exist
which affect a sufficiently important public interest,” Otten v. Schutt, 15 Wis. 2d 497, 500, 113
N.W.2d 152 (1962), and the common interest privilege requires that the defendant “reasonably …
believe[s] that there is information that another sharing the common interest is entitled to know,”
Zinda v. Louisiana Pacific Corp., 149 Wis. 2d 913, 922, 440 N.W.2d 548 (1989).
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No. 2021AP772
her allegedly defamatory statements. As examples, she argues that she had
reasonable beliefs that: Scoll “was engaging in unfair and misleading business
practices”; Remeika was “engaged in the unauthorized practice of law,” and other
acts of Remeika were “unethical”; as asserted to DATCP by Fueger, both Scoll
and Remeika are “leaches [sic] … who pray [sic] on innocent people,” Scoll
“fooled” her, Scoll “did not disclose all the information on what [Scoll was]
collecting,” and Scoll was “very mis-leading” in communications to Fueger; and
Fueger had a “well-established position” that she asserted to the Better Business
Bureau that Scoll’s business is a “scam,” Fueger “was scammed” by Scoll, and
that Scoll “use[s] all the psychological tactics to get you to sign a contract.” In
response, Scoll argues that Fueger’s beliefs just described are not reasonable
because, among other reasons, Fueger had no viable basis for her allegedly
defamatory statements.
¶56 As discussed earlier, a court must view the record in the light most
favorable to the party opposing the summary judgment motion. Biskupic, 313
Wis. 2d 225, ¶12. Also, “[i]n matters concerning the law of defamation,” “we
must draw all justifiable inferences in favor of the non-moving party, including
questions of credibility and of the weight to be accorded particular evidence.”
Terry, 351 Wis. 2d 479, ¶13 (quoted source omitted).11 Here, consistent with our
discussion above regarding Fueger’s argument that her statements “cannot be
11
We recognize that whether a conditional privilege “attaches to a particular occasion is
a question of law” determined by a court. See Olson v. 3M Co., 188 Wis. 2d 25, 45, 523 N.W.2d
578 (Ct. App. 1994) (citing RESTATEMENT (SECOND) OF TORTS § 619(1) cmt. a (1977)).
However, the circuit court does not resolve disputed facts regarding whether any allegedly
defamatory statements are privileged. See, e.g., WIS JI—CIVIL 2507, cmt. (“If the facts are in
dispute, the jury determines the issues of fact, and the court decides whether the facts found by
the jury make the publication privileged.”).
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No. 2021AP772
proven false,” Fueger provides us with nothing more than conclusions,
unsupported by the record, that she had reasonable grounds to believe her
allegedly defamatory statements. In sum, Fueger may (or may not) prove at trial
that there is a factual basis for one or both of the two privileges to apply to one or
more of her allegedly defamatory statements. But she has not established that
assertion based on the current record. Therefore, the issue of whether or not
privileges could protect any such statement cannot be resolved on summary
judgment.
IV. Alleged Abuse of Either Asserted Conditional Privilege.
¶57 A defendant is liable for a defamatory statement if a privilege
asserted by the defendant has been abused by the defendant because the privilege
is forfeited as a result of the abuse. Denny v. Mertz, 106 Wis. 2d 636, 663, 318
N.W.2d 141 (1982). It is a plaintiff’s burden to establish abuse of a privilege in a
defamation action. See Olson, 188 Wis. 2d at 38 (citing Zinda, 149 Wis. 2d at
926).
¶58 “The question whether a conditional privilege has been abused is a
factual question for the jury, unless the facts are such that only one conclusion can
be reasonably drawn.” Zinda, 149 Wis. 2d at 926 (citing RESTATEMENT
(SECOND) OF TORTS § 619(2) cmt. b (1977)). In other words, summary judgment
cannot be granted regarding whether a conditional privilege has been abused if
“[t]here are reasonable inferences from the evidence that, if believed by a jury,
would defeat this defense” or “a reasonable fact finder could decide” that a
privilege was abused. Hart, 267 Wis. 2d 919, ¶31. Scoll argues that whether
Fueger abused (and therefore forfeited) each asserted privilege is a jury issue
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No. 2021AP772
because, based on reasonable inferences from evidence in the record, a jury could
decide that both privileges have been abused by Fueger. We agree.
