Village of Bay City v. David C. Meixner

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.
November 21, 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 Nos. 2022AP1173 Cir. Ct. No. 2018CV3
2022AP1528
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
NO. 2022AP1173
VILLAGE OF BAY CITY,
PLAINTIFF-RESPONDENT,
V.
DAVID C. MEIXNER,
DEFENDANT-APPELLANT,
ROBERT L. LOBERG AND JAMES TURVAVILLE,
DEFENDANTS.
NO. 2022AP1528
IN THE MATTER OF SANCTIONS AGAINST ATTORNEY WILLIAM J. MAVITY:
VILLAGE OF BAY CITY,
PLAINTIFF-RESPONDENT,
Nos. 2022AP1173
2022AP1528
V.
DAVID C. MEIXNER, ROBERT L. LOBERG AND JAMES TURVAVILLE,
DEFENDANTS,
WILLIAM J. MAVITY,
APPELLANT.
APPEALS from a judgment and an order of the circuit court for
Pierce County: RIAN RADTKE, Judge. Affirmed and cause remanded with
directions.
Before Stark, P.J., Hruz and Gill, 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. At the most basic level, these consolidated appeals
involve a real estate dispute between the Village of Bay City and David C.
Meixner. The Village argued that it was entitled to an ownership interest—based
on various legal theories—in four areas of disputed land located on property
owned by Meixner. The circuit court resolved two of the land disputes on
summary judgment, and a jury resolved the remaining disputes at trial. All issues
were resolved in the Village’s favor. Meixner now appeals from the court’s
judgment entered in favor of the Village.
¶2 Attorney William J. Mavity represented Meixner during this
litigation. At different times during the course of this case, the circuit court
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awarded sanctions against either Meixner or Mavity pursuant to WIS. STAT.
§ 802.05 (2021-22).1 Mavity appeals the imposition of those sanctions. Finally,
the Village has also moved for sanctions against Meixner and/or Mavity, arguing
that these appeals are frivolous.
¶3 For the reasons discussed below, we are not persuaded by any of
Meixner’s or Mavity’s arguments on appeal. Further, we conclude that these
appeals are frivolous, and we therefore grant the Village’s motion for sanctions.
Thus, we remand this matter to the circuit court to determine and award costs,
fees, and attorney fees associated with these appeals.
BACKGROUND
¶4 On January 4, 2018, the Village filed suit against Meixner seeking a
declaration that it was entitled to an ownership interest in four areas of disputed
land.2 Within the Village, there is a street that local residents refer to as “Market
Street,” and Meixner owns four lots at the southwest end of that street: Lots 28,
29, 30, and 31. Meixner also owns an area known as Block 20.3 The disputed
land is located on these lots. The parties call the four disputed tracts: (1) Market
Street; (2) the “Ballfield Parking Area”; (3) Loop Road; and (4) Fish Market
Street. The Village claims that these four areas are public land, while Meixner
argues that they belong to him.
1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
The Village later filed both an amended complaint and a second amended complaint.
3
In 1999, Meixner purchased Lot 31 from Frank and Dale Dosdall. In 2003, Meixner
purchased Block 20 from Ray Bach. Then, in 2014, Meixner purchased Lots 28-30 from the
Tyler Family Trust (hereinafter, Tyler).
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¶5 In the circuit court, the Village asserted it owned Market Street on
the basis of four legal theories: statutory dedication; common law dedication; that
Market Street is a public road under WIS. STAT. § 82.31, or a public user by work
easement (public user); and by a prescriptive easement. The Village asserted that
it owned Loop Road and Fish Market Street under three legal theories: common
law dedication, public user, and by a prescriptive easement. Finally, the Village
asserted that it owned the Ballfield Parking Area via a prescriptive easement.
¶6 On January 22, 2018, Meixner filed an answer to the Village’s suit,
denying the Village’s claims and asserting multiple counterclaims against the
Village and third-party claims against the Village’s attorney, Robert L. Loberg,
and the former Village board president, James Turvaville.4 On December 2, 2019,
Meixner filed an amended answer as well as amended counterclaims. For
purposes of these appeals, the relevant counterclaims included: a defamation
claim against the Village for investigating whether Meixner violated its floodplain
ordinance because the Village’s “publicly posted false references to his ‘alleged
floodplain violation’ reflected negatively on his character” (the floodplain claim)5;
4
On June 16, 2021, the circuit court dismissed Meixner’s third-party claims—which
Meixner had improperly designated as counterclaims—against Loberg and Turvaville. We
affirmed that decision based on Meixner’s failure to properly commence a third-party action
against those parties, which resulted in a lack of personal jurisdiction over them. Village of Bay
City v. Meixner, No. 2021AP1323, unpublished slip op. ¶¶1-2 (WI App July 19, 2022).
Subject to limited exceptions that are not applicable here, an unpublished opinion may
not be cited as precedent or authority. See WIS. STAT. RULE 809.23(3)(a)-(b). We do not,
however, cite our decision from Meixner’s previous appeal as precedent or authority. Instead, we
cite it to provide necessary background and context for the issues raised in this case.
5
In an unrelated matter, the Village received information from a citizen that Meixner
had violated an applicable floodplain ordinance in building his home on Lot 31. The Village
board went into closed session in 2016 and 2017 to discuss this allegation, and it publicly posted
the minutes and agenda with this information.
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and a claim for the “Concealment and/or Destruction of Village Fire Department
Records,” relating to allegedly missing Village fire department meeting minutes
(the fire department claim).
¶7 In response, on December 30, 2019, the Village served Meixner with
an unfiled (as of that date) sanctions motion pursuant to WIS. STAT. § 802.05
(Sanctions Motion 1). Sanctions Motion 1 was based on the Village’s assertion
that the floodplain claim, the fire department claim, and Meixner’s inclusion of
criminal statutes—WIS. STAT. §§ 942.03, 943.01, 943.13, and 946.72—within his
civil counterclaims were either frivolous claims and/or made with the intent to
harass.
¶8 On May 22, 2020, the Village moved for summary judgment on all
its claims and on Meixner’s counterclaims. Meixner opposed the motion and filed
his own motion for summary judgment. The circuit court held a hearing on the
cross-motions for summary judgment and, by an oral ruling, granted the Village’s
motion in part and denied Meixner’s motion, including dismissing all of Meixner’s
counterclaims. The court later entered a written order regarding the same. In
particular, the court granted the Village summary judgment as to two of the
disputed areas: Market Street and the Ballfield Parking Area. The court found
that the Village “put forth sufficient evidence to prevail on its claim for the
Ballfield Parking Area via prescriptive use.” It further found in the Village’s favor
on its claim to Market Street on the theory of statutory dedication. Accordingly,
the court did not reach the Village’s claims related to public user or common law
dedication related to Market Street. The court denied summary judgment to the
Village on its claims to Loop Road and Fish Market Street.
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¶9 The Village’s claims to Loop Road and Fish Market Street were
tried to a jury in March 2022. The jury returned all special verdicts—pertaining to
the claims for common law dedication, public user, and prescriptive easement—in
the Village’s favor, thereby granting its claims to Loop Road and Fish Market
Street.
¶10 On April 11, 2022, Meixner filed a “Notice of Motion and Motion
for Judgment Notwithstanding the Verdict” as well as a “Notice of Motion and
Motion for a New Trial.” Meixner did not file briefs accompanying those
documents. On May 9, 2022, however, forty-seven days after the verdict, Meixner
filed another document titled “Motion for Judgment Notwithstanding the Verdict”
(JNOV Motion 2), which was filed under the designation as a brief in support of
the first motion.
