Frank Liska v. Pamela Bublitz ( 2023 )

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.
July 25, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP64 Cir. Ct. No. 2019CV2437
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
FRANK LISKA AND ROSE LISKA,
PLAINTIFFS-RESPONDENTS,
V.
PAMELA BUBLITZ,
DEFENDANT-APPELLANT.
APPEAL from orders of the circuit court for Milwaukee County:
WILLIAM SOSNAY, Judge. Affirmed in part, reversed in part, and remanded
with directions.
Before Brash, C.J., Donald, P.J., and Dugan, J.
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).
No. 2022AP64
¶1 PER CURIAM. Pamela Bublitz (Bublitz) appeals orders of the
circuit court granting partial summary judgment against her in favor of Karen
Shoman, Special Administrator for the Estate of Frank Liska (Special
Administrator)1 and Rose Liska (Rose), and granting sanctions against Bublitz for
discovery violations.2 Upon review, we affirm the circuit court’s orders granting
partial summary judgment and imposing sanctions of default judgment in favor of
the Liskas and dismissing Bublitz’s counterclaims. However, we reverse the
circuit court’s order granting the specific dollar amount ordered as part of the
sanction and remand with directions to explain how the court determined the
specific amounts awarded as part of the sanction.
BACKGROUND
¶2 On February 21, 2018, Frank and Rose named Bublitz to serve as
their Financial Power of Attorney (POA). At the time of Bublitz’s appointment as
POA, Frank and Rose were 93 and 89 years old, respectively.
¶3 Frank and Rose revoked Bublitz’s POA later that year on August 21
and 22, 2018, and on October 3, 2018, counsel for the Liskas demanded that
Bublitz “turn over all records of [Frank] that you have, and account for all
disbursements or expenses made from his assets by you.” Bublitz had also been
using Frank’s car, and counsel demanded that Bublitz return the car by
October 10, 2018. Bublitz requested additional time to comply; however, after
1
Frank Liska passed away since the filing of the summons and complaint in this case,
and pursuant to a motion for substitution, Frank’s estate has been substituted as the plaintiff.
2
For ease of reading, we refer to Frank, his estate, and Rose collectively as the Liskas
when appropriate.
2
No. 2022AP64
Bublitz still failed to comply after being given additional time, counsel sent
another letter dated November 21, 2018, again demanding an accounting and the
return of Frank’s personal property. At this time, counsel also sent a similar letter
on Rose’s behalf.
¶4 When Bublitz again failed to comply, the Liskas filed a complaint on
March 26, 2019, alleging eight causes of action: breach of duty of accounting,
breach of fiduciary duty, replevin, conversion, civil theft, fraud, undue influence,
and fraudulent misrepresentation. Bublitz filed an answer and counterclaims on
June 10, 2019.
¶5 On April 28, 2020, the Liskas filed a motion for partial summary
judgment that Bublitz “breached her fiduciary duty by failing to provide an
accounting” and is “liable … for conversion.” The Liskas asserted that during the
six months that Bublitz acted as Frank’s POA, she withdrew over $71,440 from
his BMO Harris checking account and cashed out $122,310.75 worth of BMO
Harris Certificates of Deposits prior to their maturity dates. They further asserted
that, of that $193,750.75, Bublitz did not account for $159,092.75 in
disbursements from Frank’s accounts. They also asserted that during the six
months that Bublitz acted as Rose’s POA, she cashed out Rose’s Chase Bank
Certificate of Deposit for $11,161 with a check payable to Bublitz, withdrew
$4,334.60 from Rose’s BMO Harris savings account and closed the account, and
withdrew $5,634.35 from Rose’s Chase Bank account for a total of $21,129.95,
and asserted that Bublitz did not account for those sums.3
3
We note that the Liskas asserted that Bublitz had withdrawn a larger sum from Rose’s
accounts, but as of the hearing on the motion for summary judgment, she had not accounted for
the $21,129.95.
