Larry W. Rader v. Acuity

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 12, 2020
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. 2019AP186 Cir. Ct. No. 2018CV143

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

LARRY W. RADER,

PLAINTIFF-APPELLANT,

V.

ACUITY, A MUTUAL INSURANCE COMPANY AND PINE RIDGE TRAILS
COMMUNITY SERVICES ASSOCIATION, INC.,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Marathon County:
LAMONT K. JACOBSON, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, 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. 2019AP186

¶1 PER CURIAM. Larry Rader, pro se, appeals an order dismissing
with prejudice his claims against Pine Ridge Trails Community Services
Association, Inc., and its insurer, Acuity, a Mutual Insurance Company. On appeal,
Rader’s statement of the issues purports to raise two issues for our review: (1) did
the circuit court lack subject matter jurisdiction over this lawsuit; and (2) did the
court err by denying Rader’s October 9, 2018 summary judgment motion, which
sought judgment in the amount of $1,834,000, plus 12% interest under WIS. STAT.
§ 628.46(1) (2015-16).1 We conclude the court had subject matter jurisdiction, and
it properly struck Rader’s summary judgment motion as untimely. We also reject,
or decline to consider, three other arguments that Rader appears to raise in his
appellate briefs. We therefore affirm.

BACKGROUND

¶2 This lawsuit arose from a dispute between Rader and Pine Ridge, his
condominium association. In 2016 and 2017, Pine Ridge’s architectural review
committee directed Rader to replace four of his condominium’s windows. Rader
refused to do so. On June 15, 2017, Rader sent a “Claim for Damages” to Pine
Ridge, in which he asserted the windows were “not in need of replacement and
[were] in good operating order.” Rader demanded $100,000 in damages for slander
of title and breach of privacy based on the architectural review committee’s actions.
On June 19, Rader reported a liability claim to Acuity, Pine Ridge’s insurer, based
on the same underlying facts.

¶3 In August 2017, Lisa Werger, an Acuity claims adjuster, inspected
Rader’s windows and found them to be in operating condition. Werger

1
All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise
noted.

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subsequently spoke with Pine Ridge’s president regarding Rader’s windows. By an
email dated August 10, 2017, Werger advised Rader that she believed the dispute
could be resolved if Rader provided Pine Ridge with a copy of a window
contractor’s report indicating that Rader’s windows were in good operating
condition.

¶4 Rader then commenced this action by filing a summons and complaint
against Pine Ridge and Acuity in Sheboygan County Circuit Court on September 15,
2017. Rader’s complaint referenced the window dispute, as well as an allegation
that Pine Ridge’s sprinkler system had damaged his property in 2015. Rader
asserted four causes of action against Pine Ridge: (1) breach of privacy;
(2) “Slander, Libel, Aspersion, and Defamation”; (3) trespass; and (4) “Breach of
Condominium plat covenants, and By-laws.” Rader also asserted a fifth cause of
action against Acuity for “Tortious Interference or Bad Faith.”

¶5 On September 29, 2017, Rader sent counsel for Pine Ridge and Acuity
a settlement demand in the amount of $1.8 million.2 On October 4, Rader sent
defense counsel a second copy of the same demand, with additional handwritten
notes and attachments. Although Rader asserts at various points in his appellate
briefs that the parties reached a settlement in 2017, he provides no record citations
in support of that proposition. Pine Ridge and Acuity assert no settlement was ever
reached.

¶6 Instead, the record reflects that on October 12, 2017, Pine Ridge and
Acuity filed an answer denying the majority of the allegations in Rader’s complaint.

2
On appeal, Rader repeatedly asserts that his settlement demands were for $1,834,000.
However, the record reflects that Rader demanded $900,000 in damages on his tortious
interference/bad faith claim, and $900,000 in damages on his other claims. Thus, Rader demanded
total damages of $1.8 million, not $1,834,000.

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The answer also asserted various affirmative defenses. In particular, the answer
asserted that under Wisconsin law, including Kranzush v. Badger State Mutual
Casualty Co., 103 Wis. 2d 56, 307 N.W.2d 256 (1981), Rader, a third-party
claimant, could not maintain a bad faith claim against Acuity, an opposing
defendant’s liability insurer.

¶7 On the same day they filed their answer, Pine Ridge and Acuity filed
a motion seeking a discretionary change of venue under WIS. STAT. § 801.52.
Specifically, the motion requested that venue be changed to Marathon County
because Rader was a resident of Marathon County; Pine Ridge, Rader’s
condominium, and defense counsel’s law firm were located in Marathon County;
and various witnesses were residents of Marathon County. Pine Ridge and Acuity
conceded that Acuity’s principal place of business was located in Sheboygan
County. However, they asserted Sheboygan County was one of many counties
where Acuity did business and was therefore no more convenient a venue for Acuity
than Marathon County. In fact, they asserted Marathon County would be a more
convenient venue for Acuity because Werger, a key witness, “lives and works from
her home in Marathon County, not Sheboygan.”

