Greg Griswold v. Kenda Tisdale

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.
January 20, 2023
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. 2022AP1385 Cir. Ct. No. 2021SC71

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

GREG GRISWOLD,

PLAINTIFF-APPELLANT,

V.

KENDA TISDALE,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Grant County:
ROBERT P. VAN DE HEY, Judge. Affirmed.

¶1 BLANCHARD, P.J.1 Greg Griswold, pro se, appeals an August 2,
2022 order of the circuit court requiring Griswold to pay the $94.50 filing fee to

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. 2022AP1385

initiate this small claims action and $87.50 for the preparation of a transcript of
proceedings.2 I affirm for reasons explained in the Discussion section below.

BACKGROUND

¶2 In January 2021, Griswold filed a complaint with attached
correspondence to initiate this small claims action. Griswold claims that he is
entitled to a money judgment of $504.99 based on Kenda Tisdale’s alleged
violation of WIS. STAT. § 90.03 for failing to “compensate Griswold the sum of at
least $304.99” for cost of material necessary for Griswold to build a fence and
“$200 for Griswold’s labors expended in completing” the fence.3

2
Griswold’s appellate briefing contains many assertions that are difficult to understand
as a legal argument or as part of a legal argument. Any argument that I do not specifically
address is denied because it is inadequately briefed and lacks discernable merit; I cannot attempt
to develop legal arguments on his behalf. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d
633 (Ct. App. 1992) (court need not consider inadequately developed arguments). I explain in a
concluding footnote the numerous issues that I need not reach, whether or not Griswold has
presented developed arguments regarding those issues.
3
WISCONSIN STAT. § 90.03 is entitled “Partition fences; when required” and provides in
its entirety:

The respective occupants of adjoining lands used and
occupied for farming or grazing purposes, and the respective
owners of adjoining lands when the lands of one of such owners
is used and occupied for farming or grazing purposes, shall keep
and maintain partition fences between their own and the
adjoining premises in equal shares so long as either party
continues to so occupy the lands, except that the occupants of the
lands may agree to the use of markers instead of fences, and such
fences shall be kept in good repair throughout the year unless the
occupants of the lands on both sides otherwise mutually agree.

“Chapter 90 of the Wisconsin Statutes regulates partition fences on farming and grazing land as
defined in the chapter,” and, more specifically, “provides fencing specifications, requires
adjoining landowners to share costs, and provides dispute-resolution procedures for these
landowners.” White v. City of Watertown, 2017 WI App 78, ¶¶1-2, 378 Wis. 2d 592, 904
N.W.2d 374.

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No. 2022AP1385

¶3 The complaint includes the following allegations. Griswold resides
at 637 West Pine Road, Muscoda. Tisdale resides next door at 611 West Pine
Road, Muscoda. Griswold is “the primary person negotiating with” Tisdale
regarding a fence, which Griswold claims to have erected, “demarking the
property line existing between Griswold’s and Tisdale’s real property.”

¶4 Griswold completed and filed a “Petition for Waiver of Fees and
Costs - Affidavit of Indigency” form, requesting that the circuit court waive all
filing and service fees for him, claiming that he receives “medical assistance,”
“Food stamps/Foodshare,” and “energy assistance.” See WIS. STAT. § 814.29
(providing for potential waivers of payment of “any service or fee”). The court
granted the petition through a form “Order on Petition for Waiver of Fees and
Costs,” making a finding that Griswold had shown indigency through his petition.

¶5 Tisdale filed an answer denying the claim and moved to dismiss.

¶6 The circuit court issued a scheduling order that set a date for a
hearing on Tisdale’s motion to dismiss. In addition, the scheduling order required
Griswold to do the following before the hearing:

provide proof of his alleged indigency, including
documents verifying his receipt of public assistance, a copy
of the trust agreement under which he has control of over
1,000 acres,[4] and a completed financial statement on the

4
There is no dispute that the circuit court initially misread Tisdale’s answer to state that
the property at 637 West Pine Road consists of 1,030 acres; it is undisputed for purposes of this
appeal that the answer accurately stated that the property at 637 West Pine Road consists of 1.030
acre. However, before the court rendered its challenged rulings it acknowledged its initial
misreading. Further, after becoming aware of its initial error, the court did not alter its order
requiring the information described in the scheduling order—instead, the court made clear that it
would continue to require Griswold to produce this information.

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No. 2022AP1385

form attached hereto.[5] All financial information provided
will be sealed and only accessible by the court or by
persons specifically authorized by the court.

