Ali H. Mardan v. Ingie Mardan

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 26, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP333 Cir. Ct. No. 2018CV723

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

ALI H. MARDAN AND MARY K. MARDAN,

PLAINTIFFS-APPELLANTS,

V.

INGIE MARDAN,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Brown County:
JOHN ZAKOWSKI, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, 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. Ali and Mary Mardan (collectively, the Mardans)
appeal an order that dismissed their declaratory judgment claims against their
No. 2019AP333

former daughter-in-law, Ingie Mardan (Ingie). We conclude the circuit court
properly dismissed the Mardans’ claims on the grounds that they were not ripe for
adjudication. We further conclude the Mardans have failed to show that they were
prejudiced by the court’s consultation with the judge who presided over the
divorce action terminating Ingie’s marriage to the Mardans’ son, or by the court’s
consideration of certain documents not of record in this case, but filed in the
divorce action. We therefore affirm.

BACKGROUND

¶2 The following facts are undisputed. The Mardans own a duplex in
the Town of Ledgeview in Brown County. Ingie was married to the Mardans’ son
Aydin, and she and Aydin resided in the duplex together. The Mardans did not
agree to convey any ownership interest in the duplex to Ingie, and no written
instrument conveying such an ownership interest exists.

¶3 Aydin ultimately filed for divorce from Ingie in Brown County. In
the divorce action, Ingie asserted in her financial disclosure statement that she had
an ownership interest in the duplex.

¶4 The Mardans believed that Ingie’s assertion of ownership in the
divorce proceedings placed a cloud on their title to the duplex. As a result, they
filed the instant lawsuit under WIS. STAT. §§ 806.04 and 841.01 (2017-18),1
seeking a declaration that they owned the duplex and that Ingie had no ownership
interest in that property. Ingie filed an answer to the Mardans’ complaint, in

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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which she acknowledged that the Mardans were the record owners of the duplex.
However, Ingie asserted as an affirmative defense that she and Aydin had acquired
a legal interest in the duplex during the time that they resided there.

¶5 The Mardans served Ingie with written discovery, including requests
for admissions. Ingie did not respond to the requests for admissions. She was
therefore deemed to have admitted that: (1) the Mardans purchased the duplex;
(2) Ingie did not purchase the duplex or have any deed to the duplex; (3) the
Mardans never agreed to sell or otherwise convey any interest in the duplex to
Ingie; (4) the Mardans paid real estate taxes on the duplex from 2010 through
2018; and (5) Ingie did not pay real estate taxes on the duplex during any of those
years. See WIS. STAT. § 804.11(1)(b) (stating that a request for admission is
deemed admitted if the party to whom it is directed fails to timely respond).

¶6 The Mardans subsequently filed a motion for declaratory and/or
summary judgment. On the same day, Ingie filed a motion to dismiss the
Mardans’ complaint. In support of that motion, she cited WIS. STAT. § 806.04(6),
which provides that a court “may refuse to render or enter a declaratory judgment
or decree where such judgment or decree … would not terminate the uncertainty
or controversy giving rise to the proceeding.” Ingie explained:

The Plaintiffs’ claim is based upon the underlying divorce
proceedings involving their son, Aydin Mardan, and the
residence where Aydin Mardan and the Defendant, Ingie
Mardan[,] previously resided together. On August 31,
2018, the Honorable Tammy Jo Hock entered an order
divorcing the parties and dividing the parties’ marital
property. Subsequent to the entry of that order, the
Defendant does not … reside at the property at issue in this
case, does not claim to have any interest in the residence at
issue in this case, nor does she have any legal recognizable
interest in the property. As such, there is no need for a
declaratory judgment as sought by the Plaintiffs and alleged
in their complaint, because there is no uncertainty or

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controversy over who owns the property. As such, under
[§] 806.04(6), the Defendant moves to dismiss this action,
on its merits, with prejudice and with costs.

¶7 The circuit court granted Ingie’s motion to dismiss and denied the
Mardans’ motion for declaratory and/or summary judgment during a hearing on
November 9, 2018. Before announcing its decision, the court indicated that it had
spoken to Judge Hock and had considered certain documents that were filed in the
divorce action—specifically, Ingie’s financial disclosure statement and emails
between Aydin and Mary Mardan. The court also observed that Judge Hock had
found in the divorce action that Ingie had no interest in the duplex.

¶8 Ultimately, the circuit court reasoned that the prerequisites for
granting a declaratory judgment were not satisfied because the Mardans’ claims
were no longer ripe for adjudication.2 The court explained there was “[no]
question that [Ingie] doesn’t have an interest … in the property today” and,
accordingly, there was no longer any “controversy” regarding the ownership of the
property for the court to resolve. When asked to clarify the basis for its ruling, the
court stated, “I’m finding that under both [WIS. STAT. §§ 806.04 and 841.01] there
is no need for a declaratory—that a declaratory judgment would not be
appropriate[,] and that’s the reason for the Court granting the motion to dismiss.”
The Mardans now appeal.