3
No. 2022AP64
¶6 The circuit court held a hearing on the motion for summary
judgment on June 12, 2020.4 The court began by addressing several documents
Bublitz filed at 4 a.m. that morning and found that Bublitz had not filed anything
in response to the Liskas’ motion for summary judgment. Therefore, the court
stated, “There’s been no response, and the [c]ourt will find that there is no material
issue of fact here and the [c]ourt will grant summary judgment to the plaintiff
Rose in the amount of $21,129.95 and to the estate of Frank Liska in the amount
of $159,092.75.” The court entered a written order on July 17, 2020, to the same
effect.5
¶7 The case proceeded with the plaintiff’s remaining claims and
Bublitz’s counterclaims, and on January 13, 2021, Judge Grady held a hearing to
address outstanding motions, including three motions to dismiss Bublitz’s
counterclaims and a motion for injunctive relief related to Bublitz’s use of Frank’s
car, which were all filed by the Liskas. At that hearing, Judge Grady granted the
Liskas’ motions to dismiss Bublitz’s counterclaims, with the exception of her
breach of contract and replevin claims, and the Liskas’ motion for injunctive
relief, which limited Bublitz’s use of Frank’s car. The court also addressed
“things trickling in” past the original deadline of September 30, 2020, for close of
discovery and filing motions, noted that the failure to abide by the deadlines in the
scheduling order was causing delay in resolving the case, and indicated that the
4
The Honorable Jeffrey A. Conen presided over the hearing for the motion for summary
judgment and entered the corresponding order. However, three additional judges—the Honorable
Lindsey Canonie Grady, the Honorable William S. Pocan, and the Honorable William Sosnay—
presided over this case during the three years it was pending in the circuit court.
5
The order was originally entered in violation of the five-day rule, but the matter was
resolved.
4
No. 2022AP64
court would not entertain anything more past the extended deadline of
December 28, 2020. The court further put Bublitz “on notice” that the court
would set a scheduling order at the next hearing with “firm” dates because “[t]his
case has gone on two years, so the [c]ourt would not allow for a delay or an
adjournment by anyone.”
¶8 However, at a scheduling conference on February 1, 2021, Judge
Grady again addressed ongoing discovery issues, restated that discovery was cut
off as of December, and yet Bublitz requested additional time for discovery
because she still needed more time to compile records for the accounting. In so
doing, for the first time since the Liskas’ original demand for an accounting in
October 2018, Bublitz told the court that all of the “records and receipts,
statements” needed to comply with the accounting and the discovery demands
were in a five-gallon Rubbermaid tote. Judge Grady responded, “My only
confusion is that—So these receipts have been in your possession the entire time
in a [Rubbermaid] tote—is that correct?” Bublitz said, “Yes.” Judge Grady then
gave her until March 1st to electronically turn over those items.
¶9 On July 12, 2021, after Bublitz failed to turn over the documents by
March 1st, the Liskas filed a motion to compel discovery and a motion for
sanctions. Judge Pocan heard the motion on July 26, 2021, and he granted Bublitz
an additional thirty days to respond to the Liskas’ discovery and to provide a list
of witnesses and an itemized statement of damages. In granting Bublitz an
additional thirty days, he also warned her that complying was serious and warned
Bublitz that “if you don’t comply by that point, the [c]ourt is likely going to grant
some or all of what [the Liskas’ counsel] is seeking in part because we’ve given
you this additional chance.” Bublitz responded, “I understand, your honor. And
thank you.”
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No. 2022AP64
¶10 Nonetheless, on September 14, 2021, the Liskas filed a second
motion for sanctions when Bublitz failed to comply with Judge Pocan’s July 26,
2021 orders granting Bublitz another thirty days to respond to discovery and
provide a list of witnesses and itemized statement of damages. Judge Sosnay
heard the motion on September 29, 2021.
¶11 At the hearing, Bublitz indicated that she had been having personal
health issues, her children were having health issues, and she was struggling with
homelessness. She stated that “putting together an accounting was an extreme
task” and that “the burden has fallen upon me under extreme circumstances of
homelessness, lack of internet connectivity.” Judge Sosnay recognized that this
case was first filed in 2019, that there were previous motions to compel discovery,
previous orders from the court for Bublitz to comply, and previous failures on
Bublitz’s part to provide the information she claimed to have. The court then
acknowledged that Bublitz had been warned on several occasions in the past that
non-compliance could result in sanctions. Judge Sosnay continued,
The record is clear of a blatant disregard of her part to
follow previous courts’ orders and deadlines. The court has
indicated, finds that she does so intentionally, and I do find
that her conduct has been egregious. The court does not
take that lightly. I’ve examined the record carefully[.]
Judge Sosnay then announced that he was “going to impose the sanction of
dismissing [Bublitz’s] counterclaims and entering a default judgment.”
¶12 Judge Sosnay subsequently issued a written order on November 30,
2021, titled “Order on [Liskas’] Motion for Sanctions for [Bublitz’s] Failure to
Comply with the Court’s July 26, 2021 Orders.” The court made findings of facts
and ordered a default judgment against Bublitz. Specifically, the court entered
judgment in favor of the Special Administrator in the amount of $132,203.13 “for
6
No. 2022AP64
damages due to the fraud committed by [Bublitz] while acting in a fiduciary
capacity and WIS. STAT. § 895.446”; judgment in favor of Rose in the amount of
$35,850 “for damages due to the fraud committed by [Bublitz] while acting in a
fiduciary capacity and WIS. STAT. § 895.446”; judicial conveyance of Frank’s car
to the Special Administrator and an order for Bublitz to return Frank’s car; costs of
the action; and reasonable attorney fees. The court also denied Bublitz’s
remaining counterclaims and dismissed them with prejudice.