¶8 A hearing on Pine Ridge and Acuity’s motion for change of venue
was scheduled for January 5, 2018. Before that hearing, Rader filed three motions
for summary judgment on his tortious interference/bad faith claim against Acuity.
Rader also filed a one-page objection to the venue change motion, which
asserted: “Not only would such an order be an abuse of discretion[,] but the court
lacks authority to do so here until the cause of action against ACUITY is decided
by summary judgment or mediation or other resolution by [the Sheboygan County
Circuit Court].”

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¶9 During the January 5, 2018 hearing, Judge Daniel J. Borowski
conditionally granted Pine Ridge and Acuity’s change of venue motion. The
conditional issues were subsequently resolved without a further hearing, and
Judge Borowski entered a written order changing venue to Marathon County on
February 6, 2018. After the case was transferred to Marathon County, Rader filed
a “Notice of No Jurisdiction” on March 8, 2018. In that filing, Rader again asserted
that Judge Borowski had “no authority to order a change of Venue to Marathon
County.”

¶10 In an unrelated motion filed on May 29, 2018, Rader made passing
references to the Marathon County Circuit Court’s “limited JURISDICTION” and
again asserted the change of venue was “void for Lack of Jurisdiction.” On July 13,
2018, Rader filed a “JURISDICTIONAL Motion,” which asked the circuit court to
address whether it had jurisdiction over Rader’s lawsuit before considering a
pending defense motion to compel discovery.

¶11 No hearing date was scheduled on Rader’s jurisdictional motion, and
based on a local rule, the circuit court refused to consider that motion during an
unrelated motion hearing on August 16, 2018. The court stated it instead intended
to enter a scheduling order to “get this [case] back on track.” Dissatisfied with the
court’s refusal to address his jurisdictional motion, Rader petitioned our supreme
court for a supervisory writ. The supreme court dismissed his petition for failing to
satisfy statutory requirements. Rader then moved for reconsideration. The court
granted his motion, but it ultimately denied his petition for a supervisory writ.

¶12 In the meantime, the circuit court entered a scheduling order on
September 27, 2018. The scheduling order set a deadline for the defendants to
respond to Rader’s pending motions. It also required the defendants to file any

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dispositive motions by February 1, 2019. It did not, however, set forth a deadline
for Rader—who had already filed three summary judgment motions—to file
dispositive motions.

¶13 Pine Ridge and Acuity subsequently filed a brief in response to
Rader’s pending motions, with supporting affidavits. Much of their brief pertained
to Rader’s summary judgment motions, arguing Rader was not entitled to judgment
against Acuity on his bad faith/tortious interference claim. Instead, the defendants
contended Acuity was entitled to summary judgment on that claim. Among other
things, the defendants argued that under Kranzush, Rader lacked standing to pursue
a bad faith claim against Acuity because Wisconsin courts do not permit bad faith
claims “by an injured or damaged third-party claimant against a liability insurer for
the injuring or damaging party.”

¶14 In response to Rader’s jurisdictional motion, the defendants noted
Rader had clarified during the August 16, 2018 hearing and in his petition for a
supervisory writ that he was disputing Marathon County’s “subject matter
jurisdiction” to hear his case. The defendants observed that article VII, section 8 of
the Wisconsin Constitution and WIS. STAT. § 753.03 grant circuit courts subject
matter jurisdiction over all civil actions and proceedings in this state, unless
otherwise provided by law. The defendants theorized that Rader was confusing
subject matter jurisdiction with venue, which was a separate issue that had already
been decided against him by Judge Borowski.

¶15 On October 9, 2018, while briefing was underway on Rader’s pending
motions, Rader filed a motion for “Judgment pursuant to 628.46 Wis. Stats.,” which
was effectively a new summary judgment motion. Rader asked the circuit court to
enter a judgment of $1,834,000 against Acuity, along with 12% interest on that

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amount since November 4, 2017. Without any factual support, Rader contended
Acuity had determined in the summer of 2017 that his claims against Pine Ridge
“were meritorious and covered by policy Z01457 issued to [Pine Ridge].” Rader
therefore argued that by failing to pay his September 29 and October 4, 2017
settlement demands, Acuity had “admitted liability under Wis. Stat. 628.46,” and
Rader was entitled to the entire amount of his demands, plus 12% interest.3

¶16 Pine Ridge and Acuity objected to Rader’s new summary judgment
motion on several grounds. As relevant here, they argued the motion was untimely
under WIS. STAT. § 802.08(1) because it was not filed within eight months after
Rader filed his summons and complaint or within an alternative deadline set forth
in a scheduling order. Pine Ridge and Acuity therefore asked the circuit court to
deny Rader’s motion without further briefing or argument.

¶17 The circuit court issued a written decision on Rader’s pending
motions on January 17, 2019. The court agreed with Pine Ridge and Acuity that
Rader’s October 9, 2018 summary judgment motion was untimely, and it therefore
ordered that motion stricken. The court reasoned: “The scheduling order had
contemplated that the plaintiff’s motions were already on file, and set dates only for
the defendants’ response and the plaintiff’s reply to that response. Accordingly, any
later-filed motions are untimely.”