2
A claim that is no longer ripe for adjudication could also be considered moot. In this
case, both the parties and the circuit court addressed the viability of the Mardans’ claims as a
matter of ripeness, rather than mootness. We therefore do the same.

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DISCUSSION

I. Dismissal of the Mardans’ claims

¶9 On appeal, the Mardans first argue that the circuit court erred by
granting Ingie’s motion to dismiss because the allegations in their complaint were
legally sufficient to state a claim under both WIS. STAT. §§ 806.04 and 841.01.
The Mardans then argue that the court erred by denying their motion for
declaratory and/or summary judgment because “[t]he admitted allegations of the
Complaint coupled with [Ingie’s] deemed admissions” were sufficient to establish,
as a matter of law, “that Ingie has never had an interest in” the duplex.

¶10 We assume without deciding that the allegations in the Mardans’
complaint were legally sufficient to state a claim. Nevertheless, we conclude the
circuit court properly dismissed the Mardans’ claims based on its determination
that they were not ripe for adjudication.

¶11 When a party moves for summary judgment, as the Mardans did
here, the court may grant summary judgment to the opposing party, even though
that party did not file a summary judgment motion. See WIS. STAT. § 802.08(6).
In this case, the circuit court essentially concluded that Ingie was entitled to
summary judgment because the undisputed facts established that the Mardans’
claims were not ripe. We independently review a grant of summary judgment,
using the same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI
App 264, ¶6, 306 Wis. 2d 513, 743 N.W.2d 843. A party is entitled to summary
judgment if there are no genuine issues of material fact and the undisputed facts
show that the party is entitled to judgment as a matter of law. See WIS. STAT.
§ 802.08(2).

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¶12 Whether to grant or deny declaratory relief lies within the circuit
court’s discretion. Olson v. Town of Cottage Grove, 2008 WI 51, ¶35, 309
Wis. 2d 365, 749 N.W.2d 211. However, a court must be presented with a
justiciable controversy before it may exercise its jurisdiction over a declaratory
judgment claim. Id., ¶28. Four factors must be satisfied in order for a declaratory
judgment claim to be deemed justiciable. Id., ¶29. Only the fourth factor is at
issue here—i.e., whether the issue involved in the controversy is ripe for judicial
determination. Id. Ripeness presents a question of law that we review
independently.3 Id., ¶38.

¶13 A declaratory judgment claim may be ripe even though the plaintiff
has not yet suffered an actual injury. Id., ¶43. Nevertheless, the facts must be
“sufficiently developed to allow a conclusive adjudication,” so that the court may
avoid entangling itself in an abstract disagreement. Id. In other words, “[t]he
facts on which the court is asked to make a judgment should not be contingent or
uncertain.” Id.

¶14 Here, we agree with the circuit court that by the time of the
November 9, 2018 hearing, the Mardans’ claims against Ingie were no longer ripe

3
Olson v. Town of Cottage Grove, 2008 WI 51, ¶27, 309 Wis. 2d 365, 749 N.W.2d 211,
dealt with a declaratory judgment claim under WIS. STAT. § 806.04. In this case, the Mardans
asserted declaratory judgment claims under both § 806.04 and WIS. STAT. § 841.01. The circuit
court dismissed both of those claims on ripeness grounds.

In their brief-in-chief on appeal, the Mardans do not raise any argument that the ripeness
requirement discussed in Olson is not applicable to their WIS. STAT. § 841.01 claim. In their
reply brief, the Mardans advance a two-sentence argument that even if their § 806.04 claim is not
ripe, the court should not have dismissed their § 841.01 claim on ripeness grounds. We decline to
address this argument because it is underdeveloped, unsupported by legal authority, and raised for
the first time in the Mardans’ reply brief. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d
475, 492, 588 N.W.2d 285 (Ct. App. 1998); State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d
633 (Ct. App. 1992).

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for adjudication. On appeal, it is undisputed that by the date of the hearing, Ingie
was no longer claiming an ownership interest in the duplex. Accordingly, the
parties’ interests were no longer adverse at that time. Thus, by granting the
Mardans a declaratory judgment, the circuit court would have merely entangled
itself in an abstract disagreement based on hypothetical or contingent facts. See
id. The court therefore properly determined that the Mardans’ claims were no
longer ripe.