¶13 The Liskas’ counsel subsequently filed an affidavit of costs and
reasonable attorney’s fees, which included costs totaling $70 and attorney fees in
the amount of $12,690. The circuit court then issued a written “Order for
Judgment” on January 5, 2022, which states that judgment may be entered against
Bublitz in favor of the Estate of Frank Liska in the amount of $291,295.88 6 and
judgment may be entered against Bublitz in favor of Rose in the amount of
$56,979.95.7 The order further provided that judgment may be entered against
Bublitz in favor of Legal Action of Wisconsin, Inc. in the amount of $12,760 for
costs and attorney’s fees.
¶14 The circuit court denied Bublitz’s attempts to “reopen” summary
judgment and “set aside” the sanctions, and Bublitz filed a notice of appeal on
January 13, 2022. Additional relevant facts will be set forth below as necessary.
6
This appears to be the combined total of the $159,092.75 awarded by Judge Conen and
the $132,203.13 awarded by Judge Sosnay to the Estate of Frank Liska.
7
This appears to be the combined total of the $21,129.95 awarded by Judge Conen and
the $35,850.00 awarded by Judge Sosnay to Rose Liska.
7
No. 2022AP64
DISCUSSION
¶15 On appeal, Bublitz first argues that “it was improper for [Judge
Conen] to enter a $181,000[8] partial summary judgment as a sanction because
[Bublitz’s] conduct was not egregious, and the harshness of this sanction was not
merited.” Second, Bublitz argues that “it was improper for [Judge Sosnay] to
enter an additional $168,053.13 judgment against Bublitz as a discovery sanction
because neither was this conduct egregious, nor the harshness of this sanction
merited.” We address each of Bublitz’s arguments below.
I. The circuit court properly granted Liskas’ motion
for partial summary judgment
A. Applicable Law
¶16 Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” WIS. STAT. § 802.08(2) (2021-
22).9 Affidavits in support of and in opposition to a motion for summary
judgment “shall be made on personal knowledge and shall set forth such
evidentiary facts as would be admissible in evidence.” Sec. 802.08(3). We review
a grant of summary judgment using the same standards the circuit court applied in
making its determination, and “accordingly, we benefit from, but need not give
8
We note that the actual amount of the partial summary judgment ordered by the circuit
court was $180,222.70.
9
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
8
No. 2022AP64
deference to, the analys[is] of the [circuit court].” See State Farm Mut.
Auto. Ins. Co. v. Langridge, 2004 WI 113, ¶12, 275 Wis. 2d 35, 683 N.W.2d 75.
B. The circuit court properly granted partial
summary judgment—not as a sanction
¶17 As noted above, Bublitz argues that the circuit court erroneously
granted partial summary judgment in favor of the Liskas as a sanction and that
“[t]he court then summarily entered judgment against Bublitz in the amount of
$181,000 without any finding her conduct was egregious, or that there was no
clear and justifiable excuse for her putative noncompliance.” She further argues
that “[t]o enter a default judgment, the [circuit] court must determine that the
noncomplying party’s conduct is egregious or in bad faith and without a clear and
justifiable excuse.”
¶18 We disagree that any finding of egregious conduct or clear and
justifiable excuse was necessary in this case. The circuit court granted summary
judgment because there “was no genuine issue as to any material fact” and the
Liskas were “entitled to a judgment as a matter of law,” see WIS. STAT.
§ 802.08(2), and contrary to Bublitz’s contention, the circuit court did not grant
summary judgment as a sanction. The record plainly reflects that the Liskas filed
a motion for partial summary judgment, Bublitz failed to file a response opposing
summary judgment, and the circuit court consequently granted the Liskas’ motion
for partial summary judgment because there was no issue of material fact given
that there was no response.
¶19 The Liskas filed a motion entitled, “Motion for Partial Summary
Judgment” on April 28, 2020, and argued that Bublitz breached her fiduciary duty
as POA by failing to provide an accounting and was, therefore, liable for
9
No. 2022AP64
conversion. See Alexopoulos v. Dakouras, 48 Wis. 2d 32, 40-42, 179 N.W.2d
836 (1970) (explaining that an agent has a fiduciary duty to keep accounts and
render an accounting “when called upon”); see also WIS. STAT. § 244.14 (listing
an agent’s duties). The Liskas further summarized what they believed Bublitz
failed to account for and attached to the supporting affidavit as exhibits were
copies of BMO Harris Bank account statements for Frank and Rose, Elan credit
card statements for Frank, and Chase Bank account statements for Rose related to
the time period that Bublitz acted as POA for both Frank and Rose.
