Eland Fisheree LLC v. Jennifer Brennan

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 21, 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. 2020AP45 Cir. Ct. No. 2019SC316

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

ELAND FISHEREE LLC, JAMES STOLTZ, CYNTHIA VANLANEN AND
DENISE LARSON,

PLAINTIFFS-RESPONDENTS,

V.

JENNIFER BRENNAN, ALLEN P. OSTERBRINK AND ELAND FISHEREE,

DEFENDANTS-APPELLANTS.

APPEAL from a judgment of the circuit court for Shawano County:
JAMES R. HABECK, Judge. Affirmed in part; reversed in part and cause
remanded with directions.

¶1 HRUZ, J.1 Jennifer Brennan, Allen Osterbrink, and Eland Fisheree
(collectively, the defendants) appeal from a $10,690.90 small claims judgment in
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All
references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2020AP45

favor of Eland Fisheree LLC (the LLC), James Stoltz, Cynthia VanLanen, and
Denise Larson (collectively with the LLC, the plaintiffs).2 This dispute arose after
the plaintiffs took control of an informal organization that coordinated an annual
fishing event in Eland, Wisconsin.3 After taking control, the plaintiffs filed this
small claims action to recover funds from the former leaders of the informal
group—the defendants. The circuit court found that the plaintiffs successfully
created a successor organization to coordinate the fishing event, and that they were
entitled to their requested damages along with costs.

¶2 On appeal, the defendants argue that the circuit court lacked
sufficient evidence to find the defendants liable; that it erroneously exercised its
discretion in denying their motion to reconsider; and that we should reverse in the
interest of justice. We conclude that sufficient evidence existed for the court to
find the defendants liable; however, the evidence only supported an award of
$9,960.99 in damages and costs. We also conclude that the court did not
erroneously exercise its discretion in effectively denying the motion to reconsider,
nor is discretionary reversal appropriate in this case. We therefore affirm the

2
We generally prefer to reference parties by name, rather than by party designation—
just as the parties are required to do in their briefs pursuant to WIS. STAT. RULE 809.19(1)(i). For
purposes of this appeal, however, the party designations provide the most clarity.
3
For additional clarity, we refer to this informal organization as “the informal group.”
As we later explain, the circuit court reasonably found that the plaintiffs successfully created a
successor organization to this informal group when they elected new leadership and created the
LLC. The court never found that the informal group split into two groups. The informal group
and the LLC are thus one and the same, but each represents a different period of time in the
group’s history.

Additionally, although we use the word “informal” to describe the informal group, we
note that the informal group did obtain an employer identification number from the Internal
Revenue Service. The parties also appear to agree that the informal group operated under the
Uniform Unincorporated Nonprofit Association Act, WIS. STAT. ch. 184.

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judgment in part, reverse in part, and remand for the court to modify the judgment
to $9,960.99 in damages and costs.

BACKGROUND

¶3 The Eland Fisheree is a long-running, annual fishing event
promoting the sport of fishing in the community. In 2015, the informal group
assumed responsibility for organizing the event, and Allen Osterbrink and Jennifer
Brennan were informally appointed as the president and treasurer of the group,
respectively. Some of the informal group’s pre-event responsibilities included
seeking donations, buying food and prizes, obtaining permits to stock a local pond
with fish, and advertising the event. As treasurer, Brennan considered herself “the
grunt worker,” purchasing most of the supplies throughout the year and storing
those supplies in her home.

¶4 Sometime around 2017, some members of the informal group began
requesting financial reports and receipts from Brennan and Osterbrink. One
member in particular, Cynthia VanLanen, sought records because she wanted to be
transparent with donors regarding how donations were spent. At different times,
Brennan provided receipts, a bank statement, and a spreadsheet to VanLanen.

¶5 In early 2019, the informal group struggled to schedule a meeting
time that accommodated all of the members interested in discussing the 2019
event. VanLanen eventually took it upon herself to schedule the meeting, and she
posted on her Facebook page that the informal group’s meeting was scheduled for
February 26, 2019, to elect officers, review “financials,” and consider ideas for the
2019 event. Approximately nineteen people attended the February 26 meeting,
but Brennan and Osterbrink were absent. Those in attendance, with the exception
of two people, voted to elect new officers to lead the informal group. James Stoltz

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and Denise Larson were elected to serve as the president and treasurer of the
informal group, respectively. Some attendees also expressed a desire to form an
LLC with bylaws. Larson later filed paperwork to form the LLC.

