Leonard Pozner v. James Fetzer

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.
September 14, 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. 2022AP1751 Cir. Ct. No. 2018CV3122
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
LEONARD POZNER,
PLAINTIFF-RESPONDENT,
V.
JAMES FETZER,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Dane County:
FRANK D. REMINGTON, Judge. Affirmed.
Before Kloppenburg, P.J., Blanchard, 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. § 809.23(3).
¶1 PER CURIAM. James Fetzer, pro se, challenges the circuit court’s
grant of Leonard Pozner’s motion for a turnover of Fetzer’s personal property to
No. 2022AP1751
satisfy a portion of a judgment that Pozner obtained against Fetzer in a defamation
action.1 Fetzer specifically appeals the court’s denial of a reconsideration motion
that he filed objecting to the turnover order. In opposing Pozner’s turnover
motion, Fetzer argued that he does not own the property at issue, the property is
not subject to execution, and the turnover motion is an improper vehicle given
Pozner’s “goals” for the property. In the reconsideration motion, Fetzer argued
that the circuit court should have: appointed a receiver instead of, or perhaps in
conjunction with, a turnover order; determined that Pozner is judicially estopped
from obtaining a turnover order; or determined that Pozner’s motion sought an
abuse of process. We affirm.
BACKGROUND
¶2 Some pertinent context is reflected in Pozner v. Fetzer,
Nos. 2020AP121, 2020AP1570, unpublished slip op. (WI App March 18, 2021)
(“Pozner I”), but it is not necessary to repeat much of that here.
¶3 In brief, Pozner pursued a defamation claim against Fetzer in 2018
and this resulted in a jury award of $450,000. Id., ¶¶1, 6. The defamation claim is
based on statements that Fetzer published on the internet concerning a copy of a
death certificate for Pozner’s son—who was killed in the 2012 mass shooting at
Sandy Hook Elementary School in Connecticut—asserting that the death
certificate is a “fabrication.” Id., ¶¶1, 4. After the circuit court granted partial
1
A judgment creditor typically must take steps in order to enforce a judgment with
regard to a judgment debtor’s tangible or intangible personal property. Associated Bank N.A. v.
Collier, 2014 WI 62, ¶23, 355 Wis. 2d 343, 852 N.W.2d 443 (citing Robert A. Pasch,
12 WISCONSIN PRACTICE SERIES: WISCONSIN COLLECTION LAW § 14:1, at 286 (2d ed. 2006)).
“Execution, garnishment and turnover orders applying property in satisfaction of a judgment are
all methods of levying the judgment debtor’s personal property.” Id.
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summary judgment to Pozner, determining that Fetzer’s statements are
defamatory, damages were tried to a jury. Id., ¶1. We affirmed the circuit court’s
rulings that Fetzer’s statements are defamatory and that his motions for a new trial
should not be granted. Id., ¶2.2
¶4 In March 2020, as part of Pozner’s attempts to satisfy the judgment,
his counsel conducted a joint supplemental examination of Fetzer and his spouse,
pursuant to WIS. STAT. ch. 816 (“Remedies Supplementary to Execution”) (2021-
22).3 One topic of the supplemental proceedings involved books written in whole
or part by Fetzer and any associated royalties and copyrights.
¶5 In April 2022, as part of Pozner’s continuing efforts to satisfy the
judgment, he filed with the circuit court the focus of this appeal: a motion for a
turnover of property as a judgment creditor. Pozner identified four editions of a
book, “Nobody Died at Sandy Hook,” and four website domains, all associated
with Fetzer. An affidavit filed by Pozner’s counsel avers that these are works not
exempt from execution that “may be applied to satisfy” the judgment. See WIS.
STAT. § 816.08 (“Property to be applied to judgment”).
¶6 In opposing the turnover motion, Fetzer argued that: Fetzer “does
not own the property that [Pozner] requests he turn over”; the intellectual property
2
Our rulings in Pozner I affirming both the circuit court’s partial summary judgment
decision and its denial of Fetzer’s motions for a new trial are now law of the case and we ignore
various attempts Fetzer makes in this appeal to relitigate those issues. See Laatsch v. Derzon,
2018 WI App 10, ¶40, 380 Wis. 2d 108, 908 N.W.2d 471 (“[A] decision on a legal issue by an
appellate court establishes the law of the case, which must be followed in all subsequent
proceedings in the trial court or on later appeal.” (alteration in Laatsch)).
