Wisconsin Manufacturers and Commerce, Inc. v. Village of Pewaukee

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COURT OF APPEALS DECISION DATED AND FILED
October 14, 2026 Samuel A. Christensen Clerk of Court of Appeals
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.
Appeal No.
2025AP2013
STATE OF WISCONSIN
Cir. Ct. No. 2022CV515
IN COURT OF APPEALS DISTRICT II
WISCONSIN MANUFACTURERS AND COMMERCE, INC.,
PLAINTIFF-APPELLANT,
V.
VILLAGE OF PEWAUKEE, DEFENDANT-RESPONDENT.
APPEAL from an order of the circuit court for Waukesha County: PAUL BUGENHAGEN, JR., Judge. Affirmed.
Before Lazar, P.J., Gundrum, and Grogan, 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. 2025AP2013
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¶1 PER CURIAM. Wisconsin Manufacturers and Commerce, Inc.
(“WMC”) appeals a circuit court order denying its combined motion for attorney
fees and for reconsideration of the order denying attorney fees. For the reasons
explained below, we conclude the circuit court properly denied the motion. We
affirm.
BACKGROUND
¶2 In Wisconsin Manufacturers and Commerce, Inc. v. Village of
Pewaukee, 2024 WI App 23, ¶3, 411 Wis. 2d 622, 5 N.W.3d 949, we struck down
the Village of Pewaukee’s (“Village”) transportation user fee after concluding it
was an impermissible tax. The Village timely petitioned the supreme court for
review of our decision. While the petition for review was pending, the Village
continued to impose the transportation user fee on its utility customers. The
supreme court denied the Village’s petition in August 2024. The Village did not
include the transportation user fee on any further utility bills.
¶3 In November 2024, WMC1 moved for sanctions for contempt of
court, alleging that the Village had committed contempt of our decision “by
imposing its ‘transportation user fee’ for several months after the Wisconsin Court
of Appeals declared it to be unlawful and by failing to return that money to its
utility customers.” As relevant to the present appeal, in its motion, WMC
1 Although WMC was and continues to be the only plaintiff in the underlying circuit
court action, it included as a movant in its sanctions for contempt motion, Hawthorne Place LLC.
In its motion, WMC advised that “Hawthorne Place LLC owns the Hawthorne Place apartments
in the Village of Pewaukee.” Because Hawthorne Place was not a party in the circuit court and
because Hawthorne Place is not a party on appeal, we do not include Hawthorne Place in our
discussion.

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“request[ed] that the Court do the following: … 4. Award [WMC] attorney fees
and costs pursuant to WIS. STAT. § 785.04(1)(a) [(2023-24)].”2
¶4 In WMC’s brief in support of its motion for sanctions for contempt
of court, WMC included a section titled “IV. This Court should award attorney
fees to the movants.” (Emphasis omitted.) WMC advised the circuit court that
WIS. STAT. § 785.04(1)(a) authorized an award of attorney fees to the parties that
filed a contempt motion. WMC stated, “Here, the Movants might file a separate
motion for costs and attorney fees under WIS. STAT. § 785.04(1)(a). If they do, the
Court should grant that motion.”
¶5 Then, in WMC’s reply brief in support of its motion for sanctions for
contempt, WMC argued:
The Movants seek remedial sanctions, which include
“[p]ayment of a sum of money sufficient to compensate a
party for a loss or injury suffered by the party as the result
of a contempt of court.” WIS. STAT. § 785.04(1)(a).
Attorney fees for pursuing a contempt action are also
“recoverable under § 785.04(1)(a).” Benn v. Benn, 230
Wis. 2d 301, 315, 602 N.W.2d 65 (Ct. App. 1999). The
Movants are seeking those two forms of remedial
sanctions.[3]
¶6 At the contempt hearing, the circuit court found the Village in
contempt. It noted that “I’m not finding that the Village was doing something
absurd here. This was still in litigation. Nobody … is bringing in any other facts
to say that this was somehow reckless or with ill intent.”
2 All references to the Wisconsin Statutes are to the 2023-24 version.
3 Record No. 99 is WMC’s motion for sanctions for contempt of court, where it
requested the circuit court to “[a]ward [WMC] attorney fees and costs pursuant to WIS. STAT.
§ 785.04(1)(a)[.]”

