Gregory A. Thompson v. Todd Skarban

OFFICE OF THE CLERK
WISCONSIN COURT OF APPEALS
110 EAST MAIN STREET, SUITE 215
P.O. BOX 1688
MADISON, WISCONSIN 53701-1688
Telephone (608) 266-1880
TTY: (800) 947-3529
Facsimile (608) 267-0640
Web Site: www.wicourts.gov
DISTRICT III
November 25, 2025
To:
Hon. Jay N. Conley
Circuit Court Judge
Electronic Notice
Trisha LeFebre
Clerk of Circuit Court
Oconto County Courthouse
Electronic Notice
Beth L. Ellingson
Electronic Notice
Ronald S. Stadler
Electronic Notice
Gregory A. Thompson
Electronic Notice
You are hereby notified that the Court has entered the following opinion and order:
2023AP2250 Gregory A. Thompson v. Todd Skarban
(L. C. No. 2023CV140)
Before Stark, P.J., Hruz, and Gill, JJ.
Summary disposition orders 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).
Gregory A. Thompson appeals the circuit court’s order dismissing his petition for a writ
of mandamus. Thompson sought an order compelling Oconto County Sheriff Todd Skarban to
enforce a circuit court order resolving a riparian-rights dispute and compelling Skarban to
enforce trespass laws. Based upon our review of the briefs and record, we conclude at
conference that this case is appropriate for summary disposition. See WIS. STAT. RULE 809.21

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(2023-24).1 We conclude that Thompson has not shown that he is entitled to a writ of
mandamus, and therefore we affirm.
On April 18, 2011, the circuit court entered an order resolving a riparian-rights dispute
over an accreted beach/berm area on Wheeler Lake. The order declared that the area was “open
and available for use” to six named riparian owners and “not open and not available for use by
the general public.” Thompson later acquired two of the relevant parcels. Thompson asserts that
on July 1, 2023, his neighbors Jill and Michael Herberg, who were not among the six owners,
entered the area, refused to leave, and asserted that they were on land owned by the Department
of Natural Resources. Thompson called the Oconto County Sheriff’s Office, complaining that
his neighbors were committing trespass. Deputy Steven Kessler responded, but he determined
that the dispute was civil in nature and took no further law enforcement action.
Thompson petitioned for a writ of mandamus, arguing that Skarban had a positive and
plain duty to enforce the April 18, 2011 circuit court order and the county trespass ordinance
against the Herbergs. Skarban moved to dismiss the petition. After a hearing, the court
dismissed the petition with prejudice, concluding that Thompson had failed to establish the legal
standards required for the issuance of a writ of mandamus. Thompson then filed this appeal.
“Mandamus is an extraordinary legal remedy.” Lake Bluff Hous. Partners v. City of S.
Milwaukee, 197 Wis. 2d 157, 170, 540 N.W.2d 189 (1995). “A writ of mandamus is a
discretionary writ that is issued to compel the performance of a particular act by a lower court or
1 All references to the Wisconsin statutes are to the 2023-24 version.

No. 2023AP2250
3
governmental officer or body.” Klein v. DOR, 2020 WI App 56, ¶36, 394 Wis. 2d 66, 949
N.W.2d 608.
A writ of mandamus will issue only if the petitioner establishes the following four
criteria: (1) that they have a clear, specific legal right, which is free from substantial doubt, to the
action sought; (2) that the duty sought to be enforced is positive and plain; (3) that substantial
damage will result if the duty is not performed; and (4) that there is no other adequate remedy at
law. State ex rel. Zignego v. WEC, 2021 WI 32, ¶38, 396 Wis. 2d 391, 957 N.W.2d 208. “We
will uphold a circuit court’s grant or denial of a writ of mandamus unless the circuit court
erroneously exercised its discretion.” State ex rel. Coogan v. Mishek, 2020 WI App 37, ¶14,
392 Wis. 2d 885, 945 N.W.2d 752 (citation omitted). “A circuit court’s ‘discretion in issuing a
writ of mandamus is erroneously exercised if [it is] based on an erroneous understanding of the
law.’” Id. (citation omitted).
Turning to the first criterion, Thompson must show that he has a clear, specific legal right
to the action he seeks, which is to have Skarban enforce a prior court order to which Thompson
was not a party and/or to prosecute the Herbergs for trespassing. See State ex rel. Collins v.
American Fam. Mut. Ins. Co., 153 Wis. 2d 477, 483, 451 N.W.2d 429 (1990). According to the
petition and attached exhibits, the Herbergs stated that they had a deed permitting them to use the
beach area. Oconto County Zoning Office records were inconclusive as to whether the Herbergs
had a right to walk on the trail at issue to the beach area. The Oconto County corporation
counsel stated that there may be a prescriptive easement on the pathway leading to the beach.
Thompson’s petition does not show that he has an exclusive right to the area, nor does it show
that the Herbergs had no right to use the area. Thompson is not entitled to mandamus relief
because he has not shown that he has a clear legal right to the action he seeks.

