Veronika McCarthy v. Briane F. Pagel, Jr

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 4, 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. 2022AP602 Cir. Ct. No. 2011CV1483

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

VERONIKA MCCARTHY,

PLAINTIFF,

FRANK P. GAURA,

PLAINTIFF-APPELLANT,

V.

BRIANE F. PAGEL, JR,

DEFENDANT,

KREKELER STROTHER, SC,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County:
JOSANN M. REYNOLDS, Judge. Affirmed.

Before Blanchard, P.J., Kloppenburg, and Fitzpatrick, JJ.
No. 2022AP602

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. In 2011, Krekeler Strother, S.C. (“Krekeler”) was
granted a judgment against Frank Gaura. In 2021, Krekeler filed a motion for
action on the judgment pursuant to WIS. STAT. § 806.23 (2021-22).1 The Dane
County Circuit Court granted Krekeler’s motion, and Gaura argues in this appeal
that the circuit court erred in doing so. We disagree with Gaura and, for the
reasons discussed below, affirm the order of the circuit court.2

BACKGROUND

¶2 The following material facts are not disputed.

¶3 In 2011, Gaura brought an action against Krekeler. The circuit court
dismissed Gaura’s complaint. In December 2011, the circuit court entered a
judgment for costs in favor of Krekeler against Gaura in the amount of $545.

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
Krekeler’s response brief cites to the parties’ appendices instead of the record. On
appeal, a party must include appropriate factual references to the record in its briefing. WIS.
STAT. RULE 809.19(1)(d)-(e). The appendix is not the record. United Rentals, Inc. v. City of
Madison, 2007 WI App 131, ¶1 n.2, 302 Wis. 2d 245, 733 N.W.2d 322. We remind counsel of
the obligation to comply with the Rules of Appellate Procedure. See WIS. STAT. RULE 809.83(2).

In addition, Briane Pagel, Jr. was a party to this action at the time the 2011 judgment was
entered. He did not join in Krekeler’s recent motion for action on the judgment. Veronika
McCarthy is a party to the judgment in this matter, but McCarthy has not filed a notice of appeal
concerning the circuit court order. Accordingly, those persons will not be mentioned further in
this opinion.

Further, Gaura filed a petition to bypass in the supreme court pursuant to WIS. STAT.
RULE 809.60. The supreme court denied that petition.

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Gaura appealed the judgment to this court, and this court affirmed the judgment of
the circuit court.

¶4 In November 2021, Krekeler filed a motion for action on the
judgment pursuant to WIS. STAT. § 806.23.3 The factual bases for Krekeler’s
motion were that the five-year period to execute on the judgment after rendition of
the judgment had expired, and the ten-year judgment lien on real estate from date
of entry of the judgment had expired. See WIS. STAT. §§ 815.04 and 806.15(1).
Krekeler asserted in its motion that an action on the judgment was necessary to
preserve its lien rights and its right to execute on the 2011 judgment. Gaura
opposed Krekeler’s motion in the circuit court.

¶5 At a January 2022 hearing, the circuit court granted Krekeler’s
motion. The court reasoned that “the case law is very clear” that Krekeler had met
the burden of showing “good cause” by establishing that its right to enforce the
judgment had expired based on the operation of WIS. STAT. §§ 815.04 and
806.15(1). Accordingly, the court concluded that the action on the judgment was
necessary for Krekeler to enforce its rights. Gaura appeals the circuit court order.

¶6 We mention other material facts in the following discussion.

3
WISCONSIN STAT. § 806.23 states: “No action shall be brought upon a judgment
rendered in any court of this state between the same parties, without leave of the court, for good
cause shown, on notice to the adverse party.”

Separately, we note that, as of November 2021, the amount due and owing from Gaura to
Krekeler on that judgment was approximately $775.

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No. 2022AP602

DISCUSSION

¶7 Gaura makes several arguments concerning the circuit court’s order.
For the following reasons, we reject each of those arguments. We begin by
discussing our standard of review.