¶11 On May 20, 2022, the Village served Meixner with a second unfiled
sanctions motion (Sanctions Motion 2), pertaining to JNOV Motion 2 and
identifying seven instances of sanctionable conduct within that filing. That
conduct related almost entirely to Meixner’s claims within JNOV Motion 2 that
the Village was misleading or committing fraud on the circuit court. Four days
later, Mavity filed a letter with the court stating that he would not be withdrawing
Meixner’s JNOV Motion 2.
¶12 The circuit court discussed JNOV Motion 2 at two hearings. The
first was at a status conference on May 11, 2022, where the court stated:
The [c]ourt is left to follow the statute, [WIS. STAT.
§] 805.16(1) sets a time frame of 20 days, and so the [c]ourt
will consider and review motions and briefs that were filed
within the 20 days from verdict. I’m not going to review
and look at any motions or briefs that are filed outside of
that time frame as the statute sets a strict time frame. There
was no request to the [c]ourt for a longer time made within
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the 20 days after verdict was rendered as the statute say[s].
There was no briefing schedule that was ordered.
The court concluded that Meixner’s JNOV Motion 2 “request [was] late.” Then
on May 26, 2022, at the postverdict motion hearing, the court reiterated that it
would not be considering Meixner’s untimely JNOV Motion 2. Nevertheless,
Meixner still did not withdraw JNOV Motion 2. The court entered a judgment in
favor of the Village on May 31, 2022.
¶13 On June 17, 2022, the Village filed Sanctions Motions 1 and 2 with
the circuit court. After briefing and additional argument on the record, the court
granted the Village’s motions by an oral ruling on August 8, 2022, and by a
written order on August 17, 2022.
¶14 On Sanctions Motion 1, as to the floodplain claim, the circuit court
found that the “allegation does not have any evidentiary support, as ultimately the
[court] dismissed the counterclaim on summary judgment for failure of [Meixner]
to comply with the statutory notice requirements.” As to the fire department
claim, the court found that Meixner did not defend the claim on summary
judgment and that it was “not warranted by existing law.” The court further
concluded that “based on [Meixner’s] non-withdrawal and simultaneous
non-defense of the claim, it appears that such claim was being presented for an
improper purpose such as to harass or cause needless increase in the cost of
litigation.” As to Meixner’s use of criminal statutes in his counterclaims, the court
reasoned that “there would be no other reason to list criminal statutes in a civil
matter, unless the party referencing such criminal statutes in their claim was trying
to improperly intimidate or harass the opposing party.” Ultimately, the court
concluded that Meixner presented “all three of the instances … for an improper
purpose, such as to harass or cause needless increase in the cost of litigation.”
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¶15 On Sanctions Motion 2—based on Meixner’s JNOV Motion 2—the
circuit court found in favor of the Village regarding all seven instances of conduct
that the Village argued to be frivolous and/or harassing and asserted for improper
purposes. The court stated:
In summary, the [c]ourt finds that the [JNOV Motion 2]
was presented for an improper purpose, such as to harass or
cause needless increase in the cost of litigation. There does
not appear to be any valid purpose to bring the motions and
allegations consisting of instances one through seven,
specifically such allegations on a motion for JNOV. Thus
the [c]ourt concludes such allegations here were made for
an improper purpose, such as to harass or cause needless
increase in the cost of litigation.
In support of its conclusion, in addition to [Meixner’s]
conduct here, the [c]ourt cites to history within this matter
where [Mavity] was previously warned by the [c]ourt to not
make over-the-top accusations of wrong doing that were
not backed by actual facts.
Further, and more disturbing, [Mavity] has a history in
this case of conduct made with the stated intent of causing
the Village to incur further legal fees.
Further, the [c]ourt finds the counterclaims, defenses,
and other legal contentions stated in the [JNOV Motion 2]
were not warranted by existing law, were not a
nonfrivolous argument for the extension, modification, or
reversal of existing law or the establishment of new law.
Also the [c]ourt, further finds allegations and other
factual contentions stated in the [JNOV Motion 2], that
were specifically highlighted [in Sanctions Motion 2], do
not have evidentiary support and are not likely to have
evidentiary support after a reasonable opportunity for
further investigation or discovery.
¶16 The circuit court awarded the Village attorney’s fees it incurred for
Sanctions Motions 1 and 2 in the amount of $7,895.19 and $18,549, respectively.
These amounts were calculated using an increased lodestar amount “to have [a]
deterrent effect in light of the facts and history of [Meixner’s] counsel in this
matter.” Further, the court ordered that Mavity, not Meixner, would be
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responsible for the fees because Mavity “was the violating actor in this matter.”
Meixner and Mavity appeal.6
DISCUSSION
I. Failure to State a Claim Upon Which Relief Could be Granted
¶17 First, Meixner argues that he was entitled to summary judgment on
all of the Village’s claims of “adverse possession, prescriptive and public use
easements, and common law dedication” based on the Village’s failure to meet
Wisconsin’s pleading standards within its complaint and amended complaints.7
6
On July 7, 2022, Meixner filed a notice of appeal from the circuit court’s May 31, 2022
judgment in appeal No. 2022AP1173. By order of August 31, 2022, this court placed that appeal
on hold pending an anticipated appeal from the court’s order granting the Village’s motions for
sanctions. Mavity filed a notice of appeal on his own behalf from the court’s August 17, 2022
order in appeal No. 2022AP1528. See Ziebell v. Ziebell, 2003 WI App 127, ¶1, 265 Wis. 2d 664,
666 N.W.2d 107 (“[A]n attorney who is sanctioned by the circuit court for misconduct in a
client’s case must file his or her own notice of appeal in order to challenge the sanction ….”).
This court then consolidated the appeals on September 13, 2022.
7
As an initial matter, we express our concern about the unprofessional briefing
submitted by Meixner and Mavity in these cases. The briefing did not provide a coherent
“statement of facts relevant to the issues presented for review, with appropriate references to the
record.” See WIS. STAT. RULE 809.19(1)(d). The arguments are also largely undeveloped or
underdeveloped and, overall, are unsupported by legal authority and citations to “parts of the
record relied on.” See RULE 809.19(1)(e). In general, the briefing is disorganized—a fact that
Mavity acknowledges in his reply but calls “excusable neglect.” These errors are pervasive
throughout the briefing. The errors have created unnecessary work for this court, given that the
records are substantial and contain 898 documents, and in some cases have resulted in this court’s
inability to review an issue.
Further, we acknowledge the Village’s observation that “Meixner’s brief is peppered with
accusations of Village counsel ‘falsely’ asserting matters to the courts.” The Village also notes
that Meixner accuses Loberg of altering a public record when the unaltered document is available
in the records in these appeals. These are serious accusations of misconduct made in a flippant
manner and unrelated to arguments before this court. These derogatory accusations are
unnecessary and disrespectful to this court and to the appellate process.
(continued)
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Thus, Meixner argues, the circuit court erred by denying Meixner’s motion for
summary judgment and by failing to comply with WIS. STAT. § 802.08 and the
two-part summary judgment methodology described in Tikalsky v. Friedman,
2019 WI 56, 386 Wis. 2d 757, 928 N.W.2d 502.
¶18 In Tikalsky, our supreme court explained that the summary
judgment methodology begins with the court examining “the pleadings to
determine whether a claim for relief has been stated.” Id., ¶11 (citation omitted).
“Plaintiffs must allege facts that plausibly suggest they are entitled to relief.”
Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶31, 356 Wis. 2d 665,
849 N.W.2d 693. “In testing the sufficiency of a complaint, we take all facts
pleaded by plaintiff[] and all inferences which can reasonably be derived from
those facts as true.” Tikalsky, 386 Wis. 2d 757, ¶11 (alteration in original; citation
omitted). Importantly, the court observed that “we liberally construe pleadings
‘with a view toward substantial justice to the parties.’” Id. (citation omitted).