See WIS. STAT. § 814.29(2) (providing in pertinent part that, after a circuit court
has initially granted a waiver to a person from “giv[ing] security for costs or to
pay any service or fee” under § 814.29(1), the court “may later require the
payment of, or the giving of security for, costs, fees and service if the court
determines that the person no longer meets any of the requirements under”
§ 814.29(1)).

¶7 Griswold submitted a copy of his eligibility for Supplemental
Nutrition Assistance Program (SNAP) payments before the hearing, but never
produced the other requested information such as a copy of the trust agreement
giving him control 637 West Pine Road, Muscoda, and a completed Financial
Disclosure Statement.

¶8 At the hearing in April 2021, the circuit court probed the basis for
Griswold’s claimed indigency status. The court noted that Griswold had: failed to
provide the required information beyond the SNAP eligibility form; appeared to
take the position in separate state court litigation that he had significant personal
assets;6 and claimed ownership rights in 637 West Pine Road.

5
Attached to the scheduling order was a two-page form “Financial Disclosure
Statement,” with one additional page of instructions, for Griswold to fill out and return.
Disclosures required on the form include automobiles owned, real estate and other real property
interests held, and details regarding debts of others to the reporting person.
6
The circuit court quoted the following from a brief that Griswold submitted in
December 2020 to the circuit court in the separate case (Grant County Case No. 20-CV-216), in
which Griswold referred to himself in the third person, with emphasis on pertinent language:

(continued)

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¶9 Griswold took the position that the circuit court could not require
him to provide further information on the indigency issue, given that Griswold had
shown that he was entitled to receive public assistance. Apparently ignoring the
portion of the scheduling order providing that all financial information would be
sealed, Griswold said, “I don’t think it’s anybody’s business that I be forced to put
on the public record matters that are supposed to be private, and I think we’re
getting completely off the track.”

¶10 Tisdale, through counsel, argued in part that the complaint should be
dismissed because “[r]ight now,” at 637 West Pine Road,

there [are] no animals there. There is no possibility for any
grazing on one acre. There is no—there [are] dogs. So
that’s all that’s on the property as far as livestock ….
There is no grazing purposes that they would be used for it.
There is no farming operation going on there.

See WIS. STAT. § 90.05(1)(c) (“An owner, or the owner’s heirs or assigns, are not
obligated to build or maintain any part of a partition fence during any time when
none of the adjoining lands is occupied for farming or grazing.”).

Griswold, at all times material hereto, believed that Miles had
accepted Griswold’ offer to utilize Miles’ real estate expertise,
subject matter, knowledge, and access to know what specific
properties might come, quote, on the market, end of quote,
within Griswold’s available $30,000 price range that would be
suitable for use to store Griswold’s approximate fleet of about
30 boats and 10 vehicles, including specifically mentioned
particular over-width boats that required at least 16 feet access
to permit safe egress onto and off of the desired property.

At the hearing in this case, Griswold did not dispute that this was an accurate quotation from a
brief that he had submitted in the other case, but he argued that the circuit court here was
“misconstruing the context” of this submission, which Griswold said involved him acting as an
agent for a trust.

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¶11 Tisdale further argued for dismissal based on the ground that
Griswold, who admitted that he did not own and was not a trustee for the trust that
Griswold represented owns 637 West Pine Road, could not properly bring an
action based on WIS. STAT. § 90.03.

¶12 On the same topic, the circuit court questioned whether Griswold is
“a proper party to this action,” and explained that the court needed “a copy of this
Greg Griswold Irrevocable Trust Agreement” to help the court decide that issue.
The court gave Griswold three additional weeks to submit the financial
information required by the scheduling order and also to address the issue of
whether Griswold could be a proper plaintiff in this case.

¶13 Griswold failed to submit the required information within the three-
week deadline or thereafter. Instead, he filed a 13-page motion requesting that the
circuit court recuse itself based on alleged “animus” and “bias,” but which was
devoted in large part to arguments on the merits of various issues.

¶14 In June 2021, the circuit court issued an order that:

 Vacated the previously ordered waiver of fees, “[d]ue to [Griswold’s]
lack of standing to bring this case, his failure to provide the financial
information twice requested by the court, and his inability to
satisfactorily explain why he claimed to have substantial assets in 2019
in Grant County Case No. 20-CV-216”;

 Denied the motion for recusal;

 Dismissed the complaint “on its merits” based on the absence of proof
that 637 West Pine Road “is occupied for farming or grazing,” as
required by WIS. STAT. § 90.05(1)(c); and

 Dismissed the complaint for the separate reason that Griswold had
“fail[ed] to provide documentation within the three weeks” allowed
after the hearing “showing he is a proper party plaintiff,” and therefore
he failed to show that he has “standing” to proceed.