¶6 Following the February 26, 2019 meeting, Stoltz and Larson went to
Banner Bank and requested that the informal group’s existing bank account be
updated to include them as signatories. After producing documentation of the
February 26 vote, the bank complied with their request. The next day, Osterbrink
and Brennan went to Banner Bank and asked to close the informal group’s
account. Brennan told the bank that “the [February 26] meeting was illegal.” The
bank eventually agreed to close the account and to issue a money order for
$7,867.43 to “Eland Fisheree and Denise Larson, Treasurer.” The money order
was then given to Brennan and Osterbrink.

¶7 After learning about the money order, the LLC demanded that the
defendants return the money order to Banner Bank. When the defendants failed to
comply, the plaintiffs filed this small claims action. In addition to seeking the
bank account funds, the plaintiffs also sought reimbursement for other “accounting
discrepancies.” The plaintiffs alleged that the defendants converted funds
belonging to the LLC and that the defendants were unjustly enriched by retaining
funds donated for the Eland Fisheree event.

¶8 The case proceeded to a bench trial on September 26, 2019. The
plaintiffs called four witnesses: a Banner Bank employee, Osterbrink, Brennan
and VanLanen. The defendants subsequently cross-examined the bank employee
and VanLanen, but they did not have an opportunity to question Brennan or
Osterbrink. During the defendants’ cross-examination of VanLanen, the circuit
court stopped the defendants’ attorney, stating that “[w]e’re going to have to close

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this out soon …. We’re at 4:32 ….” The defendants’ attorney responded, “I don’t
think that we’re going to get through my witnesses today.” The court then replied
that they were not going to have another day of trial, but that the parties may
submit “offers of proof” that demonstrate what “could be shown at trial in terms of
facts.” The court set a briefing schedule for the parties to submit their arguments
and stated that it would issue a written decision. After the court explained the
posttrial procedures, the defendants’ attorney stated, “Sounds good. Thank you.”

¶9 The parties submitted affidavits, additional exhibits, and briefs with
their respective arguments. The circuit court then issued a written decision
granting judgment in favor of the plaintiffs. The court found that the informal
group “never had any type of bylaws or organizational document” and that
“[w]hile there was some form of historical precedent, … there w[ere] no
organizational rules that were violated” because “there were no rules.” It further
found that the plaintiffs “successfully created a successor organization” after
conducting “a majority vote of those present at the [February 26, 2019] meeting,
which is in no way contrary to the methodology used previously, based upon
testimony.” The court adopted the plaintiffs’ calculation of damages and awarded
$10,000 in damages and $690.90 in costs.4 The defendants filed a motion to

4
The circuit court specifically adopted the damages “shown on page 4” of the plaintiffs’
letter brief. This letter brief, however, is not a part of the appellate record. As the appellants in
this case, the defendants were responsible for ensuring that the record is complete, and we
therefore assume that the missing letter brief supports the court’s decision. See Fiumefreddo v.
McLean, 174 Wis. 2d 10, 26-27, 496 N.W.2d 226 (Ct. App. 1993). We nevertheless believe that
the awarded damages are accurately reflected on “Exhibit C” to Denise Larson’s affidavit, which
is in the record. The plaintiffs calculated their damages to be $13,873.70, comprised
of: (1) $7,867.43 for the bank account funds; (2) $4,315.37 for unauthorized cash withdrawals
and purchases; (3) $1,000 for cash in a safe; and (4) $690.90 in various fees. The defendants do
not challenge the fees on appeal. This calculation of damages is also consistent with the
defendants’ arguments on appeal.

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reconsider, but the court never ruled on that motion. The defendants now appeal.
Additional facts are provided below.

DISCUSSION

¶10 As an initial matter, we address the defendants’ reoccurring
argument throughout their appellate briefs that the affidavits and documents
submitted as “offers of proof” did not constitute admissible evidence. The
defendants argue that the circuit court never admitted these affidavits into
evidence, that the offers of proof show “issues of fact,” and that the case was
never fully tried. In response, the plaintiffs argue that the defendants waived any
claim regarding the court’s posttrial procedures for accepting evidence. In
particular, the plaintiffs point out that the defendants did not object to the court’s
procedures until after the court granted judgment in favor of the plaintiffs.