No. 2023AP2250
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As to the second criterion, mandamus will not lie unless the petition is seeking to enforce
a plain and positive duty. Galuska v. Kornwolf, 142 Wis. 2d 733, 738, 419 N.W.2d 307 (Ct.
App. 1987). The duty “must be clear and unequivocal, not discretionary.” Id. Although sheriffs
have a constitutional duty to maintain law and order and preserve the peace, Milwaukee Deputy
Sheriffs’ Ass’n v. Milwaukee County, 2016 WI App 56, ¶9, 370 Wis. 2d 644, 883 N.W.2d 154,
the performance of those duties is committed to each sheriff’s discretion, see Klein, 394 Wis. 2d
66, ¶41. “[I]n the area of criminal and civil investigative and enforcement activities, government
actors invariably employ discretion so as to make those activities not amenable to mandamus
relief absent a statute compelling a specific action under a specific set of facts.” Id. Because
Skarban exercised his discretionary authority in determining the dispute here to be civil in
nature, Thompson has not shown that Skarban had a positive and plain legal duty.
Thompson argues that Skarban had a positive and plain duty under Coogan. Thompson’s
reliance on Coogan is misplaced. In that case, we held that a sheriff did not have discretion to
disregard an order granting Huber release privileges to an inmate because the legislature defined
the limited instances when a sheriff can or cannot grant Huber privileges in WIS. STAT. § 303.08.
Coogan, 392 Wis. 2d 885, ¶2. We therefore concluded that the sheriff had a positive and plain
duty to grant Huber release to the defendant. Id. Here, however, there is no equivalent statute.
As to the third criterion, Thompson must show that the alleged temporary trespass will
cause him substantial damages if Skarban is not ordered to enforce the court order and/or enforce
trespass laws against the Herbergs. Thompson has alleged that the Herbergs have used the
disputed area to walk their dogs and have pulled out their chairs to sit for a while. A trespasser
who has not damaged the property is generally liable only for nominal damages, as opposed to
substantial damages. See Munger v. Seehafer, 2016 WI App 89, ¶24, 372 Wis. 2d 749, 890

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N.W.2d 22. Thompson is not entitled to mandamus relief because he has not shown that he will
suffer substantial damages if relief is not granted.
As to the fourth criterion, Thompson has not shown that he has no other adequate legal
remedies. Thompson could ask the circuit court for a declaratory judgment. See Local 1111 of
United Elec., Radio & Mach. Workers v. Allen-Bradley Co., 255 Wis. 613, 617, 39 N.W.2d 740
(1949) (stating that the ability to ask a court for declaratory judgment constitutes an adequate
remedy at law). Thompson could also bring an action for contempt or to enforce the terms of a
court order. The availability of these remedies provides an adequate remedy at law and
precludes mandamus relief.
Upon the foregoing,
IT IS ORDERED that the order is summarily affirmed pursuant to WIS. STAT.
RULE 809.21.
IT IS FURTHER ORDERED that this summary disposition order will not be published.
Samuel A. Christensen
Clerk of Court of Appeals