¶59 Our supreme court has set forth conditions constituting abuse of a
privilege in defamation actions:
The Restatement lists five conditions which may constitute
an abuse of the privilege …. The privilege may be abused,
(1) because of the publisher’s knowledge or reckless
disregard as to the falsity of the defamatory matter (see
§§ 600-602); (2) because the defamatory matter is
published for some purpose other than that for which the
particular privilege is given (see § 603); (3) because the
publication is made to some person not reasonably believed
to be necessary for the accomplishment of the purpose of
the particular privilege (see § 604); (4) because the
publication includes defamatory matter not reasonably
believed to be necessary to accomplish the purpose for
which the occasion is privileged (see § 605); or (5) the
publication includes unprivileged matter as well as
privileged matter (see § 605A).
Vultaggio, 215 Wis. 2d 326, ¶9 (internal citation omitted). Scoll argues that
conditions (1) and (2), just quoted, apply in these circumstances regarding both
asserted privileges. The “occurrence” of any one of those five “conditions”
“causes the loss of the privilege.” Id. With that background, we now turn to the
arguments of the parties.
¶60 We first discuss condition (2). Specifically, Scoll contends that
Fueger abused both the asserted common interest and public interest privileges
because the allegedly defamatory statements were “published for some purpose
other than that for which the particular privilege is given.” See id. (quoting
RESTATEMENT (SECOND) OF TORTS § 603 (1977)). Scoll contends that Fueger did
so in two separate ways: by exhibiting “ill will” toward Scoll, which abused both
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No. 2021AP772
asserted privileges; and by publishing some of the allegedly defamatory statements
to regulatory agencies “excessively,” which abused the public interest privilege.
A. Ill Will.
¶61 Concerning Scoll’s assertion of ill will by Fueger, our supreme court
has stated:
With respect to [§ 603] the RESTATEMENT
comments as follows:
“Thus, a publication of defamatory matter upon a
privileged occasion if made solely from spite or ill will is
an abuse and not a use of the occasion. However, if the
publication is made for the purpose of protecting the
interest in question, the fact that the publication is inspired
in part by resentment or indignation at the supposed
misconduct of the person defamed does not constitute an
abuse of the occasion.”
Ranous, 30 Wis. 2d at 468-69, 141 N.W.2d 251 (1966); see also Calero v. Del
Chem. Corp., 68 Wis. 2d 487, 507, 228 N.W.2d 737 (1975); RESTATEMENT
(SECOND) OF TORTS § 603, cmt. a (1977). Case law has further defined this
condition as “ill-will, envy, spite, revenge, or any other bad or corrupt motive[s].”
Calero, 68 Wis. 2d at 507.
¶62 Fueger contends that there is insufficient evidence that she exhibited
“ill will” toward Scoll. Fueger asserts that there is a reasonable inference from the
evidence that she believed that she had been misled by Scoll and that Scoll “acted
unethically and engaged in deception.” Relying on Milkovich v. Lorain Journal
Co., 497 U.S. 1 (1990), Fueger states that her allegedly defamatory statements to
the heirs were nothing more than “vigorous epithets” or a “lusty and imaginative
expression of contempt.” Further, Fueger asserts that the evidence could support a
finding that her decision to communicate with regulatory agencies and the Better
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No. 2021AP772
Business Bureau was at all times “measured and reasonable.” Fueger argues that
the reasonable inference from the evidence is that she made the allegedly
defamatory statements to the regulatory agencies and the Better Business Bureau
“to protect the public” and “enact regulation of the heir-finding industry” “of
which Scoll is a member,” and that the evidence supports the reasonable inference
that she did so because she believed that Scoll’s business is “deceptive and does
not live up to the standards by which [she] lives.”
¶63 Pertinent to our analysis, evidence regarding the behavior of a
defendant can support a finding of abuse of a privilege, ill will, and malice in a
defamation action. Anderson, 332 Wis. 2d 432, ¶25 (“A jury could also find
actual malice based on Hebert’s behavior.”); Hart, 267 Wis. 2d 919, ¶31. As
argued by Scoll, “there is no doubt about Fueger’s malicious proclivities directed
at those with whom she disagrees on matters connected to her disputes with Scoll
– including Scoll itself.” Scoll refers to these as “contextual and behavioral
evidence of Fueger’s malicious motivations.” Some examples are now discussed.
¶64 Scoll asserts that Fueger’s following statements to the attorney who
represented the heirs in the motion made in the Barry Estate to void the Scoll
contracts demonstrate her motivation to “hurt” Scoll:
I heard some mention of a Gag order if we lose [the
Petition in the Barry Estate proceedings to void the Scoll
contracts]. I’m not up for that. I would rather take $1000
create a website about what happened and go out on social
media to educate people. If there is a chance we can lose,
that tactic would hurt [Scoll] more and offer me more ‘bang
for my buck.’
(Emphasis omitted.) After Fueger fired that attorney, Fueger wrote to the attorney
again about Scoll, stating, “I would be better served to take these people down in
my own way.” (Emphasis omitted.)