¶19 In the second part of the summary judgment methodology, “[i]f a
claim for relief has been stated,” then “the inquiry … shifts to whether any factual
issues exist.” Id., ¶12 (alteration in original; citation omitted). “Summary
judgment is appropriate only ‘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
In his previous appeal in this case, we warned Meixner that “in the future” we expected
“full compliance” with the Rules of Appellate Procedure. Meixner, No. 2021AP1323, ¶5 n.5.
“Failure of a person to comply … with a requirement of these rules … is grounds for dismissal of
the appeal, summary reversal, striking of a paper, imposition of a penalty or costs on a party or
counsel, or other action as the court considers appropriate.” WIS. STAT. RULE 809.83(2). These
failures by Meixner and Mavity do not provide a basis for striking the briefs, but they do factor
into our consideration of the Village’s motion for sanctions, discussed in detail below.
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entitled to a judgment as a matter of law.’” Id. (quoting WIS. STAT. § 802.08(2)).
We review the circuit court’s grant or denial of summary judgment de novo using
this same methodology but benefiting from the court’s analysis. Id., ¶10.
¶20 We note, first, as the Village does, that the only cause of action that
Meixner appears to challenge is the Village’s prescriptive easement claim, as he
cites to only that legal standard in his briefing before this court. Specifically,
Meixner argues that the Village “did not state allegations of fact supporting any of
the first three elements of its claimed prescriptive easements in either its Amended
Complaint or its Second Amended Complaint.”
¶21 “[T]he sufficiency of a complaint depends on substantive law that
underlies the claim made because it is the substantive law that drives what facts
must be pled.” Data Key, 356 Wis. 2d 665, ¶31. We are unable to test the
sufficiency of the Village’s complaint in its entirety without a discussion of the
substantive law that underlies each of the Village’s other claims. We would need
to abandon our neutrality to develop Meixner’s arguments to determine whether
and how the Village failed to allege facts that would plausibly suggest it was
entitled to relief under the substantive law governing its other claims. See id. We
decline to do so. See Industrial Risk Insurers v. American Eng’g Testing, Inc.,
2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (“[W]e will not abandon
our neutrality to develop arguments.”); State v. Pettit, 171 Wis. 2d 627, 647, 492
N.W.2d 633 (Ct. App. 1992).
¶22 Thus, we conclude that the only cause of action that is before us is
the Village’s prescriptive easement claim. We further conclude that because the
circuit court granted summary judgment to the Village as to Market Street on the
theory of statutory dedication—not prescriptive easement—and denied summary
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judgment as to Loop Road and Fish Market Street, the court’s only summary
judgment decision at issue involves the Ballfield Parking Area.8
¶23 To the extent Meixner intends to argue that the circuit court erred by
failing to dismiss the Loop Road and Fish Market Street claims on summary
judgment, as noted above, we conclude his claims are undeveloped. On appeal,
Meixner states only that “‘open and notorious’ would require the Village to be
using the [L]oop [R]oad and the Bachs’ driveway (aka Fish Market Street) as if
they were the owner; adverse use means that the use of [those areas] must be
against the rights of Tyler or the Bachs,” who were the former owners.
(Formatting altered.) Meixner claims the Village “never provided any evidence or
credible testimony in depositions or at trial alleging facts satisfying these
elements.” Meixner’s arguments are unavailing.
¶24 First, whether the Village presented evidence at trial or in
depositions has no bearing on a summary judgment decision based on a failure to
state a claim for relief in the pleadings. Second, the circuit court determined that
there were genuine issues of material fact as to Loop Road and Fish Market Street,
based on the evidence the Village did present, that precluded summary judgment.
8
We are unsure whether Meixner means to argue that the Village’s second amended
complaint should have been dismissed in its entirety on summary judgment based on a failure to
allege facts supporting each of the elements for each claim. In other words, the Village’s entire
complaint should fail based on its failure to properly meet the pleading standards for the
prescriptive easement claim, regardless of whether it sufficiently pled its other claims. To the
extent that this is Meixner’s argument, it is clearly not the standard by which courts view the
sufficiency of a complaint. For each area of land in dispute, the Village alleged multiple causes
of action—except, as noted above, for the Ballfield Parking Area. Therefore, to the extent that
Meixner argues that summary judgment should have been granted to him and the Village’s claims
dismissed based on the Village’s alleged failure to plead sufficient facts on one cause of action
while the others remained, we disagree. Any defect in the pleadings related to one cause of
action does not defeat the entire complaint based on a failure to state a claim, and Meixner does
not present any legal authority to the contrary.
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In general, Meixner’s argument is undeveloped, and we would need to abandon
our neutrality to develop his conclusory statements to determine whether and how
the Village failed to allege facts that would plausibly suggest it was entitled to
relief under the substantive law. See Industrial Risk, 318 Wis. 2d 148, ¶25; Pettit,
171 Wis. 2d at 647.
¶25 As to the Ballfield Parking Area, we conclude that the Village has
alleged sufficient facts that “plausibly suggest [it is] entitled to relief.” See Data
Key, 356 Wis. 2d 665, ¶31; Tikalsky, 386 Wis. 2d 757, ¶16. “An easement by
prescription requires the following elements, (1) adverse use hostile and
inconsistent with the exercise of the titleholder’s rights; (2) which is visible, open
and notorious; (3) under an open claim of right; (4) and is continuous and
uninterrupted for twenty years.” Ludke v. Egan, 87 Wis. 2d 221, 230, 274
N.W.2d 641 (1979). Different from adverse possession, a prescriptive easement is
based on a person’s use of another’s property rather than a person’s possession of
another’s property. Shellow v. Hagen, 9 Wis. 2d 506, 511, 101 N.W.2d 694(1960). “An act is hostile when it is inconsistent with the right of the owner and
not done in subordination to it,” Ludke, 87 Wis. 2d at 230, but “[h]ostile use is not
an unfriendly intent and does not mean a controversy or a manifestation of ill
will,” Shellow, 9 Wis. 2d at 511. “A use which is permissive is subservient and
not adverse.” Ludke, 87 Wis. 2d at 230.
When it is shown that there has been the use of an
easement for 20 years, unexplained, it will be presumed to
have been under a claim of right and adverse, and will be
sufficient to establish a right by prescription, and to
authorize the presumption of a grant, unless contradicted or
explained.
Shellow, 9 Wis. 2d at 510 (citation omitted). However, the presumption may be
rebutted. Id.13
Nos. 2022AP1173
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¶26 Overall, Meixner’s arguments are replete with conclusory statements
that the Village’s second amended complaint does not meet our supreme court’s
pleading standards. However, he fails to address how the Village’s pleadings were
insufficient under the substantive law. Meixner does not advance any argument
related to the Ballfield Parking Area. Indeed, he only minimally discusses Loop
Road and Fish Market Street, as noted above. Meixner spends eight pages of his
brief-in-chief discussing different items of alleged evidence—“alleged” because
he does not cite to the records—but fails to explain how that evidence renders the
Village’s pleadings in the second amended complaint insufficient.9 Thus,
9
We note that within Meixner’s claim that he was entitled to summary judgment based
on the Village’s failure to meet proper pleading standards, he spends a substantial portion of his
brief-in-chief arguing that the evidence presented at trial did not support the elements of a
prescriptive easement. First, as noted above, this argument is irrelevant as to Loop Road and Fish
Market Street because the Village still prevailed at trial on its public user and common law
dedication claims. In particular, Meixner focuses on the fact that the Village’s witnesses’
testimony proves that the public used the property with permission, which defeats a prescriptive
easement claim, but permission is not an affirmative defense to public user or common law
dedication. See Cohn v. Town of Randall, 2001 WI App 176, ¶6, 247 Wis. 2d 118, 633 N.W.2d
674; School Dist. of Hillsboro v. City of Hillsboro, No. 2012AP888, unpublished slip op. ¶25
(WI App Dec. 6, 2012); see also WIS. STAT. RULE 809.23(3)(b) (stating that an unpublished
opinion that is authored by a member of a three-judge panel and issued on or after July 1, 2009,
may be cited for its persuasive value). To the extent an argument could be made that permission
is an affirmative defense to those claims, Meixner fails to make it.