¶20 As related to Frank’s funds, the Liskas maintained that Bublitz
withdrew over $71,440 from Frank’s BMO Harris checking account and cashed
out his BMO Harris Certificates of Deposits worth $122,310.75 prior to their
maturity dates, for a total of $193,750.75. The brief then itemized the
disbursements that were still unaccounted for at the time of the motion for partial
summary judgment from Frank’s Elan credit card, his BMO Harris Certificates of
Deposit, withdrawals from Frank’s BMO Harris savings account, and his BMO
Harris checking account. The Liskas then asserted that the records provided
showed that Bublitz did not account for $159,092.75 in disbursements from
Frank’s funds.
¶21 As related to Rose’s funds, the Liskas asserted that during the six
months that Bublitz acted as Rose’s POA, she cashed out Rose’s Chase Bank
Certificate of Deposit for $11,161 with a check payable to Bublitz, withdrew
$4,334.60 from Rose’s BMO Harris savings account and closed the account, and
withdrew $5,634.35 from Rose’s Chase Bank account for a total of $21,129.95 for
which Bublitz did not account.
10
No. 2022AP64
¶22 At the hearing addressing the motion for summary judgment, Judge
Conen noted that Bublitz filed several documents at 4 a.m. that morning, but that
he did not look at what Bublitz had filed because it was untimely. Bublitz orally
asked for an extension of time to respond, and Judge Conen stated, “You’ve
known that for the last year and a half that I’ve been dealing with you. I have
given you all kinds of breaks across the board to allow you to get this done and all
you have done is continued to delay, delay, delay, delay.” Bublitz began to argue
why it was so difficult to make the accounting, but Judge Conen responded that he
was addressing “the issue of the fact that [Bublitz] failed to respond [to the
summary judgment motion] timely.” Bublitz admitted, “Okay. I failed to
respond.”10 Consequently, at the end of the hearing, Judge Conen stated, “There’s
been no response, and the [c]ourt will find that there is no material issue of fact
here and the [c]ourt will grant summary judgment to the plaintiff Rose in the
amount of $21,129.95 and to the estate of Frank Liska in the amount of
$159,092.75.”
¶23 To create an issue of material fact precluding summary judgment,
Bublitz was required to “set forth such evidentiary facts as would be admissible in
evidence.” See WIS. STAT. § 802.08(3). “The party opposing summary judgment
‘may not rest upon the mere allegations or denials of the pleadings’ but instead,
through affidavits or otherwise, ‘must set forth specific facts showing that there is
10
Bublitz makes a tortured argument that because Judge Conen denied her oral request
for an extension of time to respond to the motion for summary judgment on the day of the hearing
that Judge Conen ordered judgment against Bublitz as a sanction. However, Bublitz admitted that
she did not respond to the motion, and therefore, the record shows there were no material issues
of fact. Bublitz cites no authority to support her argument that a court must find that the opposing
party’s “conduct was egregious or that there was no clear and justifiable excuse for her putative
noncompliance.” Because the arguments are undeveloped and lack any legal authority, we do not
address them. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).
11
No. 2022AP64
a genuine issue for trial.’” Racine Cnty. v. Oracular Milwaukee, Inc., 2010 WI
25, ¶26, 323 Wis. 2d 682, 781 N.W.2d 88 (quoting WIS. STAT. § 802.08(3)). By
admittedly failing to respond in any form, Bublitz failed to create any issue of
material fact precluding summary judgment.11
¶24 In sum, we conclude that the record shows there is no material issue
of fact that Bublitz failed to fulfill her fiduciary duties as Frank’s and Rose’s POA
to keep and render accounts and, when called upon, to render an accounting.
Thus, we conclude that the Liskas are entitled to partial summary judgment in the
amounts granted by the circuit court. We further conclude that the record shows
that the circuit court did not grant the partial summary judgment as a sanction
against Bublitz for failing to comply with discovery or orders of the court, and we
reject Bublitz’s arguments to that effect.
II. The Circuit Court reasonably exercised its
discretion in determining that sanctions against
Bublitz should be imposed
A. Applicable law
¶25 We review the circuit court’s grant of the Liskas’ motions for
sanctions and default judgment dismissing Bublitz’s counterclaims for an
11
We note that in her brief, Bublitz stated that “[t]he motion for partial summary
judgment also gave short shrift to the eleven exhibits Bublitz had filed on January 6, 2020, with a
detailed accounting of the expenses … and then the dozens of additional exhibits she had filed on
March 10, 2020.” However, Bublitz did not explain what those documents contained and more
importantly how they related to the itemized statement of amounts withdrawn from Frank’s and
Rose’s accounts. Moreover, there is nothing in the record that reflects that these documents were
attached to any affidavit, and Bublitz does not assert what they were or explain why they were
filed. It appears that Bublitz was just randomly filing these documents to show that she was
complying with discovery demands. In fact, after Bublitz continued to file discovery documents
with the court, Judge Grady warned Bublitz on February 1, 2021, in regards to turning over the
documents in the tote that “you cannot, cannot electronically or otherwise file a massive amount
of receipts with this court.”