¶8 “The decision whether to grant a motion for leave to act on a
judgment is discretionary with the [circuit] court and reversible only for an
[erroneous exercise] of discretion.” Andersen v. Kojo, 110 Wis. 2d 22, 28, 327
N.W.2d 195 (Ct. App. 1982). This court will uphold an exercise of the circuit
court’s discretion if the circuit court examined the relevant facts, applied a proper
standard of law and, using a demonstrated rational process, arrived at a conclusion
that a reasonable judge could reach. DeWitt Ross & Stevens, S.C. v. Galaxy
Gaming & Racing Ltd. P’ship, 2004 WI 92, ¶54, 273 Wis. 2d 577, 682 N.W.2d
839.

¶9 We now discuss applicable authorities concerning a motion for an
action on a judgment pursuant to WIS. STAT. § 806.23, and repeat the terms of that
statute: “No action shall be brought upon a judgment rendered in any court of this
state between the same parties, without leave of the court, for good cause shown,
on notice to the adverse party.” “When a judgment becomes unenforceable, a
judgment creditor may file an action on the judgment in order to obtain a new,
enforceable judgment.” Chase Lumber & Fuel Co., Inc. v. Chase, 228 Wis. 2d
179, 200-01, 596 N.W.2d 840 (Ct. App. 1999) (internal quotation marks omitted).
This court has explained the good cause requirement in § 806.23 as follows:

The purpose of the “good cause” requirement is to
protect the debtor from harassment when there is no reason
to believe a later judgment will be more effectively
collected than the earlier. First Wisconsin Nat. Bank v.
Rische, 15 Wis. 2d 564, 568, 113 N.W.2d 416, 418-19

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No. 2022AP602

(1962). However, the plaintiff can meet the “good cause”
requirement by showing that an action on the judgment is
necessary to enforce his or her rights. Id. at 568 …. In
Rische, the supreme court held that the plaintiff had met
the good cause requirement by showing that the twenty-
year statute of limitations on the judgment was about to
expire and that plaintiff would thereafter be barred from
issuing execution or obtaining leave to act on the judgment.
Id. at 568 …. In Meier v. Purdun, 70 Wis. 2d 1100, 1106,
236 N.W.2d 262, 265 (1975), the court held that the
plaintiff had met the good cause requirement by showing
that the ten-year judgment lien period provided by [WIS.
STAT. §] 270.79 ... (1971), had expired, so that the action
was necessary to enforce the plaintiff’s lien.

… An action on the judgment is necessary to
preserve plaintiff’s lien rights and his right to issue
execution on the judgment. Under Rische and Meier, this
constitutes good cause for leave to act on the judgment
under [WIS. STAT. §] 806.23.

Andersen, 110 Wis. 2d at 25; see also Chase, 228 Wis. 2d at 201.

¶10 We now apply those precepts to the facts of this case. There is no
dispute that, in order to enforce its rights on the 2011 judgment, Krekeler must file
an action on the judgment under WIS. STAT. § 806.23. That is the case because,
without relief pursuant to § 806.23, Krekeler cannot execute on the judgment, or
docket the judgment against real estate owned by Gaura, in light of the amount of
time that has elapsed since the 2011 judgment was rendered. See WIS. STAT.
§§ 815.04 and 806.15(1). As a result, pursuant to the case law already discussed,
Krekeler has met the good cause requirement under § 806.23. See Andersen, 110
Wis. 2d at 25 (“An action on the judgment is necessary to preserve plaintiff’s lien
rights and his right to issue execution on the judgment. Under Rische and Meier,
this constitutes good cause for leave to act on the judgment under sec. 806.23.”).
Gaura makes several contrary arguments, each of which fails.