¶11 Although the defendants continue to argue in their reply brief that
the circuit court could not rely on the affidavits as evidence, the defendants do not
respond to the plaintiffs’ waiver argument. The defendants therefore concede this
argument. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d
97, 108-09, 279 N.W.2d 493 (Ct. App. 1979). In any event, we agree that the
defendants waived any claim regarding the court’s posttrial procedures for
accepting additional evidence, including by affidavit, and its reliance on such
evidence. To avoid waiver, litigants must object contemporaneously with the
purported error at trial. WIS. STAT. § 805.11(1). There are no exceptions to this
requirement. Sec. 805.11(3).

¶12 The defendants did not object to the circuit court’s decision to end
the trial testimony, nor did they object to the court’s request that the parties submit
offers of proof demonstrating what further evidence could be shown. In fact, they

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acquiesced. Upon learning of the court’s proposed posttrial procedures, the
defendants’ attorney simply stated, “Sounds good. Thank you.” The defendants
first took issue with these procedures in their motion to reconsider. But by failing
to object when the court explained the posttrial procedures and before the court
entered judgment, the defendants waived any claim regarding these procedures.

I. Sufficiency of the evidence

¶13 The defendants begin by arguing that the evidence did not support
the circuit court’s findings that they converted funds or that they were unjustly
enriched. The sufficiency of evidence is a question of law that we review de novo.
Lemke v. Lemke, 2012 WI App 96, ¶28, 343 Wis. 2d 748, 820 N.W.2d 470. In
the instant case, the court did not specifically discuss how its factual findings
related to the elements of conversion or unjust enrichment. Nevertheless, when
the record does not include a specific finding on an issue, we will assume that the
circuit court resolved the issue in a manner that supports the final judgment or
order. See Freund v. Nasonville Dairy LLC, 2019 WI App 55, ¶39, 389 Wis. 2d
35, 934 N.W.2d 913. Furthermore, we will not set aside a circuit court’s findings
of fact unless they are clearly erroneous, and we must give “due regard” to the
court’s opportunity “to judge the credibility of the witnesses.” WIS. STAT.
§ 805.17(2). If more than one inference can be drawn from the evidence, we
accept the inference drawn by the circuit court sitting as the fact finder. Freund,
389 Wis. 2d 35, ¶41.

¶14 The defendants assert that the bank account funds are “the heart of
this case.” They do not advance any argument, however, that the plaintiffs were
not otherwise entitled to those funds. Indeed, it is unclear whether the defendants
even intended to challenge on appeal the circuit court’s finding regarding the bank

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account funds. We nevertheless address the issue in the interest of being complete
and because the plaintiffs briefed the issue.

¶15 The circuit court found that the plaintiffs “successfully created a
successor organization” after conducting “a majority vote of those present at the
[February 26, 2019] meeting, which is in no way contrary to the methodology
used previously, based upon testimony.” Although the court recognized some
historical precedent for the informal group’s operations, the court found that the
plaintiffs did not violate any organizational rules because no rules existed.

¶16 The circuit court’s findings in this regard are not clearly erroneous.
Brennan testified at trial that the informal group had no policies, procedures,
bylaws or operating agreements. Although she testified that the informal group
usually made phone calls to give notice of meetings, she agreed that no policy or
procedure existed regarding how notice must be given. VanLanen testified that
she scheduled a meeting for the informal group on February 26, 2019, posting
notices on her Facebook page and in public spaces. VanLanen further testified
that the people who attended the February 26 meeting constituted a majority of the
informal group’s members and that those members elected new officers and
decided to create the LLC during that meeting. Finally, Brennan agreed during
her testimony that the informal group’s actions were generally dictated by the
majority consent of the members.

¶17 The evidence therefore supported the circuit court’s findings that
VanLanen provided sufficient notice to schedule a meeting and hold an election;
that the members of the informal group elected new leadership; and that the
members agreed to formalize the informal group by creating the LLC. These
findings also support the court’s ultimate finding that the plaintiffs “successfully

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created a successor organization”—i.e., the informal group became the LLC, with
Stoltz and Larson as officers. As the successor organization, the LLC was thus the
rightful owner of all property and claims that previously belonged to the informal
group, including funds in the informal group’s existing account at Banner Bank.

¶18 After finding that the Banner Bank funds belonged to the LLC, the
circuit court had an evidentiary basis to determine that the defendants converted
those funds. A party is liable for conversion when he or she (1) intentionally
controls or takes property belonging to another, (2) without the owner’s consent,
(3) resulting in serious interference with the owner’s rights to possess the property.
Midwestern Helicopter, LLC v. Coolbaugh, 2013 WI App 126, ¶9, 351 Wis. 2d
211, 839 N.W.2d 167.