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No. 2022AP1385

 Awarded statutory costs to Tisdale of $100.7

¶15 In June 2021, Griswold filed a motion for reconsideration, which the
circuit court denied by written order in July 2021. In its denial order, the court
stated in part,

[T]he court reporter has been directed to prepare a
transcript of the April 15, 2021 motion hearing and bill the
county for the expense. If the portion of the [circuit]
court’s order vacating the previously granted waiver of fees
is reversed, [Griswold] will not be ordered to reimburse the
county. It is not this court’s intent to hinder the Court of
Appeals’ ability to review this matter.

Also in July 2021, Griswold filed a second motion for reconsideration. In August
2021, the court indicated that it would deny that motion, but allowed Tisdale an
opportunity to address the court’s reliance at the hearing on court record
information that was familiar to Griswold but not familiar to Tisdale. Also in
August 2021, Griswold filed a “renewed motion” for recusal.

¶16 In October 2021, the circuit court denied the second motion for
reconsideration and the “renewed motion” for recusal. Also in October 2021,
Griswold filed a third motion for reconsideration, which the court denied in
December 2021. In the order denying the third motion for reconsideration, the
court stated in part the following:

No further motions will be addressed if not accompanied
by the requested documentation. Judgment is hereby
granted in favor of the defendant for statutory costs in the
amount of $100.00. Grant County will assess the
previously ordered $94.50 filing fee to Griswold, and the
transcript preparation fee, if he is unsuccessful on appeal.

7
Griswold does not challenge the statutory costs in this appeal.

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No. 2022AP1385

¶17 Griswold filed an appeal (No. 2021AP2117), followed by a 67-page
merits brief in March 2022. Tisdale filed a responsive brief in April 2022. But in
May 2022, Griswold filed a motion for voluntary dismissal of appeal
No. 2021AP2117. This court ordered the appeal dismissed in May 2022, and
remittitur occurred in July 2022.

¶18 On August 2, 2022, following remittitur, the circuit court entered an
order requiring Griswold to pay the $94.50 filing fee and $87.50 transcript
preparation fee. Griswold appeals this order.

DISCUSSION

¶19 Griswold argues that he is entitled to waiver of the filing fee and
transcript costs related to his appeal under the two-part test established by the
Wisconsin Supreme Court in State ex rel. Girouard v. Circuit Court for Jackson
Cnty., 155 Wis. 2d 148, 157, 159, 454 N.W.2d 792 (1990) (interpreting WIS.
STAT. § 814.29), because he showed the circuit court that he was indigent and
because he presented a claim upon which relief can be granted. I affirm because
Griswold’s complaint failed to state a claim upon which relief can be granted,
specifically, the complaint and its attachments make clear that 637 West Pine
Road was not occupied for farming or grazing at the time the complaint was filed.
See WIS. STAT. § 90.05(1)(c) (“An owner, or the owner’s heirs or assigns, are not
obligated to build or maintain any part of a partition fence during any time when
none of the adjoining lands is occupied for farming or grazing.”) (emphasis
added). That is, the complaint sets forth the entire factual basis for application of
the bar imposed by § 90.05(1)(c), and therefore the circuit court could both
properly dismiss the complaint and reverse its initial grant of the waiver because
Griswold failed to state a claim upon which relief may be granted.

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No. 2022AP1385

¶20 “[T]he fee waiver statute’s standard for deciding whether a proposed
action states a claim is the same standard that is applied when considering a
motion to dismiss in an ordinary civil case for ‘[f]ailure to state a claim upon
which relief can be granted.’” State ex rel. Luedtke v. Bertrand, 220 Wis. 2d 574,
578, 583 N.W.2d 858 (Ct. App. 1998) (quoting WIS. STAT. § 802.06(2)(a)6.), aff’d
by an equally divided court, 226 Wis. 2d 271, 594 N.W.2d 370 (1999), superseded
by statute on other grounds; see also State v. Boruch, No. 2018AP152,
unpublished slip op. ¶¶17-22 (WI App May 19, 2020).