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No. 2022AP602

¶11 First, Gaura argues that Krekeler’s motion for action on the
judgment is “harassment” of Gaura by Krekeler in two respects, and that such
harassment mandates rejection of Krekeler’s motion. See id. (“The purpose of the
‘good cause’ requirement is to protect the debtor from harassment when there is
no reason to believe a later judgment will be more effectively collected than the
earlier.”). Gaura alleges that Krekeler’s motion for action on the judgment is
harassment because it was brought as retaliation against Gaura after he appealed a
circuit court ruling in a second lawsuit between Gaura and Krekeler. According to
Gaura, this allegation of harassment “undermined” Krekeler’s assertion that it had
shown good cause for its motion.4 Gaura also alleges that the motion is
harassment of Gaura by Krekeler because Krekeler and the circuit court had
information that Gaura does not have the funds to pay the 2011 judgment.

¶12 We reject Gaura’s argument because it includes the proposition that
there is a separate element of “no harassment” of the judgment debtor in order to
satisfy the “good cause” requirement of WIS. STAT. § 806.23. As Gaura concedes
in his briefing in this court, good cause is established when a motion for action on
the judgment is necessary to preserve the judgment creditor’s right to execute on
the judgment and that right is barred by one or more statutory time limitations.
See id. Neither the published opinions of this court nor the opinions of our

4
In a related vein Krekeler asserts that Gaura was making monthly payments toward
satisfaction of the judgment in the second lawsuit between these parties, and that Krekeler did not
seek collection on the 2011 judgment in this case until Gaura failed to make payments on the
judgment in the second lawsuit. Gaura disputes those assertions, and we agree with Gaura that
there is no basis in this record to conclude that Krekeler decided to forego collection actions in
this matter because Gaura was making regular payments on Krekeler’s judgment against Gaura in
the second lawsuit.

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No. 2022AP602

supreme court include a separate element of “no harassment” of the judgment
debtor in order to satisfy the requirement of “good cause.”5

¶13 Second, Gaura argues that the circuit court erred in not granting his
request that Krekeler be ordered to hire him to work for that law firm in order to
pay off the judgment in this action. For good reason, the circuit court rejected this
contention. Gaura neither gives any authority for such an unusual request, nor
presents any valid, reasonable basis for the request.6

¶14 Third, Gaura relies on a few statements of the circuit court made at
the hearing in this matter in an attempt to assert that the circuit court came to the
conclusion that there is no valid basis for Krekeler’s motion. However, the circuit
court’s statements cannot be reasonably interpreted as coming to the conclusion
that Krekeler’s motion should have been denied. Those statements questioned
only the amount of effort both parties were expending in this litigation regarding a
relatively small debt and did not in any way question the factual or legal basis for
Krekeler’s motion.7

5
Gaura also argues that the case law already discussed should be “harmonize[d]” in
order to accept his interpretation of WIS. STAT. § 806.23. We reject this argument because this
court does not have the authority to modify, withdraw, or overrule language in a published
opinion of this court or an opinion of the Wisconsin Supreme Court. Cook v. Cook, 208 Wis. 2d
166, 189-90, 560 N.W.2d 246 (1997).
6
In the circuit court, Gaura argued the equitable defense of laches as a basis to reject
Krekeler’s motion. Gaura does not revive this argument on appeal.
7
Gaura also may be attempting to make an argument regarding summary judgment
methodology, but it is hard to decipher that portion of his brief. If Gaura has attempted to make
such an argument, we reject it as undeveloped. See State v. Pettit, 171 Wis. 2d 627, 647, 492
N.W.2d 633 (Ct. App. 1992) (holding that this court may decline to address undeveloped
arguments because we “cannot serve as both advocate and judge”).

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No. 2022AP602

¶15 In sum, the circuit court properly exercised its discretion in granting
Krekeler’s motion for action on the judgment brought pursuant to WIS. STAT.
§ 806.23.8

CONCLUSION

¶16 For the foregoing reasons, we affirm the order of the circuit court.

By the Court.—Order affirmed.

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

8
Gaura recently filed a motion to strike a portion of Krekeler’s response brief. That
motion is denied as moot in light of this court’s opinion in this appeal.

8