3
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
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No. 2022AP1751
at issue “is not subject to execution”; and Pozner’s turnover motion “is an
improper legal mechanism to achieve” Pozner’s “goals.”
¶7 Pozner responded with arguments that: Fetzer owns the copyrights
to the books under federal law; “[m]odern federal law does not exempt” Fetzer’s
copyrights from execution; the copyrights are intangible personal property subject
to execution; the books have value; and, even if Fetzer does not own the website
domain names, Fetzer should “be ordered to turn over his ownership in the
copyrights to all” content. Pozner argued in the alternative that, if the circuit court
were to determine that someone other than Fetzer “has an adverse interest in the
[b]ooks,” the court could consider “appoint[ing] a supplemental receiver over the
[b]ooks to liquidate the property.”
¶8 At a hearing in June 2022, the circuit court explained that it had read
the parties’ briefing carefully and that it planned to rule on the motion from the
bench. Fetzer, then represented by counsel, did not object to this approach.
¶9 The circuit court asked counsel for Pozner the following question: If
the turnover motion were granted, what offset or credit should Fetzer receive
against the outstanding balance of the judgment? Counsel responded that, based
on Fetzer’s testimony that he had received $25,000 in royalties from sales of one
edition of the book, that amount should be multiplied by the four editions, for a
total offset of $100,000.4
4
Pozner’s counsel gave no specific estimate for the value of the website domains, but
later in the hearing said, “We think that there’s at least some value associated with” blog entries
on the website domains. A reasonable interpretation of counsel’s remarks as a whole is that
$100,000 was a high-end estimate for the value of the four book editions and that any separate
monetary value in the domains could be considered covered by that total.
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¶10 Fetzer declined to stipulate to a valuation of $100,000. At a later
point in the hearing, Fetzer at least briefly took the position that “there is no value
in any of these assets,” but this position was confusingly and inconsistently
presented at the hearing. At the same time, however, this assertion was consistent
with at least one statement in Fetzer’s pre-hearing filing: that Pozner “attempts to
gain control of valueless assets.”5
¶11 The circuit court rejected Fetzer’s argument that he does not own the
property sought by Pozner to satisfy the judgment, for two reasons. First, the
court appeared to accept Pozner’s argument that, under federal copyright law, a
copyright “resides in the person who compiled [a] collective work,” which defeats
Fetzer’s suggestion that he lacked an ownership interest in the books because its
multiple editions had multiple contributors, in light of the uncontested fact that
Fetzer was the compiler. Second, the court analogized the situation to one in
which a purported or partial owner of real estate uses a quit claim deed to transfer
to a second individual any and all interest the first individual has in the real estate,
without anyone purporting to establish the extent of the first individual’s
transferred ownership rights. See WIS. STAT. § 706.10(4) (“A quitclaim deed shall
pass all of the interest in or appurtenant to the land described which the grantor
could lawfully convey, but shall not warrant or imply the existence, quantity or
quality of any such interest.”). The court’s reasoning was that it did not matter
what degree of ownership interest Fetzer had or did not have in this property,
because the turnover order would merely permit Pozner to take whatever
5
Counsel for Fetzer made an additional suggestion at this hearing that Fetzer is entitled
to a statutory exemption from execution related to “business and farm property,” see WIS. STAT.
§ 815.18(3)(b), but counsel did not develop or pursue the point, and in any case on appeal Fetzer
now disclaims any exemption argument. We discuss this topic no further.
5
No. 2022AP1751
ownership interest Fetzer had—formally valued at $100,000, but perhaps having
an actual value somewhat or a great deal less than that—with Fetzer being no
worse off if it were of little or no value.
¶12 At one point during the hearing, counsel for Fetzer said that “this
may be a set of circumstances” in which “appointment of a receiver would be
appropriate to untangle some of the valuation and specifics of the property behind
this and other owners.” Consistent with the alternative proposal contained in
Pozner’s pre-hearing briefing, counsel for Pozner said that if the circuit court
wanted to appoint a receiver “to satisfy the judgment through a sale,” then Pozner
“can certainly file a motion” for appointment of a receiver. The court ruled at the
end of the hearing that, “under the circumstances [and] considering the equities
and the position of the parties[,]” it is not “appropriate to appoint a receiver.”
