Timothy L. Hoeller v. Catherine Jorgens

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.
February 16, 2022
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. 2021AP1470 Cir. Ct. No. 2021SC1653

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

TIMOTHY L. HOELLER,

PLAINTIFF-APPELLANT,

V.

CATHERINE JORGENS,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Waukesha County:
MICHAEL O. BOHREN, Judge. Affirmed.

¶1 NEUBAUER, J.1 Timothy L. Hoeller appeals a circuit court order
dismissing his small claims action against Catherine Jorgens, General Counsel of

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(a) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2021AP1470

Carroll University. To summarize, Hoeller seems to argue that “this cause is not
frivolous” and, as a result, the court erred in dismissing it. We affirm.

¶2 Hoeller filed a small claims complaint in Waukesha County Circuit
Court alleging that Jorgens was liable for damages for “failure to act,” seemingly
referring to negligence, and “acting after an unreasonable delay,” which he also
referred to as “laches.” To support these claims, Hoeller alleged that Jorgens was
liable to him under the theories of negligence and laches by providing a report
summarizing student evaluations of Hoeller’s teaching at Carroll University to the
Wisconsin Equal Rights Division (“ERD”) during the course of an ERD
investigation of Hoeller’s dismissal from the university. Jorgens moved to dismiss
the complaint for violating a circuit court order that prohibited Hoeller from filing
documents with the Waukesha County Circuit Court2 and failing to state a claim.
On July 23, 2021, the circuit court dismissed the action without prejudice, finding
that it was a continuation of an earlier case that had been dismissed and was
pending on appeal, and that the filing of the complaint violated the court order
prohibiting filings pending appeal.

¶3 We first observe that Hoeller’s principal brief on appeal, which is
fifty-two pages long, lacks citation to the record. Such failure is a clear violation
of WIS. STAT. RULE 809.19(1)(d) of the rules of appellate procedure, which

2
The Hon. William J. Domina entered the order prohibiting Hoeller from filing
additional documents with the circuit court in that earlier case, Waukesha County Case
No. 19CV995, while Hoeller’s appeal of that dismissal was pending before this court. This court
subsequently issued a decision summarily affirming the circuit court’s dismissal of that action.
Hoeller v. Carroll University, No. 2020AP227, unpublished op. and order (WI App Nov. 24,
2021). Hoeller has filed a petition for review with our supreme court in that matter, which is
currently pending.

The Hon. Michael O. Bohren filed the dismissal order at issue in this appeal.

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No. 2021AP1470

requires the appellant to set out facts “relevant to the issues presented for review,
with appropriate references to the record.” We have held that where a party fails
to comply with the rule requiring adequate record cites, “this court will refuse to
consider such an argument ....” See Tam v. Luk, 154 Wis. 2d 282, 291 n.5, 453
N.W.2d 158 (Ct. App. 1990) (citation omitted). As such, we are not required, nor
are we even in a position, to review the facts that are relevant to Hoeller’s
arguments, because none of them contain appropriate record references. See
Keplin v. Hardware Mut. Cas. Co., 24 Wis. 2d 319, 324, 129 N.W.2d 321 (1964)
(this court is not required to sift through the record for facts); Meyer v.
Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957) (an appellate court is
improperly burdened where briefs fail to consistently and accurately cite to the
record).

¶4 In addition to Hoeller’s failure to accurately cite to the record, his
briefing also fails to sufficiently develop discussion as to the circuit court’s
rationale for dismissing Hoeller’s complaint. Thus, it is difficult to determine
what Hoeller purports to be arguing in this appeal and whether he is actually
challenging the circuit court’s dismissal in No. 19CV995 or the one currently
before this court. A party’s “[f]ailure to address the grounds on which the circuit
court ruled constitutes a concession of the ruling's validity.” Sands v. Menard,
2016 WI App 76, ¶52, 372 Wis. 2d 126, 887 N.W.2d 94, aff’d, 2017 WI 110, 379
Wis. 2d 1, 904 N.W.2d 789; accord West Capitol, Inc. v. Village of Sister Bay,
2014 WI App 52, ¶49, 354 Wis. 2d 130, 848 N.W.2d 875.

¶5 As explained above, Hoeller’s brief is in violation of the rules of
appellate procedure in that it fails to provide adequate citations to the record, and

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No. 2021AP1470

fails to sufficiently develop arguments as to why the circuit court’s basis for the
dismissal was erroneous.3

By the Court.—Order affirmed.

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

3
On February 4, 2022, Hoeller filed an “Interim Motion for Reconsideration” with this
court, which we hereby deny.

4