12
No. 2022AP64
erroneous exercise of discretion. In reviewing a circuit court’s exercise of
discretion, this court’s inquiry is not whether we would have done the same thing
if we were sitting as a circuit court judge. See Industrial Roofing Servs., Inc. v.
Marquardt, 2007 WI 19, ¶40, 299 Wis. 2d 81, 726 N.W.2d 898. Rather, we
uphold the circuit court’s decision “if the circuit court has examined the relevant
facts, applied a proper standard of law, and, using a demonstrated rational process,
reached a conclusion that a reasonable judge could reach.” Id. “The decision to
impose sanctions and the decision of which sanctions to impose, including
dismissing an action with prejudice, are within a circuit court’s discretion.” Id.¶26 “Although dismissing an action with prejudice is within a circuit
court’s discretion, it is a particularly harsh sanction. It is therefore appropriate
only in limited circumstances.” Id., ¶42. The Marquardt court explained that
“[s]pecifically, WIS. STAT. § 804.12(2)(a) and § 805.03 limit the sanctions that
circuit courts may impose for failure to prosecute and for failure to comply with
court orders to those that are ‘just.’” Id., ¶43. The court further stated that
“Wisconsin courts have interpreted this limitation to mean that dismissal requires
that the non-complying party has acted egregiously or in bad faith.” Id. “Failure
to comply with circuit court scheduling and discovery orders without clear and
justifiable excuse is egregious conduct.” Id. (citations omitted). The court also
stated that “[w]here the circuit court finds that failures to respond to discovery and
follow court orders are ‘extreme, substantial, and persistent’ it may dismiss the
action with prejudice on the grounds that the conduct is egregious.” Id. (citation
omitted).
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No. 2022AP64
B. Analysis of the Circuit Court’s Exercise of
Discretion
¶27 Turning to this case, we conclude that the circuit court did not
erroneously exercise its discretion when it imposed the sanctions of dismissing
Bublitz’s counterclaims and granting default judgment because it examined the
relevant facts and applied the proper standard of law to reach the conclusion that
Bublitz’s conduct was “blatant, intentional, egregious, unfair, and costly to [the
Liskas].”12 However, we further conclude that the record lacks an explanation of
the dollar amounts the circuit court awarded as part of the sanction, and therefore,
we remand with instructions to provide clarification regarding the dollar amounts
in the circuit court’s order.
Sanctions of default judgment for the Liskas’ claims
and dismissal of Bublitz’s counterclaims
¶28 We first address whether the circuit court reasonably exercised its
discretion in granting default judgment on liability for the Liskas’ claims as a
sanction and dismissing Bublitz’s counterclaims based on Bublitz’s conduct in
failing to comply with discovery demands and with court orders, and we conclude
that the circuit court reasonably exercised its discretion in doing so.
¶29 Over a period of time spanning two and one half years, from
March 29, 2019, when the complaint was filed, to September 29, 2021, when
Judge Sosnay granted the Liskas’ motion for sanctions, four judges—Judge
Conen, Judge Grady, Judge Pocan, and Judge Sosnay—all presided over this case.
Each of the judges had to deal with Bublitz’s failure to comply with discovery
12
On appeal, Bublitz states that she is not appealing the dismissal of her counterclaims.
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No. 2022AP64
demands and court orders regarding discovery and Bublitz’s repeated requests for
extensions to produce the documentation for the accounting.
¶30 In reaching this conclusion, we note that the most compelling factor
in deciding whether Bublitz acted egregiously or in bad faith is the fact that, from
the inception of this case in 2019, Bublitz had all of the documents that were
necessary to comply with the discovery demands and the courts’ orders in a five-
gallon Rubbermaid storage tote. Yet, she did not share that fact with the Liskas or
the court until years later during the scheduling conference before Judge Grady on
February 1, 2021, and as of September 29, 2021, she had yet to produce the
documents from this tote after making repeated requests for more time to do so.13
¶31 With that background as a starting point, we provide a more detailed
account of Bublitz’s conduct throughout the course of this case. Here, we note
that from the beginning in 2018, Bublitz failed to respond to demand letters from
the Liskas’ counsel, and the Liskas were forced to file a complaint on March 26,
2019. At the first court appearance on November 4, 2019, the court ordered that
Bublitz complete the accounting by December 16, 2019. Yet, at the next status
conference on January 9, 2020, Bublitz requested a sixty-day adjournment because
she had more paperwork to produce to the Liskas—the court granted the request,
and the matter was adjourned to March 10, 2020. However, Bublitz did not
appear on March 10, 2020, and the matter was set for a hearing on “summary
judgment” for May 20, 2020.