“[T]he expenditure and additional financial resources in this case at this time
under these circumstances do not warrant it.”
¶13 Focusing on what Pozner might do with the property following
turnover, counsel for Fetzer said, “I can’t imagine that [Pozner] would ever …
voluntarily allow the sale of” the books, because Pozner’s position throughout the
case to that point had been that statements in the books are defamatory to Pozner.
In response, the circuit court questioned whether it could matter for purposes of a
turnover hearing what the motive of a judgment creditor is in seeking turnover.
The court said, “The question is, is the property … subject to seizure or
attachment, and what is it worth? [How] would the motive [of the creditor] be
relevant?” Counsel did not respond with specific authority. Instead, counsel made
the following broad assertion: “I believe it’s just relevant from … a policy
perspective and legislative intent in writing [WIS. STAT.] Chapters 815 and 816 …
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No. 2022AP1751
[that the intent] is to [allow] collect[ion of] money for a judgment, not” to allow
“some other motive or even a nefarious motive.”
¶14 The circuit court further ruled that, given Fetzer’s apparent decision
not to stipulate to the $100,000 valuation by Pozner, Fetzer had a right to
challenge that valuation. See WIS. STAT. § 815.18(7) (addressing enforcement of
judgments by execution and stating, “The value of any property subject to
exemption under this section shall be determined by agreement of the parties or by
a commercially reasonable manner.”). The court said that if a commercially
reasonable appraisal were to determine that the property has no value—as Fetzer
at least at times asserted—“then Mr. Pozner will still have the asset[s], but the
setoff will be zero, or a dollar, a nominal value.”
¶15 The circuit court granted the turnover motion, “effective
immediately,” “after careful consideration of the written material” and of the
arguments made by counsel at the June 24 hearing. The court said that it was
“satisfied that there is a factual basis to support” Pozner’s assertion that Fetzer
“has some ownership interest in all the assets that are seized of some kind to some
degree.” Repeating its quit-claim analogy, the court said that its ruling establishes
that Pozner “now stands in the shoes of [Fetzer] and that [Pozner] possesses all the
rights, title and interest in the property to whatever degree they exist [and] were
formerly possessed by” Fetzer.
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No. 2022AP1751
¶16 The circuit court set a schedule for the parties to submit positions on
the primary remaining issue: valuation.6 The court gave Fetzer 10 days to notify
the court in writing whether he accepted Pozner’s valuation of $100,000. If not,
then Fetzer would have 60 days beyond that to submit “an evidentiary basis,
namely, an appraisal by an expert, as to what [Fetzer] believes the property is
worth,” followed by Pozner’s additional submissions on the valuation topic.
Anticipating that it would receive appraisals from the parties, the court planned to
issue a written decision or else schedule a “separate hearing on the valuation.”
¶17 On July 5, 2022, Fetzer, now representing himself, submitted a letter
to the circuit court stating that he contested Pozner’s $100,000 valuation and that
he planned to submit an expert’s appraisal of the value of the property. As
referenced below, Fetzer never submitted such an appraisal to the court.
¶18 On July 8, 2022, the circuit court confirmed its oral ruling with a
written order granting Pozner’s motion for turnover, stating that, “[e]ffective as of
June 24, 2022,” Pozner’s “interest in the copyright and title of” the books and
website domain content “is transferred to” Pozner. The order further set forth,
6
The court said at the June 24 hearing that it would reserve for later decision whether
“the setoff doesn’t apply as a matter of law.” As best we can discern this was a reference to the
following argument in the pre-hearing filing by Fetzer: “[T]he Wisconsin Legislature did not
contemplate the satisfaction of money judgments with anything other than either money or a
‘payment intangible,’” citing Attorney’s Title Guaranty Fund v. Town Bank, 2014 WI 63, 355
Wis. 2d 229, 850 N.W.2d 28. But, as discussed below, the court never explicitly returned to this
issue.