¶19 Sufficient evidence existed to support each of these elements. First,
it is undisputed that the defendants intentionally controlled $7,867.43 that
belonged to the LLC by obtaining the money order from Banner Bank. Second,
the LLC updated the signatories on the Banner Bank account before the
defendants obtained the money order, and it then demanded the return of the funds
after learning of the money order, which supports a finding that the LLC did not
consent to the defendants’ control over the funds. Finally, the evidence supported
a finding that the defendants’ control over the $7,867.43 resulted in a serious
interference with the LLC’s right to possess the funds because the LLC was
unable to use the funds for the 2019 Eland Fisheree event.

¶20 The defendants may have believed that the February 26, 2019
meeting was illegal and that they were rightfully entitled to the funds.
Conversion, however, does not require proof of “wrongful intent or knowledge
that what is being taken rightfully belongs to another.” See Bruner v. Heritage

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Cos., 225 Wis. 2d 728, 736-37, 593 N.W.2d 814 (Ct. App. 1999). Thus, sufficient
evidence existed for the circuit court to conclude that the defendants converted
$7,867.43 that belonged to the LLC.

¶21 The defendants next argue that the plaintiffs failed to produce
sufficient evidence that Brennan retained $1,000 from the informal group in her
personal safe. Specifically, the defendants take issue with Larson’s statement in
her affidavit that the defendants held what she was told was approximately $1,000
in a private safe. The defendants argue that this affidavit is not proper evidence
and that Larson failed to provide any foundation for her statement, other than
hearsay from an unknown source. We need not decide whether the circuit court
could rely on Larson’s assertion, however, because sufficient trial testimony
supports the court’s finding that Brennan retained $1,000 from the informal group.

¶22 Brennan admitted at trial that she had previously kept some of the
informal group’s cash in her personal safe. Although she testified that she put all
of that cash back into the informal group between 2017 and 2018, the circuit court
was entitled to find her testimony incredible. See WIS. STAT. § 805.17(2).
Osterbrink testified that Brennan held cash belonging to the informal group in a
safe at her home. Despite being uncertain how much cash was in the safe, he did
not reject the notion that it could be $1,000. Osterbrink also agreed that there
were still funds belonging to the informal group in a private safe on the day of
trial. Finally, VanLanen testified unequivocally on cross-examination that
Brennan kept $1,000 cash from the informal group in her home safe. The
defendants’ attorney did not ask any follow-up questions regarding the basis for
VanLanen’s knowledge.

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¶23 The record thus supports the circuit court’s finding that Brennan
retained $1,000 from the informal group in her personal safe. Although Brennan’s
testimony conflicted with this finding, the court stated in its decision that to the
extent contrary testimony had been submitted, the court’s findings of fact reflected
its findings as to credibility.

¶24 Sufficient evidence also existed for the circuit court to conclude that
Brennan would be unjustly enriched if permitted to keep the $1,000. A party is
liable for unjust enrichment when: (1) the plaintiff conferred a benefit upon the
defendant; (2) the defendant had an appreciation or knowledge of the benefit; and
(3) the defendant accepted or retained the benefit under circumstances making it
inequitable for the defendant to retain the benefit without payment of its value.
Buckett v. Jante, 2009 WI App 55, ¶10, 316 Wis. 2d 804, 767 N.W.2d 376. First,
the evidence supported the court’s finding that the LLC, as the successor
organization, conferred a benefit upon Brennan because it allowed her, as the
treasurer, to keep $1,000 on hand to make purchases for the group. Second, the
evidence showed that Brennan knew of this benefit because she knew the money
belonged to the informal group and because she knew the money was to be used
for the benefit of the group. Third, the evidence supported the finding that
Brennan retained the benefit of the $1,000 under inequitable circumstances
because Brennan ceased acting as the treasurer of the informal group when its
members elected a new treasurer, and Brennan refused to turn over the funds to
the new treasurer.

¶25 Finally, the defendants argue insufficient evidence existed for the
circuit court to award $4,315.37 in damages for unauthorized cash withdrawals
and purchases. The defendants again contend that Larson’s affidavit is not proper
evidence, and therefore the court could not rely on her statements contained

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therein. The defendants further argue that no other evidence supports a finding
that they made unauthorized cash withdrawals and purchases in the amount of
$4,315.37. Although the defendants waived any claim that affidavits do not
constitute evidence, we agree that the record contains insufficient evidence to hold
the defendants liable for unauthorized cash withdrawals and purchases in the
amount of $4,315.37. Rather, the record only supports $402.66 in such damages.5

¶26 Larson averred in her affidavit that attached bank statements showed
“unauthorized cash withdrawals and purchases,” totaling $4,315.37. The plaintiffs
provided minimal explanation, however, regarding where that money went or
whom that money benefited. At trial, plaintiffs’ Exhibit 8 was a document
prepared by the defendants, explaining many of the alleged unauthorized cash
withdrawals and purchases. That document asserted that $402.66 of the informal
group’s funds had no corresponding receipts and was therefore unaccounted. In
reference to Exhibit 8, Brennan admitted that $402.66 was unaccounted for, but
the plaintiffs did not question her further regarding the cash withdrawals and
purchases discussed therein.