Second, the question before us—as designated by Meixner—is whether the circuit court
erred by denying summary judgment to Meixner, not whether the evidence presented at trial
supported the prescriptive easement elements. This evidence was not before the court at the time
of its summary judgment decision, and Meixner does not claim that it was.
To the extent that Meixner intended to lodge a separate challenge to the sufficiency of the
evidence at trial, he has failed to properly develop that argument. Although Meixner alleges an
evidentiary failure, Meixner does not explain what is lacking or what might satisfy as proof. He
also failed to properly challenge the sufficiency of the evidence or develop that argument before
the circuit court. Compare WIS. STAT. § 805.14(5)(b), with § 805.14(5)(c), (6).
(continued)
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Meixner’s argument is undeveloped, and we could decline to address it for that
reason. See Pettit, 171 Wis. 2d at 646-47.
¶27 Nevertheless, we agree with the Village that it satisfied the
“plausibility” standard in pleading a prescriptive easement as to the Ballfield
Parking Area. See Data Key, 356 Wis. 2d 665, ¶31. In the Village’s second
amended complaint, it alleged as follows: (1) Meixner owns Lot 28 in the Village,
and the Ballfield Parking Area is on Lot 28; (2) a fence has separated the disputed
Ballfield Parking Area from Meixner’s property since 1956; (3) the public
regularly parked on the Ballfield Parking Area; (4) the Village mowed the
Ballfield Parking Area from 1955-1987; (5) the mowing of the Ballfield Parking
Area continued through at least 2015; (6) a 2014 survey showed a fence separating
the Ballfield Parking Area from Meixner’s side of the properties; (7) “[w]hen
Meixner removed the fence adjacent to the disputed [Ballfield Parking Area], in
2015, his side was wooded, while the Village side was mowed”; and (8) in 2015,
the public was parking on the Ballfield Parking Area at least once per month.
¶28 On appeal, the Village argues that
[t]he foregoing facts show an unexplained use of an
easement for longer than 20 years. The pled facts thus raise
the legal presumption that the Village’s use of the
[Ballfield] Parking Area was adverse and under a claim of
right. Moreover, maintaining and parking on the [Ballfield]
Regardless, the jury found that the Village had provided sufficient evidence supporting
the elements of its prescriptive easement claims, and the circuit court denied Meixner’s
postverdict motion. “When reviewing a jury verdict, we affirm if the record contains ‘any
credible evidence’ to support the verdict; this is ‘even more true when the [circuit] court gives its
explicit approval to the verdict by considering and denying postverdict motions.’” See D.L.
Anderson’s Lakeside Leisure Co. v. Anderson, 2008 WI 126, ¶22, 314 Wis. 2d 560, 757 N.W.2d
803 (citation omitted). In those situations, we afford special deference to the jury’s
determination, and we will not overturn the jury’s verdict unless “there is such a complete failure
of proof that the verdict must be based on speculation.” Id. (citation omitted).
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Parking Area is inconsistent with Meixner’s record title.
The longstanding fence also suggests adverse use on the
Village side of the fence.
We agree with the Village that these pleaded facts suggest a plausible recovery of
the Ballfield Parking Area by the Village under the theory of a prescriptive
easement. Contrary to Meixner’s arguments, the Village did not merely allege the
elements of the claim—i.e., that the use was hostile or adverse or that it was open
and notorious. Instead, the facts noted above are facts alleged by the Village that
could establish each of those elements. As Meixner does not address or properly
dispute this conclusion, his claim that the circuit court should have granted him
summary judgment as to the Ballfield Parking Area fails.
II. Failure to Comply with the Thirty-Year Recording Requirement in WIS. STAT.
§ 893.33
¶29 Next, Meixner argues that he was entitled to summary judgment
“dismissing the Village’s claims of easements established after 20 years of use
when it failed to record them with the Pierce County Register of Deeds within the
30[-]year time limit required by” WIS. STAT. § 893.33. According to Meixner,
“[t]he Village provided no evidence at summary judgment or at trial that it had
complied with … § 893.33 and recorded the claimed prescriptive easements with
the Register of Deeds.” On appeal, Meixner argues that “the 30-year time limit
ended for the claimed easements on the Loop [R]oad and … Fish Market Street by
2003, and the claimed easement on the [Ballfield Parking Area] no later than
2005.” For the reasons that follow, Meixner’s claims fail.
¶30 The thirty-year recording requirement set forth in WIS. STAT.
§ 893.33(2) provides, in part, as follows:
[N]o action affecting the possession or title of any real
estate may be commenced … that is founded upon
any … event occurring more than 30 years prior to the date
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of commencement of the action, unless … within 30 years
after the date of the … event, there is recorded in the office
of the register of deeds of the county in which the real
estate is located some instrument expressly referring to the
existence of the claim ….
“Under the 30-year recording requirement, a person who claims ownership rights
as the result of an event loses the right to bring a claim based on that event if an
instrument or notice of claim is not recorded within 30 years of the event.”
O’Neill v. Reemer, 2003 WI 13, ¶10, 259 Wis. 2d 544, 657 N.W.2d 403. In other
words, as that statute applies here, once the time requirement for the Village’s
claim(s) had run, the Village then had thirty years to record some instrument
expressly referring to the existence of that claim.
¶31 The statute also contains an owner-in-possession exception to the
thirty-year recording requirement, wherein the statute “does not apply to any
action commenced … by any person who is in possession of the real estate
involved as owner at the time the action is commenced.” WIS. STAT. § 893.33(5).
This exception “applies to adverse possession claims,” O’Neill, 259 Wis. 2d 544,
¶1; however, this court has stated that “the owner-in-possession exception in
[§] 893.33(5) unambiguously excludes from its coverage holders of a prescriptive
easement,” Schauer v. Baker, 2004 WI App 41, ¶22, 270 Wis. 2d 714, 678
N.W.2d 258.
¶32 First, WIS. STAT. § 893.33 does not apply to some of the Village’s
claims. As noted above, the Village asserted multiple causes of action based on
each of the disputed areas. We again reiterate that simply because § 893.33 may
have barred one or more of those claims does not mean that the circuit court erred
by not granting summary judgment in Meixner’s favor when one or more claims
may have remained viable. The jury found the elements of a prescriptive
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easement as to Loop Road and Fish Market Street. It also found the elements of a
public user easement under WIS. STAT. § 82.31,10 and the court rendered judgment
for both.
¶33 The Village argues that claims under WIS. STAT. § 82.31 fall under
the WIS. STAT. § 893.33(5) exception and are not barred by the thirty-year
recording requirement. See City of Prescott v. Holmgren, 2006 WI App 172,
¶¶7-12, 295 Wis. 2d 627, 721 N.W.2d 153; § 893.33(5) (“This section also does
not apply to real estate or an interest in real estate while the record title to the real
estate or interest in real estate remains in the state or a political subdivision or
municipal corporation of this state.”). Meixner fails to address this argument in
his reply. 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
argument made in response brief may be taken as concession). Thus, we accept
that even if Meixner is correct—the Village failed to record the easements
pursuant to § 893.33—that fact is irrelevant for the purposes of Loop Road and
Fish Market Street.