8
No. 2022AP1751
consistent with the court’s statements at the hearing, the schedule for the parties to
make submissions to resolve the valuation issue.7
¶19 On July 13, 2022, Fetzer, still representing himself, submitted to the
circuit court a document styled “Fetzer’s Motion for Reconsideration, Vacation &
Objection to Pozner’s Valuation of Property, & Damages for Abuse of Process,”
which we will refer to as “the reconsideration motion.” The reconsideration
motion contained the following arguments: Pozner is judicially estopped from
claiming that the books have any value to Pozner because Pozner “cannot now
claim” that Pozner will sell copies of the books that contain “material adjudged
defamatory to [Pozner] and the public memory of his son”; Pozner is also
judicially estopped from claiming that the website domain names have any value
to Pozner because Pozner has demonstrated that “his whole purpose is to remove
them from the public”; it would be “abuse of process” to allow Pozner to “take
worthless property to satisfy a money judgment” with the “ulterior motive” of
preventing anyone from publishing them. The reconsideration and valuation
motion requested as relief that the court: reconsider and vacate the turnover order;
set the value of the property at zero; and “[f]ind all elements of an abuse of
7
This order states that it “is a final order for purposes of appeal,” but this is not accurate.
It left unresolved the issues identified by the court: valuation of the property and Fetzer’s
argument that the setoff does not apply as a matter of law. See WIS. STAT. § 808.03(1) (a final
judgment or order “disposes of the entire matter in litigation as to one or more of the parties”).
The final judgment in this appeal was issued August 29, based on reasoning of the circuit court
explained at a hearing on August 17, as summarized in the text below. Under the rules that define
the content of appeals, Fetzer’s appeal from the August 29 order “brings before [this] court all
prior nonfinal judgments, orders and rulings adverse to [Fetzer] and favorable” to Pozner in the
case that were not previously appealed and ruled upon, including the rulings memorialized in the
July 8 order. See WIS. STAT. RULE § 809.10(4).
9
No. 2022AP1751
process” and “fine” Pozner the amount of Fetzer’s legal fees in connection with
the collection litigation.8
¶20 Pozner opposed the reconsideration motion, arguing in part that
Fetzer had failed to meet his burden to prevail on a motion to reconsider the
turnover order. See Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival
Popcorn Wagons, Ltd., 2004 WI App 129, ¶44, 275 Wis. 2d 397, 685 N.W.2d 853(a party moving for reconsideration must present either “newly discovered
evidence or establish a manifest error of law or fact”).
¶21 On August 17, 2022, the circuit court held a hearing on the
reconsideration motion and the valuation of the property. The court denied the
reconsideration motion, on the grounds that Fetzer failed to meet either of the
Koepsell’s requirements.
¶22 Turning to the valuation issue, the circuit court noted that Pozner
had failed to submit an appraisal of the value of the property, despite the court’s
invitation to do so. The court accepted Pozner’s submission of $100,000 as the
value to assign for purposes of partial satisfaction of the judgment against Fetzer.
The Court concluded that this would be “substantially higher than the fair market
value” of the property, but that this is not a problem because setting the value at
$100,000 provides Fetzer with a benefit in the reduction of the outstanding amount
owed on the judgment, which Fetzer could not reasonably complain about.
8
Fetzer also filed a motion to stay the turnover order pending U.S. Supreme Court
consideration of a petition for certiorari review, but that motion was denied by the circuit court,
and neither side bases an argument on that motion or its denial.
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No. 2022AP1751
¶23 The circuit court memorialized these rulings in an order dated
August 29, 2022.
DISCUSSION
¶24 Fetzer makes four arguments on appeal in challenging both the
results of the June 24 hearing and the denial of his motion for reconsideration.
First, he renews his argument that his intangible interest in the property cannot
legally set off any part of the judgment. Second, the circuit court should have
appointed a receiver instead of, or in conjunction with, granting the turnover order.
Third, Pozner is judicially estopped from obtaining a turnover order. Fourth,
Pozner’s turnover motion constitutes, or perhaps improperly resembles, the tort of
abuse of process. Notably, Fetzer does not now challenge the primary issue that
the court addressed and resolved at the August 17 hearing, namely, the value of
the property that the court had ordered turned over at the June 24 hearing.
¶25 Before addressing the four issues in turn, we note the following with
regard to our review of the circuit court’s denial of the reconsideration motion,
which is pertinent across issues. Our supreme court has recently summarized
pertinent legal standards, in part citing Koepsell’s:
[A] circuit court possesses inherent discretion to entertain
motions to reconsider “nonfinal” pre-trial rulings. To
succeed, a reconsideration movant must either present
“newly discovered evidence or establish a manifest error of
law or fact.”