¶21 A proposed action is subject to dismissal when it fails to state a
claim upon which relief may be granted, which occurs when it is legally
insufficient. See Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶19,
356 Wis. 2d 665, 849 N.W.2d 693. A claim is legally insufficient “‘only if it is
quite clear that under no condition can a plaintiff recover.’” Luedtke, 220 Wis. 2d
at 578 (quoted source omitted). Stated differently, an action fails to state a claim
upon which relief may be granted only if the facts set forth in the action fail to
reveal an apparent right to recovery under any legal theory. See Strid v. Converse,
111 Wis. 2d 418, 423, 331 N.W.2d 350 (1983). This presents an issue of law that
I review de novo. See State ex rel. Hansen v. Circuit Ct. for Dane Cnty., 181
Wis. 2d 993, 998, 513 N.W.2d 139 (Ct. App. 1994).

¶22 Notably for purposes of this appeal, “[w]hile a complaint need not
specifically deny the existence of any and all affirmative defenses, it can, by
inadvertence or otherwise, create or concede an affirmative defense fatal to its
validity.” Thomas v. Kells, 53 Wis. 2d 141, 145, 191 N.W.2d 872 (1971)
(footnote omitted); see also 5 Wright & Miller, FEDERAL PRACTICE & PROCEDURE
§ 1215 (3d ed. 2015) (“If a plaintiff does plead particulars, and they show [the

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plaintiff] has no claim, then the plaintiff has pleaded himself [or herself] out of
court.”).

¶23 In the following passages in his complaint, Griswold made clear that
he had allegedly erected what he called “a suitable grazing livestock fence” purely
in anticipation of grazing animals in the future and that no farming or grazing
activities were then taking place:

 In November 2020, “Griswold acquired the necessary fencing ‘cattle
panels and T-Posts,’ and constructed a livestock fence suitable for
grazing Griswold’s intended sheep and geese intended to become
acquired the next summer, beginning shortly after the end of October,
and which was thereafter finally completed no later than before the
ground would freeze this winter, as of the last letter written Tisdale on
November 10th, 2020.”

 “Griswold has constructed a sufficient ‘cattle panel’ fence between
Griswold’s and Tisdale’s parcels, along the respective approximate
property line sufficient as to thereafter be able to safely contain grazing
livestock including sheep and geese beginning with this next summer’s
season ….”

 “Tisdale was/is required to share equally in the expense of constructing
and maintaining a proper fence between the two respective subject
parcels of property, sufficient as to permit Griswold to graze his
intended sheep and geese beginning the next summer’s season ….”

 “Tisdale owes Griswold the sum of $304.99, for what remains as was/is
Tisdale’s fair share of the materials required to construct what was
Tisdale’s portion of the sufficient fence required so as to permit
Griswold’s grazing of livestock intended the next summer.”

¶24 Further, attached to the complaint was correspondence between
Griswold and Tisdale. The correspondence confirms the allegations in the
complaint that Griswold’s claim is based entirely on his alleged construction of
what Griswold called a “grazing livestock fence” for purpose of holding grazing
animals only in the future:

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 Griswold: “[M]y plans in the near future include establishing a grazing
‘flock’ to take advantage of the productivity of my parcel’s ability to
grow forage .…”

 Griswold: “… so as to insure that my future livestock do not offend
trespassing across the property lines so defined .…”

 Tisdale: “[S]ince you currently do not own any sort of ‘grazing animal’
at the moment, please kindly inform me as to what kind of livestock will
be grazing your parcel.”

 Griswold: “… what will be my future utilization of my own parcel’s
ability to support grazing livestock expected to include sheep, lambs and
goats, as well as possibly geese .…”

 Griswold: “… particularly now this final more permanent fence’s
anticipated containment of my future grazing livestock .…”

¶25 It is difficult to discern a clear argument on appeal from Griswold on
this issue. At one point he states: “‘[F]encing’ prior to ‘grazing’ is in fact, ‘a
required farming activity,’” such that Griswold was “actively farming” even
though no animals were yet grazing. I reject whatever argument Griswold may
intend to make because he fails to explain what he specifically means by the
phrase “required farming activity” or more generally what relevance this concept
would have to the bar imposed by WIS. STAT. § 90.05(1)(c).

¶26 In the circuit court, Griswold said at one point:

[T]he statute does not have any contemplation that I have to
have animals before I have a fence. That makes no sense. I
used the money to put up the fence that I need her contribution
so that I can buy my livestock, so it is a question of timing.