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¶7 As for sanctions, the circuit court determined that as a remedial
sanction it would order the Village to refund the transportation utility fee “to
anyone that did pay them in those two … payments [while the petition for review
was pending].” However, it stated:
I’m not imposing any further sanctions, other than the
disbursements of the monies that were collected. I don’t
find it appropriate to order attorney fees even as parties
could have handled it in a different manner to have absolute
clarity of [the effect of the court of appeals’ decision while
the petition for review was pending]. I don’t find that the
Village is frivolously making this argument, by any means.
¶8 After making its determination, the circuit court asked, “WMC,
anything I misstated or any further clarification?” WMC responded negatively.
The court asked WMC to “prepare … an order and make it a final order.” WMC
agreed. The court then reminded WMC, “And again, no attorney fees on this[,]”
and asked, “WMC, anything further?” WMC responded, “No, Your Honor.
Thank you.”
¶9 WMC prepared and filed a proposed order that provided in part:
“[T]he Movants’ request for attorney fees and costs pursuant to WIS. STAT.
§ 785.04(1)(a) is denied.” The circuit court signed the proposed order on February
25, 2025. WMC filed a notice of entry of final order on February 25, 2025.
Neither the Village nor WMC appealed the February 25th order.
¶10 Instead, on March 21, 2025, WMC filed a “combined motion for
attorney fees and reconsideration of the order denying attorney fees.” WMC
asked the circuit court to “reconsider its order denying attorney fees for the
Movants.” It asserted the court “decided that issue prematurely, before the parties
presented any evidence or arguments on the issue.” WMC pointed to its brief in
support of its motion where it had stated it “might file a separate motion for costs

No. 2025AP2013
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and attorney fees under WIS. STAT. § 785.04(1)(a)” and argued that WMC had
“clarified that [it was] not yet seeking attorney fees.”
¶11 WMC also argued, “If this Court reconsiders its denial of attorney
fees, it should award attorney fees to the Movants for one of two alternative
reasons.” WMC offered argument as to its two alternative reasons.
¶12 The circuit court held a hearing on WMC’s motion. The court
observed that in WMC’s motion and briefs, WMC had asked for attorney fees to
be awarded pursuant to WIS. STAT. § 785.04(1)(a), and the court considered
whether to award attorney fees at the contempt motion hearing. The court stated:
I don’t find it appropriate to now go back and break it down
to another level, give WMC another chance to come in and
argue, well, Judge, thanks for giving us that part of the
ruling, now we want to add on this as well. I’ve already
considered it as a whole.…
…. I note as well, it’s true that the movants did state that
they might file another motion for costs and attorney fees.
I don’t see how this -- how that can arise to a manifest
error. The Court even looking at WMC’s brief, you cite the
law that there has to be manifest error, but really just argue,
well, Judge, let’s do this again. It’s more of a do-over of
the consideration rather than that this Court committed a
manifest error. WMC adds in a lot more. I understand
that, that there’s other considerations that you’re asking me
to consider. The Court declines to do so, however, because
I can’t find that there was a manifest error.
¶13 The circuit court denied the reconsideration motion. Because it
denied reconsideration, it advised that it would not consider WMC’s two
alternative theories regarding why it was entitled to attorney fees. WMC appeals.

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DISCUSSION
¶14 As a threshold matter, during briefing, we directed the parties to
address our jurisdiction to review the circuit court order denying the
reconsideration motion. We observed that the February 25, 2025 order holding the
Village in contempt and denying attorney fees and the July 22, 2025 order denying
reconsideration were final orders for purposes of appeal. However, because WMC
did not timely appeal from the February 25, 2025 order, we observed that our
jurisdiction over the appeal of the reconsideration decision was governed by the
Ver Hagen/Silverton rule, which provides that “[n]o right of appeal exists from an
order denying a motion to reconsider which presents the same issues as those
determined in the order or judgment sought to be reconsidered.” See Silverton
Enters., Inc. v. General Cas. Co., 143 Wis. 2d 661, 665, 422 N.W.2d 154
(Ct. App. 1988); see also Ver Hagen v. Gibbons, 55 Wis. 2d 21, 26, 197 N.W.2d
752 (1972). Under the “new issues test” we compare the issues raised in the
motion for reconsideration with the issues that the circuit court disposed of in the
final order. Harris v. Reivitz, 142 Wis. 2d 82, 87-88, 417 N.W.2d 50
(Ct. App. 1987) (citing Ver Hagen, 55 Wis. 2d at 25).
¶15 In their briefs, the parties debate whether the Ver Hagen/Silverton
rule applies. However, even assuming that the rule does apply, we are convinced
that WMC raised a new issue in its motion for reconsideration—namely did the
circuit court prematurely deny its motion for attorney fees. We have jurisdiction
to review the denial of the motion for reconsideration.
¶16 To succeed on a motion for reconsideration, a movant must either
present “newly discovered evidence or establish a manifest error of law or fact.”
Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons,