Newly discovered evidence is not “new evidence
that could have been introduced at the original summary
judgment phase.” Similarly, a “manifest error” must be
more than disappointment or umbrage with the ruling; it
requires a heightened showing of “wholesale disregard,
misapplication, or failure to recognize controlling
precedent.” Simply stated, “a motion for reconsideration is
not a vehicle for making new arguments or submitting new
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No. 2022AP1751
evidentiary materials [that could have been submitted
earlier] after the court has decided a motion for summary
judgment.”
Bauer v. Wisconsin Energy Corp., 2022 WI 11, ¶¶13-14, 400 Wis. 2d 592, 970
N.W.2d 243 (footnote and quoted authority omitted).9
I. INTANGIBLE PROPERTY TO SET OFF JUDGMENT
¶26 Neither at the August 17 hearing nor in its final order did the circuit
court explicitly address the topic that it had said at the June 24 hearing it would be
reserving for later decision: whether “the setoff doesn’t apply as a matter of law”
under Attorney’s Title Guaranty Fund v. Town Bank, 2014 WI 63, 355 Wis. 2d
229, 850 N.W.2d 28. See supra n.6. As we now briefly explain, however,
Fetzer’s argument on appeal based on Attorney’s Title Guaranty Fund is
undeveloped.
¶27 Our supreme court in Attorney’s Title Guaranty Fund decided that
a debtor lawfully assigned potential proceeds from a legal claim of the debtor as
collateral for a contemporaneously incurred debt to a corporation. Id., ¶4. The
court also decided that the corporation was entitled to the proceeds of the debtor’s
legal claim because, at the moment when the debtor acquired the proceeds from
9
While Pozner’s motion for turnover granted by the circuit court at the June 24 hearing
was not technically framed as a motion for summary judgment, Fetzer does not dispute that the
procedural posture of the turnover motion and the way in which it was addressed by the parties
and the circuit court, both before and after June 24, render applicable here the reasoning in
Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd., 2004 WI
App 129, 275 Wis. 2d 397, 685 N.W.2d 853, and Bauer v. Wisconsin Energy Corp., 2022 WI
11, 400 Wis. 2d 592, 970 N.W.2d 243. This is what Pozner has consistently argued in the circuit
court and now on appeal, without objection by Fetzer, which concedes the point. See United
Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578(appellant’s failure to respond in reply brief to an argument made in response brief may be taken
as a concession).
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No. 2022AP1751
his claim, the corporation’s interest became superior to that of other creditors,
including a bank that had not yet levied the proceeds. Id. The supreme court had
occasion to distinguish between a legal “claim from which proceeds arise,” which
involves litigation choices and actions, and “the proceeds themselves,” which
amount to a “payment intangible,” in other words, “simply the right to be paid.”
Id., ¶23. The analogy Fetzer makes is that there is a distinction between
intellectual property (here, the books and website domains) and the proceeds
arising from that property (the right to be paid based on ownership of them).
Fetzer has identified a facially plausible analogy to one reference made by our
supreme court in an entirely different context. But he fails to attach that analogy
to a developed legal argument based on any Wisconsin statute or case law
showing that the circuit court erroneously exercised its discretion under the
circumstances the court was presented with at the June 24 hearing. To say more
on this issue would be to develop it beyond any supported argument offered by
Fetzer.
II. DECISION NOT TO APPOINT RECEIVER
¶28 Fetzer now identifies the following as one of his arguments:
“Pozner cannot lawfully take Fetzer’s intangible intellectual property directly
without assignment of rights and appointment of a receiver to manage or sell the
properties.”10 As he puts it at one point, “there must be an intermediary to perform
10
Fetzer is not clear about whether his argument is that the circuit court should have
appointed a receiver in lieu of ordering the requested turnover or instead that the court should
have appointed a receiver in conjunction with or as a supplement to a turnover order. At times he
suggests an argument that the court should have appointed a receiver for the purpose of property
valuation, but without being clear as to whether in his view the court could have determined that a
turnover is appropriate before appointing a receiver. In any case, in Fetzer’s favor, we assume
without deciding that he relies on both theories, but as the discussion in the text reflects it makes
no difference what his precise theory might be.
(continued)
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No. 2022AP1751
the conversion of [the property at issue] to money and given to the judgment
creditor.” We construe this to be an argument that the circuit court was obligated
to appoint a receiver in lieu of or in conjunction with granting a turnover order.