¶27 VanLanen later testified that she was not aware of any purchases that
Brennan made that were unacceptable from her point of view. Nor could she
identify any specific instance in which Brennan used the informal group’s funds to
enrich herself. Although VanLanen testified, and Brennan admitted, that Brennan

5
One could argue—though the defendants have not—that the “safe money” damages
and the damages for unauthorized cash withdrawals overlap—i.e., that cash in the safe came from
the unauthorized cash withdrawals. The circuit court must have found that these damages were
indeed separate because it adopted the plaintiffs’ calculation that separated these damages.
Because the defendants have not raised any argument regarding this finding, we need not
consider it further. See Madely v. RadioShack Corp., 2007 WI App 244, ¶22 n.8, 306 Wis. 2d
312, 742 N.W.2d 559 (we need not consider undeveloped arguments).

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occasionally purchased soda for her personal use with the informal group’s funds,
VanLanen was unsure how much Brennan spent on soda.

¶28 Sufficient evidence existed for the circuit court to conclude that the
defendants converted $402.66. The court could reasonably find that: (1) the
defendants had control over those funds when they made cash withdrawals and
purchases; (2) the informal group did not consent to these cash withdrawals and
purchases because they were “unauthorized;” and (3) the defendants’ inability to
account for the $402.66 suggests that the defendants’ control over this sum
substantially interfered with the informal group’s right to possess such funds. See
Midwestern Helicopter, 351 Wis. 2d 211, ¶9.

¶29 Brennan asserted in an affidavit after trial that she thought she used
“the $400” to purchase printer ink for the informal group. The circuit court
apparently found this assertion to be incredible, however, and it had a basis to do
so. Brennan could not provide an explanation for the unaccounted $402.66 during
her trial testimony. Moreover, Brennan admitted to using the informal group’s
funds, without the group’s approval, to occasionally purchase soda for herself.
Although occasional soda purchases may not add up to $402.66, they do show that
Brennan was willing to use the informal group’s funds for her own benefit.

¶30 Beyond the unaccounted $402.66, however, the record on appeal
contains no evidence that the allegedly unauthorized cash withdrawals or
purchases were not otherwise available to the informal group or were not used for
the benefit of the group. The plaintiffs relied on Exhibit 8 to show that there were
unaccounted for funds, but the plaintiffs failed to rebut the defendants’
explanations regarding the other unauthorized cash withdrawals and purchases.
Without such evidence, the plaintiffs failed to establish that the defendants

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retained any benefit above $402.66 from the informal group—much less under
inequitable circumstances. See Buckett, 316 Wis. 2d 804, ¶10. Similarly, the
plaintiffs failed to show that the defendants’ control of the funds resulted in a
serious interference with the informal group’s right to possess the group’s property
beyond the $402.66 in unaccounted funds. See Midwestern Helicopter, 351
Wis. 2d 211, ¶9. The plaintiffs thus failed to prove damages above $402.66 to the
requisite reasonable certainty. See Novo Industrial Corp. v. Nissen, 30 Wis. 2d
123, 131, 140 N.W.2d 280 (1966).

¶31 In sum, sufficient evidence existed to support the circuit court’s
conclusions that: (1) the defendants converted $7,867.43 from the LLC’s bank
account; (2) the defendants were unjustly enriched by $1,000 kept in Brennan’s
personal safe; and (3) the defendants converted $402.66 when they made
unauthorized cash withdrawals and purchases. In addition to the $690.90 in fees
that the defendants do not challenge on appeal, the plaintiffs’ damages and costs
total $9,960.99. We therefore affirm the judgment in part, reverse in part, and
remand for the circuit court to reduce the judgment by $729.91.