13
We recognize that Bublitz filed several documents with the court over the course of
these proceedings seemingly in an attempt to comply with her responsibility to provide an
accounting. However, the documents provided over the course of the proceedings failed to
satisfy Bublitz’s responsibility to provide an accounting.
15
No. 2022AP64
¶32 Then, at the hearing on the Liskas’ motion for partial summary
judgment, Bublitz asked for yet another extension to produce documentation.
Judge Conen responded, “You’ve known that for the last year and a half that I’ve
been dealing with you. I have given you … all kinds of breaks across the board to
allow you to get this done and all you have done is continued to delay, delay,
delay, delay.” He further stated that “[t]his is not the first time. I have tried to get
you to provide documentation over the last year and you’ve provided some and we
just have not moved this matter along.”
¶33 The parties next appeared on July 29, 2020, following which Judge
Conen issued a scheduling order providing that “Discovery shall be completed by
all parties no later than September 30, 2020.”
¶34 The parties then appeared before Judge Grady on January 13, 2021,
to resolve several outstanding motions, and the court addressed Bublitz’s
continuing failure to produce documentation. In so doing, it was at this hearing
that Bublitz first alleged that she had all the relevant documents in a five-gallon
Rubbermaid tote and that she would have FedEx scan the documents and provide
them to the Liskas. Judge Grady stated:
So my concern—and, Ms. Bublitz, this is the issue that I
know Judge Conen at least dealt with to a certain extent in
this court—which is every time there’s a hearing, there is a
new hesitation or a new request for time. So if you were
aware that you were in possession of all of these documents
—and you’re aware because [the Liskas’ counsel] has
repeatedly asked for things to be turned over and for
discovery to either stop or complete because there has to be
an end[.]
Despite concern over the repeated requests for extensions, Judge Grady ultimately
granted Bublitz yet another extension to March 1st.
16
No. 2022AP64
¶35 The case was then reassigned to Judge Pocan and set for a status
conference on June 23, 2021. However, Bublitz again failed to appear, and the
case was set for a motion hearing and a status conference on July 26, 2021.
¶36 In the meantime, on July 12, 2021, the Liskas filed a motion to
compel discovery and a motion for sanctions for Bublitz’s failure to comply with
the court’s previous order. Thus, at the hearing on July 26, 2021, Judge Pocan
asked Bublitz when she would be able to have full and complete responses to the
Liskas’ counsel. Bublitz stated that she wanted to have counsel in the matter.
Judge Pocan responded that “[t]his [case] has been pending since March [2019] so
over two years. So, when you indicate that you want a chance to obtain counsel,
certainly obtain counsel. But that’s not going to delay the discovery in this matter.
Too much time has gone on.” Nevertheless, Judge Pocan said that he would give
Bublitz another thirty days to produce the documentation, although he also warned
Bublitz that complying with the order was serious and “if you don’t comply by
that point, the [c]ourt is likely going to grant some or all of what [the Liskas’
counsel] is seeking in part because we’ve given you this additional chance.”
Bublitz responded, “I understand, your honor. And thank you.”
¶37 On September 14, 2021, the Liskas filed a motion for sanctions for
Bublitz’s failure to comply with Judge Pocan’s July 26, 2021 orders. In the
supporting affidavit, the Liskas’ counsel stated that Bublitz failed to provide any
response to the Liskas’ April 2, 2021 discovery demand and failed to provide her
witness list and damage itemization by August 25, 2021.
¶38 At the start of the hearing on September 29, 2021, addressing the
Liskas’ motion for sanctions, Judge Sosnay told Bublitz that “Judge Pocan
previously ruled on this and set it over for a hearing on today’s date for sanctions.”
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No. 2022AP64
Liskas’ counsel then summarized the history of the case regarding Bublitz’s
history of not producing the discovery and requesting extensions that were
granted, and court orders that were not complied with. As to Judge Pocan’s order
on July 26, 2021, the court stated that August 26, 2021, came and went and
Bublitz did not file any of the documents that Judge Pocan ordered her to file, nor
did she produce a complete response to discovery requests.
¶39 Bublitz then told Judge Sosnay about her family health problems and
her personal health issues. She stated that “putting together an accounting was an
extreme task” and that “the burden has fallen upon me under extreme
circumstances of homelessness, lack of internet connectivity.” She also told the
court that she was not being disobedient—that “the workload, while maintaining
two children who reside separately from me, 40 miles from me and 40 miles apart
from each other, it has been quite extreme.”