We reject this argument because Fetzer’s position has shifted dramatically over
time and because he fails to show that the court erroneously exercised its
discretion in deciding not to appoint a receiver based on the available information
and arguments of the parties when it made the decision. Further, we conclude that
he fails to show that the court should have reversed itself based on his motion for
reconsideration.
¶29 Under WIS. STAT. § 813.16, a circuit court “may” appoint a receiver
under the following potentially pertinent circumstances:
(1) On the application of either party, when the
applying party establishes an apparent right to or interest in
property which is the subject of the action and which is in
the possession of an adverse party, and the property or its
rents and profits are in danger of being lost or materially
impaired.
More generally, over the course of nearly 11 pages of briefing purportedly devoted to the
first issue, Fetzer makes many assertions and possibly intended arguments, some but not all of
which appear to reference the receiver issue that we identify in the text. Nearly four of those
pages are simply cut-and-paste passages from Fetzer’s written response to the motion for
turnover, which was filed before the June 24 hearing at which the circuit court specifically
addressed the receiver issue. We do not discern a developed argument in this section of Fetzer’s
briefing other than the issue that we address in the text, assuming without deciding that it is
properly developed. Fetzer otherwise fails to develop coherent, supported arguments that fit the
circumstances here. “A party must do more than simply toss a bunch of concepts into the air with
the hope that either the trial court or the opposing party will arrange them into viable and fact-
supported legal theories.” State v. Jackson, 229 Wis. 2d 328, 337, 600 N.W.2d 39 (Ct. App.
1999); State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (this court need
not attempt to develop for a party undeveloped legal arguments). We make some allowances for
the shortcomings of pro se parties, but “[w]e cannot serve as both advocate and judge,” Pettit,
171 Wis. 2d at 647, and we will not scour the record to attempt to discover viable, fact-supported
legal theories that could support a party’s position, see Jackson, 229 Wis. 2d at 337.
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No. 2022AP1751
(2) By the judgment, or after judgment, to carry it
into effect or to dispose of the property according to the
judgment.
¶30 Further, WIS. STAT. § 816.04 specifically grants circuit courts
discretionary authority to appoint a receiver to help a creditor satisfy a judgment.
As we have explained:
The receiver acts as a collection agent for the specific
judgment creditor he or she represents. “A receiver in aid
of execution is authorized to collect those assets revealed
by the examination of the debtor, take possession of them,
apply them to the satisfaction of the judgment, and return
the excess to the judgment debtor.” Whether to appoint a
receiver is discretionary. Our review of a trial court’s
discretionary decision is highly deferential. We search the
record for reasons to sustain the trial court’s decision.
Dawson v. Goldammer, 2006 WI App 158, ¶34, 295 Wis. 2d 728, 722 N.W.2d
106 (cited authority omitted).
¶31 In his briefing before the June 24 hearing, Fetzer did not apply for a
receiver, as an alternative to or in conjunction with a turnover order, as he could
have done under WIS. STAT. § 813.16. Further, his briefing on the issue was
ambivalent. He referred several times to the option of a receiver but never
affirmatively argued that the circuit court had to appoint a receiver in lieu of or in
conjunction with ordering turnover. Then, at the hearing, counsel for Fetzer made
a qualified suggestion that the court consider an appointment: “I think this may be
a set of circumstances where appointment of a receiver would be appropriate to
untangle some of the valuation and specifics of the property behind this and other
owners, given the circumstances.” Throughout the rest of the hearing counsel did
not follow up on this qualified suggestion. After Pozner expressed openness to a
receiver appointment, consistent with his alternative pre-hearing position, the
court explained its ruling: under all of the circumstances, devoting further
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No. 2022AP1751
resources in this extensive litigation to the hiring of a receiver to assist in resolving
the books-and-domains turnover issue was not justified.
