Scott Schmidt v. Tamika Wilson

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.
May 25, 2021
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. 2019AP1314 Cir. Ct. No. 2018CV517

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

SCOTT SCHMIDT AND CHERYL SCHMIDT,

PLAINTIFFS-RESPONDENTS,

V.

TAMIKA WILSON AND ROBERT L. ELLIOTT,

DEFENDANTS-APPELLANTS.

APPEAL from a judgment of the circuit court for Eau Claire
County: SARAH MAE HARLESS, 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).
No. 2019AP1314

¶1 PER CURIAM. Tamika Wilson and Robert Elliott (collectively
“Wilson”), pro se, appeal from a judgment of foreclosure on a land contract. We
affirm.

BACKGROUND

¶2 On October 4, 2017, Wilson entered into a land contract with Scott
and Cheryl Schmidt for the purchase of real property in Eau Claire with a purchase
price of $359,900. The land contract required a $2,000 payment at execution,
$2,000 monthly payments thereafter, interest accrued at six percent annually, and
that the entire balance due under the contract was to be paid in full by no later than
October 1, 2018. Full payment was not timely made, and Wilson also failed to
pay the real estate taxes as required by the contract.

¶3 The Schmidts commenced the present foreclosure action. The
following day, the Schmidts sought a temporary injunction preventing Wilson
from entering the property. At the injunction hearing, the circuit court found that
Wilson had abandoned the property after approximately six months, and that the
electricity had been shut off for nonpayment. The court also found that when the
Schmidts accessed the property, they found damage to the property. Three toilets
were full to the brim with human waste, with the smell being described as
horrendous. Furniture was also broken and abandoned, and debris was left on the
premises. Approximately ten fist holes were found punched into the drywall. All
of this constituted a default of the land contract provisions, which provided that
Wilson “shall not commit waste nor allow waste to be committed on the Property,
keep the Property in good tenantable condition and repair ….”

¶4 The circuit court granted the temporary injunction and dismissed a
subsequent motion for reconsideration. In response to Wilson’s complaints that

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the notice of hearing for the injunction did not specify that it was an evidentiary
hearing and that Cheryl Schmidt was allowed to testify without notice, the court
invited Wilson’s attorney to bring a motion to vacate the temporary injunction and
present additional testimony or other evidence, but he did not do so. Wilson also
sought to dismiss the foreclosure action, which was denied.

¶5 The Schmidts then sought summary judgment on the foreclosure.
Following a hearing, the circuit court found the legal requirements for a real estate
conveyance had been met under WIS. STAT. § 706.02 (2019-20).1 The court also
determined that Wilson was in default on the land contract, and it entered a
judgment setting forth the amount due on the land contract. The court provided a
fourteen-day redemption period by which Wilson was to pay the full amount due
or the right, title and interest in the property would be confirmed to the Schmidts.2
Wilson now appeals.

DISCUSSION

¶6 Wilson argues the circuit court erroneously exercised its discretion
in granting injunctive relief to the Schmidts, which forbade Wilson from entering
the property.3 Because we conclude, as discussed below, that the court properly
granted summary judgment in favor of the Schmidts on the merits of the

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
Apparently, the redemption period has long passed, and Wilson did not obtain a stay
pending her appeal of the circuit court’s order.

Wilson uses the phrase “abuse of discretion.” In 1992, our supreme court replaced the
3

phrase “abuse of discretion” with the phrase “erroneous exercise of discretion.” See Shirk v.
Bowling, Inc., 2001 WI 36, ¶9 n.6, 242 Wis. 2d 153, 624 N.W.2d 375.

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foreclosure action, the injunction issue is moot, as it will have no practical effect
on an existing controversy. See PRN Assocs. LLC v. DOA, 2009 WI 53, ¶25, 317
Wis. 2d 656, 766 N.W.2d 559. In this regard, we note that Wilson failed to file a
reply brief in this court, and therefore she did not attempt to address the Schmidts’
argument regarding mootness. Arguments not refuted are deemed admitted.
Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279
N.W.2d 493 (Ct. App. 1979).

¶7 Regarding the merits of the foreclosure action, Wilson frames the
issue as an erroneous denial of her motion to dismiss the foreclosure action for
failure to state a claim upon which relief may be granted, under WIS. STAT.
§ 802.06. Wilson’s arguments, however, essentially cover that decision as well as
the circuit court’s later grant of summary judgment.

¶8 Wilson argued in the circuit court that the dismissal of a prior
foreclosure action filed by the Schmidts for lack of proper service of process
mandated dismissal of the present case. In the previous action, a motion to vacate
a judgment of foreclosure was granted because the Schmidts were unable to obtain
personal service upon Wilson. The Schmidts attempted service by publication, but
they incorrectly published the original summons, not a publication summons. The
court had entered a default judgment of foreclosure, but it granted Wilson’s
motion to vacate the judgment because the Schmidts had failed to invoke the
court’s jurisdiction. The case was dismissed without prejudice, which resulted in
the Schmidts commencing the present foreclosure action.