¶40 Judge Sosnay then noted that the case was filed in 2019 and had
been heard by Judges Conen, Grady, and Pocan. He stated that Judge Pocan
addressed the status of the motion to compel which was initially brought up by
Liskas’ counsel in April 2021. He then stated Judge Pocan ordered that Bublitz
“produce the discovery and the records on or before August [2021]. [Bublitz] was
warned of her failure to do so. The court notes that she now is telling the court
that she has serious health problems, and that’s why she did not produce these
records as ordered.” The court stated:
The court obviously takes into account and is not
insensitive to someone being ill. However, I also have to
look at the credibility of this and the extent to which it was
a basis upon which she could not comply with the court
order. I would note that, most importantly, that [Bublitz]
appears to be intelligent, articulate. She obviously has filed
things when necessary to set forth her position. Yet, since
July 26th, [2021,] and certainly after August 25th, [2021,]
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No. 2022AP64
she never notified the court, asked for a remedy or relief,
advised the court and counsel that she had additional health
problems, and she never requested additional relief from
the court. Nor did she ask for an adjournment.
On today’s date the court received some filing from
[Bublitz], which is not timely, it does not appear to be
responsive, and the court notes that [Bublitz’s] actions have
been blatant, has delayed the proceedings, have been
extremely unfair and costly, and they have been at times
intentional, which is evidenced by the fact that she clearly
did not file the information ordered by Judge Pocan after a
period of time on August 25th. In other words, this was not
something that she was told to do in a short period of time.
She was given quite a bit of time over a very lengthy
period.
Judge Sosnay then went on to say:
[Bublitz] is pro se and the court is sensitive to that and
takes that into consideration. However, the court looks at
her overall conduct and her actions in this case, and the
court notes that despite being pro se, she is still obligated to
follow court orders, particularly explicit ones and important
ones that can result in severe consequences. I’m referring
to Judge Pocan’s July 26, 2021, order. She failed to
comply with that.
The record is clear of a blatant disregard of her part to
follow previous courts’ orders and deadlines. The court has
indicated, finds that she does so intentionally, and I do find
that her conduct has been egregious. The court does not
take that lightly. I’ve examined the record carefully, and
any-body reviewing this record I believe would come to the
same conclusion.
¶41 The circuit court then announced that it was “going to impose the
sanctions of dismissing [Bublitz’s] counterclaims and entering a default
judgment.” Judge Sosnay then issued a corresponding written order dated
November 30, 2021, findings of fact, conclusions of law, and judgment.
¶42 As demonstrated by the foregoing, Bublitz engaged in a persistent
pattern of avoidance, delay, and disregard of discovery orders. See Marquardt,
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No. 2022AP64
299 Wis. 2d 81, ¶43. Although Bublitz admitted that she had all the documents
necessary to comply with the Liskas’ demand for an accounting, discovery
demands, and the courts’ orders in her possession as of October 3, 2018, when
Frank and Rose first made their demand for an accounting, as of the hearing
before Judge Sosnay on September 29, 2021, she still had not complied with the
courts’ orders—a period of almost three years.
¶43 In further explaining his decision in response to a motion for
reconsideration from Bublitz, Judge Sosnay considered Bublitz’s persistent pattern
of avoidance, delay, and disregard of the circuit court’s discovery orders. He
stated that “[t]here is a history of non-compliance here.” He noted that “this is not
a situation that has arisen recently or something that the court notes was done
where things weren’t followed just once.” He also stated that “[t]his case began
with Judge Conen. He made rulings on it after delays were made.”
¶44 Judge Sosnay also pointed out that although Judge Grady had
explicitly ordered Bublitz to produce the documents—that she apparently had all
along—to the Liskas by March 1, 2021, Bublitz did not. He further noted that
even then “Judge Pocan, the third judge, allowed [Bublitz], extensions certainly
giving her the opportunity to comply with [Judge Grady’s] order.” Judge Sosnay
found that “[t]here is a history of non-compliance here … the court found the
conduct over the course of this case, including the more recent conduct since June
of this year, to be egregious.” He went on to say that “but if the court would not
have done so [ordered the sanctions], it would have made these orders
meaningless. It would have excused [Bublitz] for no really valid reason to bring
about this delay.” He further said that “[a]nd even as evidenced by her filing
today, the defendant continues to pursue this course of conduct.” He also stated
that “[Bublitz] only wishes to file things at the last minute as a last ditch effort to
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No. 2022AP64
obviously take the position that she is complying.” Further, he stated that
“[Bublitz] obviously has filed things when necessary to set forth her position.”