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No. 2021AP772
¶65 Scoll also argues that Fueger became “fixated” on Remeika, Scoll’s
principal. As one example, Fueger took pictures of Remeika in a restaurant from
outside the restaurant.
¶66 As noted earlier, Fueger emailed Scoll’s clients, including the heirs.
She encouraged each to join in a challenge to void Scoll’s contracts with the heirs.
Fueger’s statements in that email included:
 “We must act now!!”; and
 “Let’s nail these guys to the wall!!!”
¶67 Fueger’s position is that the evidence reflects that, in communicating
about Scoll, she has acted as a reasonable person would, reaching out to others
with reasonable, measured language. The evidence just discussed arguably rebuts
Fueger’s position. As already noted, whether a privilege has been abused is not a
jury issue only if just one conclusion can reasonably be drawn from the evidence
and reasonable inferences. Here, a jury may reasonably determine that Fueger
made the allegedly defamatory statements “solely from spite or ill will.” See
Ranous, 30 Wis. 2d at 469.
B. Published Excessively.
¶68 Scoll also argues that Fueger made statements to the Waunakee
Police Department and OLR “excessively” and those statements were therefore
published for a purpose other than that for which a particular privilege was given.
Our supreme court has recognized that a conditional privilege can be abused if a
statement that might otherwise be privileged is published beyond that needed for
purposes of the privilege; that is, the statement is published “excessively” and that
26
No. 2021AP772
abuses the privilege. See Zinda, 149 Wis. 2d at 921-26; RESTATEMENT (SECOND)
OF TORTS § 603 (1977).
¶69 Scoll contends that, after OLR told Fueger that it had no jurisdiction
over her complaints and the Waunakee Police Department told her that there was
no crime and no investigation of Remeika or Scoll warranted, Fueger continued to
contact those agencies asserting that Remeika had committed the crime of
unauthorized practice of law.
¶70 In response, Fueger states that her approach of continually
contacting the Waunakee Police Department and OLR was “tenacious, but not
excessive.” In addition, Fueger contends that she did not “belabor any of those
[agency contacts]” and therefore “her approach” was not “excessive.” Fueger
further contends that she made these agency contacts only so that she could
“share[]” information that was “important to the public interest” based on “her
reasonable belief that said information was shared with someone authorized to
take action.” (Emphasis omitted.)
¶71 Despite clear statements from OLR and the Waunakee Police
Department that there was nothing further for those agencies to do about her
complaints, Fueger continued to make the same allegations against Scoll and
Remeika to those offices. We agree with Scoll that a jury could consider those
further contacts to be “excessive” and an abuse of the public interest privilege.
C. Reckless Disregard as to Falsity.
¶72 As noted earlier, Scoll also argues that Fueger forfeited her two
asserted privileges because she acted with “knowledge or reckless disregard as to
the falsity of” her allegedly defamatory statements. See Vultaggio, 215 Wis. 2d
27No. 2021AP772
326, ¶9 (citing RESTATEMENT (SECOND) OF TORTS §§ 600-602 (1977)). “Reckless
disregard as to truth or falsity exists when there is a high degree of awareness of
probable falsity or serious doubt as to the truth of the statement.” Olson, 188 Wis.
2d at 39 (quoting RESTATEMENT (SECOND) OF TORTS § 600(a) cmt. b (1977)).
¶73 In light of our decision that there are jury issues as to whether
Fueger abused the asserted privileges, and because abuse of any one of the
conditions is sufficient to forfeit a privilege, Vultaggio, 215 Wis. 2d 326, ¶9, we
need not reach this issue. See Barrows v. American Fam. Ins. Co., 2014 WI App
11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (“An appellate court need not address
every issue raised by the parties when one issue is dispositive.”).
¶74 In sum, there are genuine issues of material fact which require a trial
about whether Fueger has abused either of her asserted privileges.
¶75 We add that our decisions regarding whether the allegedly
defamatory statements of Fueger can be understood as having a defamatory
meaning, whether a privilege applies to such statements, and whether a jury could
reasonably determine that Fueger has abused the privileges she asserts, are based
on the appellate record made in the circuit court before this appeal. This opinion
does not constrain decisions of the circuit court, or a jury, on remand based on the
state of the record as it develops after remand.
CONCLUSION
¶76 For the foregoing reasons, the order of the circuit court is reversed.
This matter is remanded to the circuit court to deny Fueger’s motion for summary
judgment and for further proceedings consistent with this opinion.
By the Court.—Order reversed and cause remanded with directions.
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No. 2021AP772
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
29