¶34 Second, even if the WIS. STAT. § 893.33(5) exception was not
applicable, Meixner did not properly raise the issue of § 893.33(2) with regard to
the Ballfield Parking Area, Loop Road, or Fish Market Street. As noted, the
thirty-year recording requirement states that a person must record an instrument
referring to the existence of the claim within thirty years or he or she “loses the
right to bring a claim based on that event.” See O’Neill, 259 Wis. 2d 544, ¶10.
10
WISCONSIN STAT. § 82.31(2)(a) provides that “any unrecorded highway that has been
worked as a public highway for 10 years or more is a public highway.”
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Thus, § 893.33(2) is absolutely a statute of limitations and is an affirmative
defense. See Statute of Limitations, BLACK’S LAW DICTIONARY (11th ed. 2019)
(“A law that bars claims after a specified period.”); WIS. STAT. § 802.02(3); State
v. Watkins, 2002 WI 101, ¶39, 255 Wis. 2d 265, 647 N.W.2d 244 (“An
‘affirmative defense’ is … ‘a defendant’s assertion raising new facts and
arguments that, if true, will defeat the plaintiff’s … claim even if all allegations in
the complaint are true.’” (citation omitted)); see also Turner v. Taylor, 2003 WI
App 256, ¶¶15-16, 18, 268 Wis. 2d 628, 673 N.W.2d 716. On appeal, Meixner
does not argue to the contrary.
¶35 Based on our review of the records, Meixner did plead the statute of
limitations in his answer to the Village’s second amended complaint. See WIS.
STAT. § 802.02(3); see also WIS. STAT. § 802.06(2). There, he stated generally
that “[t]he Second Amended Complaint is barred by the applicable statutes of
limitations relating to its alleged claims of adverse possession, prescriptive
easement or common law prescription.” We agree with the Village, however, that
Meixner’s answer failed to cite WIS. STAT. § 893.33 or specify which of the
Village’s claims to which disputed property would be barred.
¶36 Regardless, on summary judgment, Meixner failed to allege any
statute of limitations, or specifically WIS. STAT. § 893.33, within either his
response to the Village’s motion for summary judgment, his own motion for
summary judgment, or in his supplemental brief in support of his motion for
summary judgment. Meixner’s only argument pertaining to § 893.33 was in his
summary judgment reply brief, where he mentioned that the Village never
recorded its claims and cited Schauer, but he failed to cite the actual statute or any
evidence before the circuit court or argument establishing that the thirty-year time
period had in fact run on any of the disputed land. See TJ Auto LLC v. Mr. Twist
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Nos. 2022AP1173
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Holdings LLC, 2014 WI App 81, ¶14, 355 Wis. 2d 517, 851 N.W.2d 831 (“[T]he
burden of proof with respect to a statute of limitations is on the party asserting it.”
(citation omitted)); see also Bishop v. City of Burlington, 2001 WI App 154, ¶8,
246 Wis. 2d 879, 631 N.W.2d 656 (“A litigant must raise an issue with sufficient
prominence such that the [circuit] court understands that it is being called upon to
make a ruling.”).
¶37 The next time Meixner appears to have mentioned WIS. STAT.
§ 893.33 was in a letter he filed with the circuit court four days before trial, asking
for a trial postponement, which the court denied. In that letter, Meixner relied on
two documents to show that § 893.33 supposedly bars the Village’s claims: the
April 8, 1964 Village fire department meeting minutes and the Village’s second
amended complaint. Meixner argued that these documents “prove the [Village]
missed its 30-year deadline for filing its public user and prescriptive easement
claims with the Pierce County Register of Deeds,” as “[w]e now know from the
facts in the minutes and from the admission in the Second Amended Complaint
discovered today, the 20-year time started no later than April 8, 1968. That is 54
years ago.”
¶38 Nevertheless, the Village argues—and Meixner does not dispute in
his reply—that these documents were not presented to the jury. Instead, the
Village observes that “the earliest admitted exhibit showing Village use and
maintenance of the roads is from 1974.” Meixner has not brought to our attention
any other evidence that was presented to the jury establishing when the § 893.33
time periods would have run. Meixner was required to present evidence to the
jury to prove that the Village’s claims—the ones that were actually before the
jury—were time barred. See TJ Auto LLC, 355 Wis. 2d 517, ¶14. He failed to do
so.
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¶39 Meixner also failed to sufficiently raise the issue with the circuit
court after the verdict. In his only timely11 motion for judgment notwithstanding
the verdict, Meixner argued that the Village “provided no evidence that it satisfied
the 30[-]year recording requirements of WIS. STAT. § 893.33 and did not lose its
right to continue its use of the Loop Road and the claimed Fish Market Street as
prescriptive easements.” Meixner failed to develop his argument beyond this
point. As noted above, § 893.33 is an affirmative defense; therefore, it was not the
Village’s duty or burden to present evidence on this issue. See TJ Auto LLC, 355
Wis. 2d 517, ¶14. It was Meixner’s burden to prove that the Village’s claims were
time barred. Thus, any alleged failure by the Village on this point was immaterial.
¶40 In summary, Meixner has failed to sufficiently argue and/or present
evidence based on WIS. STAT. § 893.33 on summary judgment, at trial, and
postverdict for the Ballfield Parking Area, Loop Road, and Fish Market Street.
Therefore, Meixner’s claim that the circuit court should have granted him
summary judgment as to those disputed areas based on the Village’s failure to
comply with the thirty-year recording requirement under § 893.33 fails.
III. Failure to Establish Common Law Dedication
¶41 Meixner next argues that he is “entitled to summary judgment
dismissing the Village’s claims of statutory and/or common law dedication of the
11
We pause here to note that, on appeal, Meixner does not appear to challenge in his
brief-in-chief the circuit court’s decision not to consider JNOV Motion 2. Then, for the first time
in reply, Meixner states that “the Village’s Response … implies that [JNOV Motion 2] was
untimely rejected by the [circuit] court,” but he claims—without citation to any legal authority
and without addressing the court’s reading of WIS. STAT. § 805.16(1)—that JNOV Motion 2 was
timely. We need not address arguments raised for the first time in a reply brief. Bilda v. County
of Milwaukee, 2006 WI App 57, ¶20 n.7, 292 Wis. 2d 212, 713 N.W.2d 661.
21
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‘disputed lands.’”12 We first note that based on Meixner’s statement, this
argument could conceivably pertain to Market Street, Loop Road, and Fish Market
Street. However, as to this issue, Meixner’s arguments on appeal focus
exclusively on Fish Market Street.13 According to Meixner, “[t]he Village
produced no credible evidence or testimony at trial that [Bach] ever dedicated
[Fish Market Street] to the Village as stated in the Jury Verdicts 17 and 18.”14 He
asserts that the Village “repeatedly and falsely claimed that Tyler gave the Village
permission to raise Fish Market Street in July 1974,” but that land was not owned
12
“Dedication is defined to be the act of giving or devoting property to some proper
object, in such a way as to conclude the owner.” Kennedy v. Barnish, 244 Wis. 137, 141, 11
N.W.2d 682 (1943) (citation omitted). Wisconsin recognizes two types of dedication: statutory
and common law. Cohn, 247 Wis. 2d 118, ¶6. “Common law dedication requires an explicit or
implicit offer to dedicate land, and an acceptance of the offer by the municipality or by general
public use.” Id. “Intent to dedicate to the public use is an essential component of either statutory
or common law dedication, since the municipality cannot accept that which is not offered in the
first instance.” Id.“Informal acceptance of a common-law dedication may be accomplished either by the
actions of ‘the proper public authorities or by general public user.’” City of Beaver Dam v.