II. The defendants’ motion to reconsider

¶32 The defendants next argue that the circuit court erred when it denied
their motion to reconsider.6 We review a circuit court’s decision on a motion for

6
The plaintiffs contend that the circuit court never denied the defendants’ motion to
reconsider because the court lost jurisdiction after the defendants filed their notice of appeal. We
disagree. Regardless of whether an appeal is pending, a circuit court may act on a motion for
reconsideration filed under WIS. STAT. § 805.17(3). See WIS. STAT. § 808.075(1). Here, the
court had the power to act on the defendants’ motion to reconsider after the notice of appeal was
filed. Because the court did not issue a decision on the motion within ninety days, the motion is
considered denied. See § 805.17(3).

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reconsideration under the erroneous exercise of discretion standard. Koepsell’s
Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd., 2004
WI App 129, ¶6, 275 Wis. 2d 397, 685 N.W.2d 853.

¶33 Citing WIS. STAT. § 799.215, the defendants contend that the circuit
court failed to apply the proper legal standards because it failed to make specific
findings of fact regarding conversion and unjust enrichment. Section 799.215
provides that “[u]pon a trial of an issue of fact by the court, its decision … shall
state separately the facts found and the conclusions of law thereon; and judgment
shall be entered accordingly.”

¶34 Even if we assume that the circuit court failed to comply with WIS.
STAT. § 799.215, the court did not commit reversible error by failing to do so in
this case. In Hochgurtel v. San Felippo, 78 Wis. 2d 70, 253 N.W.2d 526 (1977),
our supreme court discussed WIS. STAT. § 270.33 (1973)—a statute that contained
identical language to the relevant language at issue in § 799.215. See Hochgurtel,
78 Wis. 2d at 84-85 n.6. The court explained that the statute protects the rights of
the litigants and facilitates review of the record by an appellate court. Id. at 85.
The court recognized, however, that “[t]he failure to state separate findings of fact
and conclusions of law is not necessarily reversible error.” Id. at 86. The court
concluded that it could “affirm a judgment if a review of the record demonstrates
that the trial court reached a result which the evidence would sustain if there was a
specific finding.” Id.

¶35 As we discussed above, the record here contains sufficient evidence
to support the conclusion that the defendants are liable for $9,960.99 in damages.
Additional and more specific findings by the circuit court may have aided in our
review of this case, but the court’s failure to make such findings is not reversible

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error alone. We therefore cannot conclude that the court erroneously exercised its
discretion in denying the defendants’ motion to reconsider.

III. New trial in the interest of justice

¶36 Finally, the defendants argue that we should use our discretionary
reversal power to reverse the circuit court’s judgment and grant a new trial in the
interest of justice. We may exercise our discretionary reversal power where it
appears from the record that the real controversy has not been fully tried, or that it
is probable that justice has for any reason miscarried. WIS. STAT. § 752.35. The
defendants summarily contend that the real controversy has not fully been tried
and that a probable miscarriage of justice has occurred because the court did not
allow them to present evidence. The defendants also contend in their reply brief
that the plaintiffs did not address, and have therefore conceded, this argument.

¶37 We are not persuaded that the plaintiffs conceded this argument.
First, the defendants’ two-paragraph “interest of justice” argument was couched
within their argument regarding the sufficiency of the evidence; it was not
addressed separately in their appellate brief and communicated to the plaintiffs as
a separate issue on appeal. Second, the plaintiffs’ waiver argument directly
addressed the basis for the defendants’ interest of justice argument—i.e., that the
circuit court denied the defendants an opportunity to present evidence.

¶38 Regardless, whether a party has conceded an argument on appeal is a
decision that lies within our discretion. See Charolais, 90 Wis. 2d at 108-09.
Here, we decline to deem the defendants’ interest of justice argument conceded.
We exercise our discretionary reversal power only in exceptional cases, and this is
not such an exceptional case. See State v. McKellips, 2016 WI 51, ¶52, 369
Wis. 2d 437, 881 N.W.2d 258. As discussed above, the defendants waived any

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argument regarding their ability to fully try the matter. Further, the record shows
that the real controversy has been fully tried because the circuit court had the
opportunity to examine the defendants’ affidavits and supporting documents that
bear on the significant issues in this case. See State v. Maloney, 2006 WI 15, ¶14
n.4, 288 Wis. 2d 551, 709 N.W.2d 436. Finally, the defendants have not shown a
probable miscarriage of justice because they have failed to establish “a substantial
probability of a different result on retrial.” See id. In short, discretionary reversal
is not appropriate in this case.

¶39 No costs are awarded to either party.

By the Court.—Judgment affirmed in part; reversed in part and cause
remanded with directions.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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