Even if Griswold had included these statements in his appellate briefing, at best
they amount to the following assertion: it would be an absurd result, which the
legislature could not have intended in enacting WIS. STAT. § 90.05(1)(c), to
require landowners who seek to evoke Chapter 90 of the Wisconsin Statutes to

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No. 2022AP1385

identify adjoining lands that are currently “occupied for farming or grazing.” I see
no absurdity. To the contrary, whatever its merits as a policy choice, it would be
one rational choice of the legislature to reserve the partition procedures for
ongoing farming or grazing operations, and not for mere plans to farm or graze, as
Griswold describes in the complaint. It does not matter that the legislature could
have made other rational policy choices that might have altered or eliminated
§ 90.05(1)(c) in favor of someone in Griswold’s alleged position.

¶27 Under the governing legal standards, summarized above, I do not
resolve this issue solely based on Griswold’s admission to the circuit court at the
hearing that he did not in fact have grazing animals at 637 West Pine Road—even
by the time of the hearing, much less when he filed the complaint—because his
plan was to use the money he would win through a judgment in this lawsuit to buy
the animals that would go inside fencing. It is true that Tisdale essentially made
an argument for summary judgment on this ground, and presented the same
argument in her combined answer and motion to dismiss. But the issue is whether
Tisdale stated a claim upon which relief may be granted, which is a determination
that must be based on the pleadings alone.

¶28 At the same time, my interpretation of WIS. STAT. § 90.05(1)(c),
which to repeat is not meaningfully disputed by Griswold, provides an
independent ground to affirm the circuit court’s challenged rulings. As the court
pointed out in addressing Griswold’s second motion for reconsideration, it
dismissed this case based on Griswold’s admission to facts under which he could
not overcome the bar created by § 90.05(1)(c). The court further noted that
Griswold’s interpretation of § 90.05(1)(c) “is inconsistent with the clear statutory
language and the filing of a meritless lawsuit is grounds to deny a fee waiver
petition.” In a similar vein, in addressing the third reconsideration motion, the

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court deemed this action to be “frivolous” based on the absence of evidence that
could overcome the bar in § 90.05(1)(c).

¶29 Griswold repeatedly notes that the transcript of the hearing in this
case was ordered by the circuit court and not by Griswold, but he does not
persuade me that this represents a problem. As summarized above, the court was
careful to note that the county would be responsible for the transcript cost unless
Griswold were successful on appeal, which he has not been, in which case
Griswold would be responsible. The court anticipated that Griswold would
appeal, he did appeal, and the transcript was necessary for this court’s review of
the appeal that Griswold has pursued. Griswold fails to provide a basis for
reversal based on the fact that the court ordered the transcript and explained the
condition under which Griswold would be responsible for paying it.

¶30 Partly through a series of short, sarcastic footnotes, Griswold may
mean to suggest that an independent ground for reversal would be that the circuit
court should have recused itself, based on either or both of his two recusal
motions. If this is intended as an argument it would be wholly without merit.
Perhaps Griswold’s most clearly articulated point is to question the court’s
impartiality in providing Tisdale with an opportunity to address court records in
other cases involving, and therefore familiar to, Griswold and not familiar to
Tisdale. But Griswold completely fails to explain how the court’s approach on
this issue demonstrated partiality, much less how the approach could have
prejudiced him. I make a related observation based on my review of the record as
a whole. As far as I can see at every turn in this long-litigated small claims case
the court demonstrated exceptional patience and equanimity in the face of
Griswold’s verbose, piecemeal, and often unclear advocacy.

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¶31 For all these reasons, the circuit court properly vacated the
previously ordered waiver of fees, denied the motion for recusal, and dismissed
the complaint on its merits.8

By the Court.—Order affirmed.

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

8
In light of the other dispositive issues discussed in the text, I need not reach the
following issues referenced by the parties and I assume without deciding that Griswold could
prevail on each: (1) whether Griswold showed that was indigent; (2) whether Griswold’s failure
to provide the financial information twice requested by the circuit court, after the court noted
information raising questions about his claimed indigent status, provided an independent ground
to reverse the initial waiver determination; (3) what the parties characterize as Griswold’s
“standing,” or lack thereof, to bring a claim under Chapter 90, based on his legal status relative to
637 West Pine Road; and (4) given the timing of and substance of Griswold’s three
reconsideration motions and his dismissal of his first appeal, whether (a) this court has
jurisdiction to review this appeal or (b) Griswold is, in Tisdale’s words, “collaterally estopped”
from bringing this appeal. It is far from clear to me that Griswold would prevail on any or all of
these issues, but I make these assumptions in the interest of judicial economy. See State v. Waste
Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978) (“An appellate court is not a
performing bear, required to dance to each and every tune played on an appeal.”).

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