¶45 We agree with Judge Sosnay’s conclusion that the record reflects
that Bublitz’s “actions have been blatant, [have] delayed the proceedings, have
been extremely unfair and costly, and they have been at times intentional.” We
also agree with his conclusions that “[t]he record is clear of a blatant disregard on
[Bublitz’s] part to follow previous courts’ orders and deadlines” and “that she does
so intentionally.” Therefore, we conclude that the circuit court reasonably
exercised its discretion in this case when it entered default judgment on the
Liskas’ claims and dismissed Bublitz’s counterclaims with prejudice as a sanction
for Bublitz’s persistent and pervasive failure to comply that has caused this case to
languish for years in the circuit court.
Monetary sanctions imposed
¶46 Nevertheless, as previously noted, we also conclude that based on
the record before us, we cannot determine how the circuit court determined the
amount of damages it awarded, and we remand for clarification of the $132,203.13
and $35,850 that were awarded.
¶47 The circuit court’s written order from November 30, 2021, states
that the judgment is “due to the fraud committed by [Bublitz] while acting in a
fiduciary capacity and WIS. STAT. § 895.446” for both the estate and Rose and
then it provides a dollar amount for each. However, the Liskas’ motion for
sanctions does not include any specific dollar amounts. Rather, the motion
requested that the court impose sanctions against Bublitz, including, but not
limited to: (1) grant a default judgment against Bublitz; (2) limit or prohibit the
witnesses, evidence and/or exhibits Bublitz can present at trial; (3) strike any of
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No. 2022AP64
Bublitz’s pleadings or parts of pleadings, which she did not provide in response to
the Liskas’ April 20, 2021, interrogatories and requests for production of
documents; (4) enter an order that the facts that involve matters subject to the
discovery shall be taken to be established for the purposes of the action in
accordance with the Liskas’ claims; (5) an award of reasonable attorney fees for
bringing [the] motion; and (6) any other relief the court deems necessary.
¶48 Moreover, during the hearing on the motion for sanctions on
September 29, 2021, the Liskas’ counsel did not argue for any dollar amount as
damages for any of their claims if the court were to grant default judgment as a
sanction. Furthermore, when rendering its oral ruling on the motion, the circuit
court did not express any dollar amounts that it was awarding and how the
amounts were to be determined. The court merely stated, “The court, accordingly,
is going to impose the sanction of dismissing [Bublitz’s] counterclaims and
entering default judgment.” It then directed counsel to “prepare an order
consistent with that.”
¶49 The Liskas’ counsel submitted a proposed order on September 29,
2021, which was signed by the court on November 30, 2021. As noted above, on
October 1, 2021, Bublitz filed a “notice of motion [and] motion to set aside
sanctions dismissing [Bublitz] counterclaims [and] also, notice [and] motion to
revise current scheduling order.” On October 21, 2021, she also filed a “notice of
motion and motion to reopen partial summary judgment, judgment for no
accounting reimbursement, [the Liskas’] motion for discovery, [and] order for
sanctions dismissing [Bublitz] counterclaims” and various letters to the court and
documents. The court heard the motions on November 12, 2021, and orally
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No. 2022AP64
denied them.14 Relevant to this appeal, the circuit court did not mention the dollar
amounts that the court awarded in its oral ruling on September 29, 2021, nor were
the amounts awarded discussed at all.
¶50 As a part of the court’s order dated November 30, 2021, the court
awarded “[r]easonable attorney fees to be determined upon submission of an
Affidavit of Fees by [the Liskas’ counsel].” On December 28, 2021, counsel
submitted an affidavit reflecting costs of $70 and attorney fees of $12,690 for
Legal Action of Wisconsin, Inc. and a proposed order. The circuit court filed its
order on January 5, 2022. The court’s order appears to have combined the
amounts awarded by Judge Conen from his July 17, 2020 order for partial
summary judgment and Judge Sosnay’s order dated November 30, 2021, plus the
additional $12,760 for costs and attorney fees. However, the January 5, 2022
order provides no more explanation of how the court determined the amounts
awarded to the Liskas’ for their claims as a sanction than the court’s
November 30, 2021 order.
¶51 Consequently, we also conclude that because we cannot discern how
the circuit court determined the amounts that it awarded as a sanction against
Bublitz that the court erroneously exercised its discretion in this regard. A court
erroneously exercised its discretion when it “fail[s] to set forth the reasoning
underlying its decision.” Siva Trucking Leasing, Inc. v. Kurman Distribs., 166
Wis. 2d 58, 72, 479 N.W.2d. 542 (Ct. App. 1991). Thus, we reverse the circuit
court’s November 30, 2021 order and remand with directions that the circuit court
14
On appeal, Bublitz does not address this motion and makes no reference to WIS. STAT.
§ 806.07 or the court’s order. We, therefore, consider any related argument(s) abandoned. See
A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998).
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No. 2022AP64
set forth the reasons underlying its award of damages as a result of the default
judgment and any amount awarded as a financial sanction.
By the Court.—Orders affirmed in part, reversed in part, and
remanded with directions.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
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