Cromheecke, 222 Wis. 2d 608, 615, 587 N.W.2d 923 (Ct. App. 1998) (citation omitted). “The
general public itself may accept an offer of dedication by using the offered property for a
‘considerable length of time.’” Id. (citation omitted). Acceptance “may also be accomplished
‘by implication from the acts of municipal officers.’” Id. at 617 (citation omitted). “There need
be but little affirmative action to indicate an intention to accept a dedication.” Id. (citation
omitted).
We note that in Meixner’s reply brief, he mentions Loop Road within “Issue no. 3”—
13
the common law dedication argument—for the first time. There, he mentions “the Village’s false
or misleading claims that Tyler dedicated the ‘[L]oop [R]oad’ to the Village, and that Raymond
and Marion Bach dedicated part of his property, ‘Fish Market Street’ to the Village.” Meixner
claims that he “bought Tyler’s [L]ots 28, 29 and 30 that include the [L]oop [R]oad from the Tyler
Family Trust on December 31, 2014,” and “[i]t is obvious that that sale would not have occurred
if Tyler had dedicated a portion of that land to the Village.” We will not address this untimely
argument. See Bilda, 292 Wis. 2d 212, ¶20 n.7.
Special verdict question 17 asked: “Did Mr. Meixner’s predecessor in title explicitly
14
or implicitly intend to dedicate the Fish Market Street to the Village?” Special verdict
question 18 asked: “Did the Village accept the dedication of Fish Market Street from
Mr. Meixner’s predecessor in title by explicit or implied acceptance or general public use?”
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by Tyler, he could not authorize any maintenance or work, and the Village knew
that Tyler never owned Fish Market Street. Accordingly, Meixner argues that
despite knowing “the true facts,” the Village “drafted the Special Verdicts nos. 17
and 18 approved by the [c]ourt and provided to the [j]ury.” Further, Meixner
asserts that the Village’s statements to the jury pertaining to those special verdict
questions “were also false statements.”
¶42 Meixner’s arguments are confusing and undeveloped. First,
Meixner argues that he was entitled to summary judgment on the Village’s
common law dedication claim to Fish Market Street. However, this issue became
a jury question, which Meixner presumably recognizes, despite his statement of
the issue, because his arguments focus on issues at trial, not at the summary
judgment stage. However, Meixner’s argument that no credible evidence or
testimony was presented at trial is entirely conclusory. He fails to identify what
element of a common law dedication claim was not established, what evidence he
believed should have been presented, or what evidence was presented that failed to
establish any of the elements of the claim. Accordingly, we reject Meixner’s
purported challenge to the sufficiency of the evidence as to Fish Market Street, as
it is not our responsibility to search the records to seek out evidence in support of a
party’s argument, especially within records of this volume. See Grothe v. Valley
Coatings, Inc., 2000 WI App 240, ¶6, 239 Wis. 2d 406, 620 N.W.2d 463,
abrogated on other grounds by Wiley v. M.M.N. Laufer Fam. Ltd. P’ship, 2011
WI App 158, 338 Wis. 2d 178, 807 N.W.2d 236; United States v. Dunkel, 927
F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried
in [the record].”).
¶43 To the extent that Meixner actually intends to argue that summary
judgment should have been granted in his favor and the claim dismissed based on
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the Village’s allegedly false statement that Tyler gave permission to raise and
improve Fish Market Street, that fact is irrelevant. Whether or not the Village
misstated who owned Fish Market Street prior to Meixner, the circuit court did not
grant summary judgment to the Village on that claim because it determined that
there were genuine issues of material fact as to the Village’s claim to Fish Market
Street, and therefore that issue was submitted to the jury. Then, regardless of what
evidence was provided at summary judgment, the Village made it very clear to the
jury in its closing argument that “the road that was built in 1974 wasn’t even on
[Tyler’s] land” and “so his permission doesn’t mean a thing in this case.” Meixner
does not address this argument in reply, and we therefore deem it conceded.
See United Coop., 304 Wis. 2d 750, ¶39.
¶44 Finally, as to special verdict questions 17 and 18, Meixner does not
explain how those questions were improper. He simply refers to them as “false”
and as “false statements.” However, the special verdict questions were discussed
during the jury instruction and verdict conference, and Mavity stated he had no
objection to either of those questions. Thus, Meixner has waived his right to
object to the form of the special verdict. See Estate of Hegarty v. Beauchaine,
2006 WI App 248, ¶54, 297 Wis. 2d 70, 727 N.W.2d 857. In any event, the
language of the questions merely asked the jury whether Meixner’s predecessor in
title had dedicated Fish Market Street and whether that offer was accepted. That
was a factual issue at trial, and we see nothing objectionable about asking the jury
to decide that issue. While Meixner does not appreciate that the jury resolved
these questions against him, that in itself is not a ground for reversal.
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IV. Village’s Discovery Violations
¶45 Next, Meixner argues that he was entitled to summary judgment
dismissing the Village’s second amended complaint, and to an award of attorney
fees, “based on the Village’s repetitive discovery violations of” WIS. STAT.
§§ 804.11 (requests for admission) and 804.12(1)(a) and (b) (failing to answer
interrogatories or produce documents). Meixner cites several documents in the
records that he claims demonstrate the Village’s “nonresponsive” answers to
requests for admissions and interrogatories. According to Meixner, the circuit
court “failed to review and rule on the merits of the Village’s discovery
violations.” Finally, Meixner also argues that the court “denied to rule on the
merits of Meixner’s two motions to compel Production of Documents, but granted
sanctions of $10,185 against Meixner and Mavity on the grounds that Meixner’s
motion[s] to compel were not ‘substantially justified.’”
¶46 Meixner does not identify the motions on which he claims the circuit
court failed to rule. On appeal, he only lists the discovery documents he
complains about without explaining why they were nonresponsive or what was
wrong with them. And, according to the Village, “Meixner never even brought a
motion to compel answers to the discovery he complains about.” Instead, the
Village explains, the court denied two of Meixner’s motions to compel concerning
different discovery than what Meixner now references. Meixner fails to respond
to the Village’s assertion in reply. We therefore deem it conceded. See United
Coop., 304 Wis. 2d 750, ¶39.
¶47 As to Meixner’s document production motions, the entirety of
Meixner’s argument is that “[t]he circuit court exercised an erroneous
discretionary decision in granting unjustified monetary sanctions on the grounds
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that the two motions were not substantially justified.” We agree with the Village
that Meixner’s arguments are undeveloped, lacking citation to legal authority, and
entirely conclusory. See Pettit, 171 Wis. 2d at 646-47. We will address the issue
no further.
V. Sanctions Against Meixner and Mavity
¶48 Finally, Mavity argues that the circuit court levied improper
sanctions against him pursuant to WIS. STAT. § 802.05. “We review the [circuit]
court’s decision to impose sanctions and the appropriateness of the sanctions
ordered under an erroneous exercise of discretion standard.” Lee v. GEICO
Indem. Co., 2009 WI App 168, ¶16, 321 Wis. 2d 698, 776 N.W.2d 622. “[W]e
will affirm the [circuit] court’s decision if it examined the relevant facts, applied a
proper standard of law, and reached a reasonable conclusion.” Id. (citation
omitted). “The issue is not whether we, as an original matter, would have imposed
the same sanction as the circuit court; it is whether the circuit court exceeded its
discretion in imposing the sanction it did.” Id. (citation omitted). Whether the
representations to the court violated § 802.05(2) “requires factual findings, and we
accept factual findings made by the [circuit] court unless they are clearly
erroneous.” Wisconsin Chiropractic Ass’n v. Chiropractic Examining Bd., 2004
WI App 30, ¶¶16, 33 n.12, 269 Wis. 2d 837, 676 N.W.2d 580.