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Ltd., 2004 WI App 129, ¶44, 275 Wis. 2d 397, 685 N.W.2d 853. A “manifest
error” is “wholesale disregard, misapplication, or failure to recognize controlling
precedent.” Id. (citation omitted). “We review a trial court’s decision on a motion
for reconsideration under the erroneous exercise of discretion standard.” Id., ¶6.
¶17 On appeal, WMC argues a manifest error occurred because the
circuit court decided its request for attorney fees prematurely. It contends a
manifest error of fact occurred because “[t]he court patently misunderstood—and
thus misapprehended—what the Movants were requesting the court to do at the
contempt hearing.” WMC argues it was “not requesting the circuit court to award
[it] attorney fees at the contempt hearing”; rather, it “reserved the issue of attorney
fees for a future motion.” WMC also asserts that a manifest error of law occurred
because “[c]ontrolling precedent allows—even encourages—parties to seek
attorney fees after the underlying merits have been decided in their favor.”
¶18 We disagree that the circuit court committed a manifest error by
denying attorney fees at the contempt hearing. In WMC’s motion for sanctions for
contempt, it explicitly asked the court for “attorney fees and costs pursuant to WIS.
STAT. § 785.04(1)(a)[.]” The court’s scheduling order provided that it would
“address Plaintiff’s Motion for Sanctions for Contempt of Court filed on
11/12/2024” at a February motion hearing, and the court set a briefing schedule to
address the motion. Although WMC’s brief in support of its motion was
somewhat contradictory because it both asked the court to award attorney fees and
said it “might file a separate motion for costs and attorney fees under WIS. STAT.
§ 785.04(1)(a),” any ambiguity was resolved in WMC’s reply brief when it told
the court it was seeking attorney fees as a remedial sanction and it directed the
court to its motion for sanctions where it explicitly asked to be awarded attorney
fees.

No. 2025AP2013
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¶19 Moreover, at no time during the contempt hearing did WMC ask the
circuit court to delay its decision on attorney fees or allow the parties to further
brief the issue. Instead, WMC explicitly advised the court on two occasions that it
had nothing more for the court, and it agreed to draft a final order denying attorney
fees. Nothing in the record suggests the court patently misunderstood WMC.
Further, nothing prohibited the court from deciding the issue of attorney fees when
it did in this case. We conclude the circuit court did not erroneously exercise its
discretion by denying WMC’s motion for reconsideration. See Koepsell’s, 275
Wis. 2d 397, ¶44.
¶20 Before the circuit court, WMC argued that if the court “reconsiders
its denial of attorney fees, [the court] should award attorney fees to the Movants
for one of two alternative reasons.” It then offered argument as to why it was
entitled to attorney fees. However, because the court denied WMC’s
reconsideration request, the court did not reach WMC’s remaining arguments.
The court explained:
I considered getting into the merits of [WMC’s
arguments], but I don’t think it’s appropriate for the Court
to do so. If the Court of Appeals says, no, Judge, this was a
manifest error, that you should have allowed WMC to
come back and consider the issue of attorney fees, I guess
I’d have to take it up at that point. But the Court’s not
going to get into the further arguments, because, in essence,
it’s a new litigation. It’s a new -- new issues are being
raised by WMC. New arguments are being made by WMC
that weren’t initially raised in the moving papers or in the
initial brief of WMC. So the Court declines to take those
up at this time, instead finding that there was no manifest
error in this case of law or fact.
¶21 On appeal, WMC directly argues its alternative arguments and asks
this court to reverse the order denying reconsideration and remand with
instructions to award attorney fees. We decline to do so. When the circuit court

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denied WMC’s reconsideration request it advised WMC that it would not consider
WMC’s alternative arguments, including an entirely new theory, as to why it was
entitled to attorney fees. Because we conclude the circuit court appropriately
denied WMC’s motion for reconsideration, we likewise conclude the circuit court
had no obligation to address WMC’s new arguments as to why it was entitled to
attorney fees. See Bauer v. Wisconsin Energy Corp., 2022 WI 11, ¶14, 400
Wis. 2d 592, 970 N.W.2d 243 (“[A] motion for reconsideration is not a vehicle for
making new arguments[.]”). We will not do so for the first time within this
appeal. We affirm.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.