¶15 The Mardans nevertheless assert that the circuit court should have
entered a judgment declaring that Ingie had never had an ownership interest in the
duplex at any point in the past. However, the Mardans do not explain what
purpose such a declaration would have served. They contend that Ingie’s assertion
of ownership during the divorce action created a “cloud on the title [to the duplex]
for the period of claimed ownership.” If such a cloud was created, it no longer
existed at the time of the November 9 hearing, as Ingie no longer claimed an
ownership interest in the property at that time. The Mardans do not explain why
the court should have entered a declaratory judgment in order to remove a
nonexistent cloud on the duplex’s title. Moreover, the purpose of a declaratory
judgment action is to provide prospective, rather than remedial, relief. PRN
Assocs. LLC v. DOA, 2009 WI 53, ¶53, 317 Wis. 2d 656, 766 N.W.2d 559.

¶16 We therefore reject the Mardans’ argument that the circuit court
should have entered a judgment declaring that Ingie never had an ownership
interest in the duplex. We instead conclude that the court properly dismissed the
Mardans’ declaratory judgment claims against Ingie because those claims were no
longer ripe for adjudication.

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II. Consultation with Judge Hock and consideration of documents from
the divorce case

¶17 The Mardans also argue that we should reverse the order dismissing
their claims because the circuit court’s decision was “influenced by an
impermissible discussion” with Judge Hock and by the court’s improper
consideration of documents filed in the divorce case. The Mardans cite
SCR 60.04(1)(g), which states that, subject to certain exceptions, a judge “may not
initiate, permit, engage in or consider ex parte communications concerning a
pending or impending action.” The Mardans also cite a comment to
SCR 60.04(1)(g), which provides that a judge “must not independently investigate
facts in a case and must consider only the evidence presented.” SCR 60.04(1)(g)
(comment).

¶18 In response, Ingie argues that the circuit court’s communication with
Judge Hock was permissible under one of the exceptions to the general rule
against ex parte communications, which provides that a judge “may consult with
other judges or with court personnel whose function is to aid the judge in carrying
out the judge’s adjudicative responsibilities.” SCR 60.04(1)(g)3. Ingie also cites
Johnson v. Mielke, 49 Wis. 2d 60, 75, 181 N.W.2d 503 (1970), in which our
supreme court stated, “Generally, a court may take judicial notice of its own
records and proceedings for all proper purposes. This is particularly true when the
records are part of an interrelated or connected case, especially where the issues,
subject matter, or parties are the same or largely the same.” Based on Johnson,
Ingie argues the circuit court could properly take judicial notice of documents filed
in the divorce case.

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¶19 Regardless of whether the circuit court violated SCR 60.04(1)(g) by
consulting with Judge Hock and considering documents filed in the divorce case,
the Mardans have failed to establish that they were prejudiced by those actions. A
party alleging that an ex parte communication has occurred bears the burden of
showing that the communication caused prejudice to a material degree. See
Seebach v. PSC, 97 Wis. 2d 712, 721, 295 N.W.2d 753 (Ct. App. 1980).
“[M]aterial error occurs when a party not notified of an ex parte communication is
prejudiced by the inability to rebut facts presented in the communication and
where improper influence upon the decision-making appears with reasonable
certainty.” Id.

¶20 The alleged errors here did not materially prejudice the Mardans.
During the November 9, 2018 hearing, the circuit court notified the parties that it
had consulted with Judge Hock and had reviewed documents from the divorce
case. The Mardans did not raise any objection that the court’s consultation with
Judge Hock was an improper ex parte communication, nor did they argue that the
court was prohibited from considering documents filed in the divorce proceedings.
Furthermore, the Mardans did not seek clarification regarding the court’s
consultation with Judge Hock or the documents from the divorce case that it
considered, nor did they attempt to rebut any information that the court obtained
from those sources. Under these circumstances, the Mardans cannot argue that
they were “prejudiced by the inability to rebut” any ex parte information that the
court considered. See id. The record indicates that they had the opportunity to
rebut the information, but they declined to do so.

¶21 In addition, the Mardans have not demonstrated “with reasonable
certainty” that the ex parte information considered by the circuit court had any
effect on its ultimate decision that dismissal was proper because the Mardans’

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claims were no longer ripe for adjudication. See id. The court noted Judge Hock
had found that Ingie had no interest in the duplex. However, Ingie herself had
already conceded in the instant case that she had no such ownership interest. The
court also stated that Ingie’s financial disclosure form in the divorce action
“list[ed] [the duplex] as an asset of hers.” Again, it is undisputed that by the time
of the November 9 hearing Ingie was no longer claiming an ownership interest in
the duplex. Finally, while the court considered unspecified emails between Aydin
and Mary Mardan, the Mardans do not explain why they were prejudiced by any
information contained in those emails. We therefore reject the Mardans’ argument
that reversal is warranted based on the court’s ex parte consultation with Judge
Hock or its consideration of documents filed in the divorce case.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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