¶49 First, Mavity claims that the Village “falsely accused [him] of
forgery and Mavity was sanctioned by the circuit court.” Mavity presents a
“summary of argument” on this point, asserting that the court
erroneously exercised its discretionary authority when it
awarded monetary sanctions against Mavity because he
requested an evidentiary hearing on his motion for
sanctions against [counsel for the Village] and served a
subpoena for the Village Clerk to testify at the evidentiary
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Nos. 2022AP1173
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hearing as to whether the handwriting on the certificate at
issue was hers or Mavity’s.
However, this assertion was more than a summary; it was Mavity’s entire
argument on this matter, and he fails to return to the issue in his reply.
¶50 Initially, we note that Mavity failed to identify for this court where
in the records we could find the circuit court’s decision on this issue.15 It is not
our responsibility to search the records in support of Mavity’s argument.
See Grothe, 239 Wis. 2d 406, ¶6. Regardless, Mavity’s argument is completely
undeveloped, and we therefore decline to address it. See Pettit, 171 Wis. 2d at
646-47.
¶51 Second, Mavity argues that Sanctions Motions 1 and 2 and the
circuit court’s award of monetary sanctions were time barred by Ten Mile
Investments, LLC v. Sherman, 2007 WI App 253, 306 Wis. 2d 799, 743 N.W.2d
442. Mavity also claims that the court’s sanctions award was an erroneous
exercise of discretion. We disagree in both respects.
¶52 The Village filed Sanctions Motions 1 and 2 pursuant to WIS. STAT.
§ 802.05, which describes the responsibilities of counsel and pro se litigants when
making representations to the court. See § 802.05(2). Sanctions are discretionary
and may be awarded where an attorney violates one or more of the responsibilities
described in § 802.05(2). Sec. 802.05(3). Importantly, the party seeking sanctions
15
The Village identified the circuit court’s order and explained that the court’s decision
involved Meixner’s motion for sanctions against the Village. At a hearing, the court denied
Meixner’s motion and ordered that he pay fees and costs under WIS. STAT. § 802.05(3), not
because Meixner asked for an evidentiary hearing but because the court found his motion
frivolous. The court issued an award of attorney’s fees for the Village and found that Meixner
and Mavity would be jointly liable for the award.
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must first provide notice to the offending party that it would seek sanctions for a
violation of the statute and the reasons why (the so-called “safe-harbor
provision”). See § 802.05(3)(a)1.; Ten Mile, 306 Wis. 2d 799, ¶5. Notice is
provided by serving the offending party with the motion without also
simultaneously filing the motion with the circuit court. Sec. 802.05(3)(a)1. If the
offending party does not withdraw or correct the offending document, then the
party must wait at least twenty-one days before filing the motion with the court.
Id. As long as proper notice was given, the court has the authority to “impose an
appropriate sanction upon the attorneys, law firms, or parties that have violated
sub. (2) or are responsible for the violation.” Sec. 802.05(3).
¶53 It is undisputed that the Village followed the proper procedure for
providing Meixner and Mavity with notice, that Meixner and Mavity did not
withdraw or correct the offending documents,16 and that the Village did not file the
motions with the circuit court until the twenty-one-day safe-harbor period had
passed.17 Mavity argues, however, that pursuant to a statement in Ten Mile, a
“postjudgment sanctions motion does not comply with the safe-harbor provision”
of WIS. STAT. § 802.05. See Ten Mile, 306 Wis. 2d 799, ¶16. We disagree and
find Ten Mile readily distinguishable.
¶54 The offending party in Ten Mile was not served pursuant to the
safe-harbor provision with a motion prior to the judgment, see id., ¶¶16-18, while
16
We note that the Village asserts that “Meixner withdrew some references to criminal
statutes in his counterclaims, but chose to keep some in.”
17
Sanctions Motion 1 was served on December 30, 2019, and Sanctions Motion 2 was
served on May 20, 2022. The Village did not file either motion in the circuit court until June 17,
2022, which is more than the twenty-one-day safe-harbor window.
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Meixner and Mavity were properly served with the motions well before judgment
was entered, see Veit v. Frater, No. 2018AP442, unpublished slip op. ¶40
(WI App May 29, 2019). Here, unlike in Ten Mile, Meixner and Mavity did not
receive an “informal warning”; they were provided “service of a motion.”
See Ten Mile, 306 Wis. 2d 799, ¶18 (citation omitted).18 Further, we agree with
the Village that a court may not be able to determine the propriety of sanctions for
frivolous claims without first addressing the substance of those claims. Thus,
requiring service of sanctions motions before judgment—to possibly weed out
frivolous claims—but not requiring the filing of those motions before judgment is
not unreasonable under the statute, nor does the statute specifically prohibit it.
See WIS. STAT. § 802.05; cf. Leske v. Leske, 185 Wis. 2d 628, 630-34, 517
N.W.2d 538 (Ct. App. 1994) (reasoning that subsequent litigation regarding costs
and fees does not defeat finality of an order or judgment). Thus, we conclude that
Sanctions Motions 1 and 2 were not untimely.
¶55 Mavity next argues that the circuit court’s award of sanctions against
him was an erroneous exercise of discretion. In support of this proposition, he
states that
[Sanctions] Motion 1 is a duplicate of the same issues and
claims of frivolous actions by [Mavity] that had been
served or filed at least four times in the past two and
one/half years and each time denied by the [c]ourt.
Specifically, Motion 1, which was filed on [June 17, 2022],
18
Importantly, this issue was discussed during the circuit court’s oral ruling on the
sanctions motions, and the court reached the same conclusion we have above. Within that
discussion, the court noted that it was “troubled” because “[i]t seems like [Mavity] located [Ten
Mile Investments, LLC v. Sherman, 2007 WI App 253, 306 Wis. 2d 799, 743 N.W.2d 442], cited
it, but did not analyze it. And [was] wanting it to mean something that it actually doesn’t mean.”
This comment is important because Mavity fails to present an argument on appeal for why Ten
Mile is not distinguishable, despite the court’s warning. He simply cites the case without any
discussion and does not address the issue in his reply.
29
Nos. 2022AP1173
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with the same date, same attorneys’ signatures and the
same claims (each long ago resolved) is identical to the
motion for sanctions of December 30, 2019.
Mavity cites Milwaukee Women’s Medical Service, Inc. v. Scheidler, 228
Wis. 2d 514, 598 N.W.2d 588 (Ct. App. 1999), for the proposition that “[b]ecause
‘the exercise of discretion is not the equivalent of unfettered decision-making,’ the
record on appeal must reflect the circuit court’s reasoned application of the
appropriate legal standard to the relevant facts in the case.” Id. at 524-25 (citation
omitted). He argues that the court’s grant of Sanctions Motion 1 is the “equivalent
of unfettered decision-making.”
¶56 Again, Mavity’s argument is entirely undeveloped. Although he
argues that the Village had previously filed, and the circuit court had previously
denied, the same claims multiple times, Mavity has not identified where in the
records we could find either those filings or the court’s decisions. Thus, we are
unable to review his argument. See Grothe, 239 Wis. 2d 406, ¶6; see also Dunkel,
927 F.2d at 956. Nevertheless, we postulate that Mavity may actually be confused
by the operation of the safe-harbor provision of WIS. STAT. § 802.05. He states
that Sanctions Motion 1, “filed [June 17, 2022,]” is “identical” to the “motion for
sanctions of December 30, 2019.” This fact would make sense because Sanctions
Motion 1 was served on Mavity on December 30, 2019, but it was not filed with
the circuit court until June 17, 2022—providing a substantial safe-harbor period.