¶32 The qualified suggestion by Fetzer at the June 24 hearing that a
receiver could be helpful to “untangle some of the valuation and specifics of the
property” does not resemble his current, categorical argument that appointment of
a receiver was necessary in lieu of or in conjunction with a turnover. This is fatal
to the argument because Fetzer forfeits review of a right that he did not claim in
the circuit court. See State v. Ndina, 2009 WI 21, ¶¶29-30, 315 Wis. 2d 653, 761
N.W.2d 612 (forfeiture rule allows circuit courts to avoid or correct errors with
minimal disruption; gives parties and the circuit court notice of the issue and a fair
opportunity to address the objection, to diligently prepare for and conduct trials;
and prevents attorneys from “sandbagging” opposing counsel by failing to object
to an error for strategic reasons and later claiming that the error is grounds for
reversal); Townsend v. Massey, 2011 WI App 160, ¶25, 338 Wis. 2d 114, 808
N.W.2d 155 (“the forfeiture rule focuses on whether particular arguments have
been preserved, not on whether general issues were raised before the circuit
court”).
¶33 Further, on the merits, Fetzer does not now develop an argument that
it was an erroneous exercise of discretion for the circuit court to decide at the
June 24 hearing that the appointment of a receiver was not called for in light of the
relevant circumstances, in the face of mild suggestions that the court might
considering doing so. Fetzer fails to acknowledge the discretionary nature of the
decision. He relies heavily on selective quotations from passages in a law journal
article, but the whimsically written article does not reference a single Wisconsin
court case or statute, and does not, so far as we can discern, purport to address the
specific issues presented here based on the current law of any jurisdiction.
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No. 2022AP1751
¶34 Fetzer now suggests that the circuit court was obligated to appoint a
receiver in lieu of or in conjunction with ordering turnover, because this would
have allowed the receiver to confirm a position that Fetzer took in the circuit
court, at least at times: that the property has no value. As Pozner points out,
however, one significant problem with this argument is that the court invited
Fetzer to offer evidence of the value (or lack of value) of the property, which
Fetzer declined. Fetzer fails to explain how the court erroneously exercised its
discretion in settling on the $100,000 value, which was supported by evidence,
instead of appointing a receiver for the purpose of property valuation.
¶35 Turning to the circuit court’s denial of the motion for
reconsideration, Fetzer fails now to identify newly discovered evidence that he
presented to the circuit court and, for the same reasons we have just given, he does
not establish a manifest error of law or fact on this issue. In addition, while Fetzer
makes various references to the proposition that intellectual property cannot be
subject to a turnover under Wisconsin law, none of these references establish a
manifest error of law or fact.
III. JUDICIAL ESTOPPEL
¶36 Fetzer argues that “Pozner is judicially estopped from reducing the
money judgment debt with the taking order’s intangible property.”
¶37 There is no mention whatsoever of estoppel in the briefing Fetzer
submitted before the June 24 hearing and also no mention of it at the hearing itself.
Therefore, this was an entirely new argument in the reconsideration motion and
properly rejected by the circuit court on that basis. See Bauer, 400 Wis. 2d 592,
¶14.
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No. 2022AP1751
¶38 Further, the argument is undeveloped on its merits. Fetzer fails to
develop an argument, supported by legal authority, that the circuit court could not
properly issue the turnover order because Pozner might be inclined to derive little
or no revenue from the property.
IV. ABUSE OF PROCESS
¶39 Fetzer now identifies the following as his final argument: “The
Taking Order Procedure was an abuse of process to take property in a fashion not
intended by law with an ulterior motive to prevent a 400+ page book from being
circulated merely because [the circuit court] found 3 sentences of it to be
libelous.”
¶40 As with the estoppel argument, there is no mention whatsoever of
abuse of process in the briefing Fetzer submitted before the June 24 hearing and
also no mention of it at the hearing itself. See id.¶41 Further, the argument on appeal is undeveloped on its merits. It is
sufficient to observe that Fetzer fails to develop an argument, supported by legal
authority, that the circuit court should have overlaid the tort of abuse of process on
top of Wisconsin collection law to determine that a turnover order would allow
Pozner to misuse the property in a manner inconsistent with Wisconsin collection
law. Fetzer’s briefing contains assertions and possibly intended arguments that
appear not to bear directly on any of the issues addressed in this opinion. We
deem any additional purported arguments to be undeveloped. See State v.
Jackson, 229 Wis. 2d 328, 337, 600 N.W.2d 39 (Ct. App. 1999); State v. Pettit,
171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).
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No. 2022AP1751
CONCLUSION
¶42 For all these reasons, we affirm the circuit court’s final order, dated
August 29, 2022, and reject Fetzer’s challenge to the order of July 8, 2022.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
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