¶9 As part of the motion to dismiss in the present case, Wilson argued
that because a judgment had been entered in the prior case, the Schmidts were
precluded from commencing the present case by the doctrine of claim preclusion.

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Timely service of process was never obtained in the prior foreclosure action,
however, and the prior judgment was thus void as a matter of law. A judgment
that is void is of no legal effect as a judgment. Neylan v. Vorwald, 124 Wis. 2d
85, 99, 368 N.W.2d 648 (1985). Accordingly, the void judgment was a legal
nullity, and it cannot provide the basis for an argument for claim preclusion as
there was no action pending prior to or at the time the present foreclosure action
was commenced, and no final judgment on the merits. See Kruckenberg v.
Harvey, 2005 WI 43, ¶21, 279 Wis. 2d 520, 694 N.W.2d 879.

¶10 We also note that, on appeal, Wilson fails to adequately develop her
claim preclusion argument, and we will not abandon our neutrality to develop
arguments for her. See M.C.I., Inc. v. Elbin, 146 Wis. 2d 239, 244-45, 430
N.W.2d 366 (Ct. App. 1988). In any event, it is inconsistent to argue that the prior
foreclosure action had not been commenced due to insufficient service, but yet it
was “operative” so as to mandate dismissal of the present case because of the
preclusive effect of the prior judgment. Such a change of position would be
prohibited by judicial estoppel, which is used to prevent litigants from playing fast
and loose with the judicial system by taking inconsistent positions during
litigation. See State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817 (1996).

¶11 Whether to invoke judicial estoppel is within the discretion of the
circuit court. State v. Fleming, 181 Wis. 2d 546, 558, 510 N.W.2d 837 (Ct. App.
1993). Here, we conclude the court properly exercised its discretion by invoking
judicial estoppel. The court reasoned:

Regarding the motion to dismiss, this is also a first for me,
seeing a motion to dismiss based on a prior case that was
never commenced. I mean, there was never service, it was
not commenced, it’s a void judgment, which means it has
no—it’s—it’s not a case, it has just no anything under the
law, and so I—I can’t see how—how a void judgment

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could possibly be a basis for a motion to dismiss. In
addition, it was [Wilson] who argued that that motion [sic]
was never commenced, that it was void, so to now argue
that it somehow has legal effect is frankly confusing and
also would give rise to judicial estoppel. So for those
reasons, I am also denying the motion to dismiss.

¶12 Wilson also argues that the Schmidts’ claims are non-justiciable.
First, Wilson contends the Schmidts have no interest recognizable by law because
they seek to enforce an unenforceable land contract. The land contract is
unenforceable, according to Wilson, because it was improperly acknowledged by a
notary whose commission had expired, without all parties being involved.4 In this
regard, Wilson asserts fraud in the inducement, which rendered the land contract
voidable. Wilson further contends that these “deficiencies in the land contract
have resulted in the appellants not [being able] to register the property with the
county [register of] deed[s].”

¶13 It is untenable for Wilson to argue that the land contract is
unenforceable because it was acknowledged by a notary whose commission had
expired. WISCONSIN STAT. § 706.02 requires that a real estate conveyance contain
five basic elements. As the circuit court recognized, there is no dispute that the
land contract identified the parties, identified the land, identified the interest being
conveyed, was signed by the parties, and was delivered—thus satisfying the five
requirements of § 706.02. There is no requirement that the signatures be notarized
in order for a land contract to evidence a valid conveyance of real estate as
between the parties themselves. That the notary’s commission may have expired

4
Wilson’s argument regarding “without all parties being involved” is undeveloped, and
we shall not further address it. See M.C.I., Inc. v. Elbin, 146 Wis. 2d 239, 244-45, 430 N.W.2d
366 (Ct. App. 1988).

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does not affect the fact that the requirements of § 706.02 were met and a valid
conveyance occurred.

¶14 Moreover, the fact that the land contract was not recorded—or was
not in a form that could be recorded—does not raise a genuine issue of material
fact. By the terms of the land contract itself, when the balance was paid in full and
the land contract otherwise fully satisfied, there was to be a warranty deed issued
by the Schmidts to Wilson. It is that document that would need to comply with
WIS. STAT. § 706.05, such that it could be recorded with the register of deeds,
giving public notice of the transaction. There was no requirement to record the
land contract itself.

¶15 Still, Wilson has a bigger problem in the present case. If we could
somehow assume the land contract was unenforceable, Wilson would then have no
rights in relation to the property whatsoever. There is no other contract or
document upon which Wilson has based a claim to possess the property, or that
dispossesses the Schmidts. Wilson’s argument that the land contract is invalid
eviscerates any factual or legal basis on which any claim to the property could be
made. The circuit court’s judgment could be affirmed on that basis alone. See
Liberty Trucking Co. v. DILHR, 57 Wis. 2d 331, 342, 204 N.W.2d 457 (1973).

By the Court.—Judgment affirmed.

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

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