Therefore, it is “identical” because it is the same motion.
¶57 Thus, Mavity has not explained how he believes that the circuit court
erroneously exercised its discretion by granting Sanctions Motions 1 and 2.
30
Nos. 2022AP1173
2022AP1528
See Pettit, 171 Wis. 2d at 646-47. Given that the motions were timely filed and
Mavity fails to show that the court erred, we affirm.19
VI. Village’s Motion for Sanctions for a Frivolous Appeal
¶58 Before this court, the Village filed a motion for costs and attorney’s
fees pursuant to WIS. STAT. § 802.05 and WIS. STAT. RULE 809.25(3) against
Mavity and/or Meixner for filing a frivolous appeal.20 The Village argues that if
we affirm the circuit court’s order granting Sanctions Motions 1 and 2 in appeal
No. 2022AP1528, then the Village is entitled to its reasonable attorney’s fees and
costs defending against that appeal. In other words, the Village is asking that we
not only affirm the circuit court’s sanction awards, but that we also award the
costs and fees it incurred in defending those awards through this appeal. The
Village recognizes, however, legal authority stating that to award attorney fees for
19
To the extent that Meixner or Mavity may have raised other issues in their briefs that
we have not addressed, we conclude that any such issues are insufficiently developed, such that
we cannot identify them, much less address them.
20
Mavity submitted a twenty-five-page response to the Village’s nine-page motion. The
Village, thereafter, filed a motion for leave to file a reply, to strike, or, in the alternative, for oral
argument based on its claim that Mavity’s response “includes many arguments that speak to the
merits of the sanctions against Mavity (and Mr. Meixner) in the [circuit] court” but “Mavity (or
Meixner) did not include these robust (although flawed) arguments in their brief.” The Village
explained that due to the filing requirements under WIS. STAT. RULE 809.25, “the Village will
have no opportunity to respond to these issues.” We agreed with the Village and granted the
motion to strike portions of Mavity’s response, explaining that
whether the Village is entitled to costs and fees against Mavity
on his appeal of a sanction award depends solely upon whether
Mavity prevails on the issues raised on appeal. Arguments
related to portions of the sanction award not addressed in the
parties’ briefs therefore have no bearing on the question of costs
and fees on appeal.
Accordingly, we denied the Village’s requests to file a reply brief or for oral argument.
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Nos. 2022AP1173
2022AP1528
a frivolous appeal, we must conclude that the entire appeal is frivolous.
See Howell v. Denomie, 2005 WI 81, ¶9, 282 Wis. 2d 130, 698 N.W.2d 621. In
that event, the Village argues that the entire appeal is frivolous given Meixner’s
irrelevant, undeveloped, conclusory, and confusing arguments, as well as
Meixner’s numerous failures under WIS. STAT. RULE 809.19.
¶59 Whether an appeal is frivolous is a question of law. Howell, 282
Wis. 2d 130, ¶9. “Since the standard is objective, an appellate court looks to what
a reasonable party or attorney knew or should have known under the same or
similar circumstances.” Id.¶60 Under WIS. STAT. RULE 809.25(3)(a), if this court finds an appeal to
be frivolous, we “shall award to the successful party costs, fees, and reasonable
attorney fees.” The award may be assessed against the appellant, the attorney for
the appellant, or both, equally. RULE 809.25(3)(b). An appeal is frivolous under
RULE 809.25(3)(a) if we “find one or more of the following”: (1) “The
appeal … was filed, used or continued in bad faith, solely for purposes of
harassing or maliciously injuring another”; or (2) “The party or the party’s
attorney knew, or should have known, that the appeal … was without any
reasonable basis in law or equity and could not be supported by a good faith
argument for an extension, modification or reversal of existing law.”
RULE 809.25(3)(c).
¶61 We begin with appeal No. 2022AP1528. There, as noted above, the
circuit court granted Sanctions Motions 1 and 2 based on its conclusion that
Mavity’s conduct was frivolous, and we affirm that determination. See supra ¶57.
This court has previously stated:
[U]pon an appeal from a ruling of frivolousness, the
reviewing court need not determine whether the appeal
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Nos. 2022AP1173
2022AP1528
itself is frivolous before it can award appellate costs and
reasonable attorney’s fees. Rather, if the claim was
correctly adjudged to be frivolous in the [circuit] court, it is
frivolous per se on appeal.
Riley v. Isaacson, 156 Wis. 2d 249, 262, 456 N.W.2d 619 (Ct. App. 1990).
Consequently, we held “that a party prevailing in the defense of an award of fees
under [WIS. STAT. §] 802.05 is also entitled to a further award on appeal without a
finding that the appeal itself is frivolous under [WIS. STAT.] RULE 809.25(3).”
Riley, 156 Wis. 2d at 263. Mavity does not respond to this argument on appeal.
We therefore conclude that because Mavity unsuccessfully challenged the court’s
finding of frivolousness in appeal No. 2022AP1528, Mavity should be sanctioned
for filing the frivolous appeal.
¶62 As to appeal No. 2022AP1173, we conclude that Meixner’s entire
consolidated appeal is frivolous and that Meixner and Mavity should have
known—based on the records in these cases and the arguments they advanced in
the circuit court and before this court previously—that no reasonable basis exists,
in either fact or law, to support their positions on appeal. Without rehashing each
individual argument above, we observe that we fail to resolve the vast majority of
the arguments on the merits. Instead, we conclude that Meixner and/or Mavity fail
to develop an argument on the issues, that their arguments are irrelevant, or that
Meixner and/or Mavity fail to present evidence from the records in support of their
claims. Even where Meixner and/or Mavity could have addressed or developed
issues on reply, they overwhelmingly failed to do so.
¶63 To the extent Meixner’s claim regarding Ten Mile and the timing of
the sanctions motions could be considered nonfrivolous given existing case law,
we disagree. As noted, see supra note 18, Mavity was warned by the circuit court
that he needed to “analyze” that case, not just cite it. Nevertheless, Mavity fails to
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Nos. 2022AP1173
2022AP1528
present an argument on appeal—let alone a good faith argument—for an extension
of Ten Mile to the facts of this case. See Wisconsin Chiropractic Ass’n, 269
Wis. 2d 837, ¶16 (“[T]he issue of whether a legal theory is justified by existing
law or a good faith argument for a change in the law presents a question of law,
and our review on this issue is therefore de novo.”).
¶64 Overall, as an experienced attorney,21 Mavity should have known
that the arguments on appeal were without any reasonable basis in law or equity
given his failure to abide by basic rules of appellate practice. See WIS. STAT.
RULE 809.83(2). Thus, we find Meixner and Mavity’s entire appeal frivolous.
We therefore remand the matter to the circuit court to determine the amount of
costs, fees, and reasonable attorney fees incurred by the Village in responding to
Meixner and Mavity’s appeal and to issue an award accordingly.22
By the Court.—Judgment and order affirmed and cause remanded
with directions.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
21
Mavity makes a point to identify his legal experience to this court.
22
Within the Village’s motion for costs and attorney’s fees, the Village argues that it
should also recover fees for its defense of the circuit court’s fine issued on July 23, 2021, as
Mavity challenges this award on appeal. See supra ¶¶49-50 & n.15. Based on the records, it is
clear that the court found Meixner’s motion for sanctions against the Village to be frivolous, and
Mavity unsuccessfully challenged that conclusion on appeal. Accordingly, we agree and direct
the circuit court to include this issue in its determination of appellate fees incurred by the Village.
34