¶18 As for Rader’s jurisdictional motion, the circuit court agreed with
Pine Ridge and Acuity that Rader had confused the concepts of subject matter
jurisdiction and venue. The court noted that jurisdiction and venue are “separate

3
Rader relied on the 2015-16 version of WIS. STAT. § 628.46(1), which required an insurer
to “promptly pay every insurance claim” and stated that “[a]ll overdue payments shall bear simple
interest at the rate of 12 percent per year.” The statute was amended in April 2018 to reduce the
interest rate on overdue insurance claims to 7.5% per year. See 2017 Wis. Act 235, § 4.

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concepts,” and subject matter jurisdiction is granted to circuit courts by our state
constitution. The court also concluded the change of venue to Marathon County
was “proper,” and “even if it were not, a defect in venue would not affect the Court’s
jurisdiction.”

¶19 Turning to Rader’s remaining summary judgment motions on his bad
faith/tortious interference claim against Acuity, the circuit court noted that Rader
had not “offered any proof” of the five elements required to establish a tortious
interference claim. Moreover, the court observed that since filing his complaint,
Rader had “argued exclusively in terms of bad faith” with respect to his claim
against Acuity. The court therefore stated that to the extent Rader “intended to
assert a claim under a theory of tortious interference, it has not been sufficiently
developed to be considered.” As for Rader’s bad faith claim, the court concluded
he did not have standing to assert that claim because he was not the named insured
under the Acuity policy and was instead a third-party claimant. The court cited
Kranzush for the proposition that an insurer “owes no duty to the third-party
claimant to settle or to negotiate in good faith.” Kranzush, 103 Wis. 2d at 72.

¶20 The circuit court therefore denied Rader’s summary judgment
motions regarding his tortious interference/bad faith claim against Acuity and
instead granted Acuity summary judgment on that claim. The court held, however,
that Acuity would remain a party to the action because of its potential liability for
Rader’s remaining claims under the direct action statute, WIS. STAT. § 632.24.
Accordingly, the court concluded its written decision was not a final order for
purposes of appeal because it did not “fully dispose of the entire matter in litigation
as to any party.”

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¶21 On January 18, 2019—one day after the circuit court issued its written
decision on Rader’s pending motions—Rader filed a notice of appeal from the
court’s decision. On January 22, Rader filed a petition for leave to appeal the court’s
decision under WIS. STAT. § 808.03(2).

¶22 Two days later, on January 24, 2019, the parties entered into a written
stipulation for dismissal, by which they agreed that all of Rader’s remaining claims
against Pine Ridge and Acuity would be dismissed on the merits and with prejudice.
The stipulation did not affect Rader’s bad faith/tortious interference claim against
Acuity, which had already been dismissed. Instead, the stipulation stated it was
intended to “dismiss all presently remaining claims between the parties with
prejudice and bring finality to this circuit-court action, allowing [Rader] to appeal
the Court’s January 17, 2019, decision … as a matter of right.” In accordance with
the parties’ stipulation, the circuit court entered a final order dismissing Rader’s
remaining claims against Pine Ridge and Acuity, and Rader now appeals.

DISCUSSION

¶23 As noted above, the statement of issues in Rader’s brief-in-chief
purports to raise two issues for our review: (1) did the circuit court lack subject
matter jurisdiction over this lawsuit; and (2) did the court err by denying Rader’s
October 9, 2018 summary judgment motion seeking $1,834,000, plus 12% interest
under WIS. STAT. § 628.46(1). We address each of those issues below. Thereafter,
we address three unrelated arguments that Rader appears to raise at various points
in his appellate briefs.

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I. Subject matter jurisdiction

¶24 Subject matter jurisdiction refers to the power of a court to decide
certain types of actions. City of Eau Claire v. Booth, 2016 WI 65, ¶7, 370 Wis. 2d
595, 882 N.W.2d 738. We independently review whether a circuit court had subject
matter jurisdiction over a particular case. Id., ¶6.

¶25 Wisconsin circuit courts derive their subject matter jurisdiction from
our state constitution, which states, in relevant part: “Except as otherwise provided
by law, the circuit court shall have original jurisdiction in all matters civil and
criminal within this state.” WIS. CONST. art. VII, § 8. WISCONSIN STAT. § 753.03,
in turn, provides that circuit courts have “the general jurisdiction prescribed for them
by article VII of the constitution” and have “power to hear and determine, within
their respective circuits, all civil and criminal actions and proceedings unless
exclusive jurisdiction is given to some other court.” Rader does not assert that any
exception to the circuit court’s general subject matter jurisdiction applies in this
case, nor does he argue that another court has been granted “exclusive jurisdiction”
over this action. We therefore reject Rader’s argument that the circuit court lacked
subject matter jurisdiction.

¶26 A circuit court’s ability to exercise its subject matter jurisdiction may
be affected by noncompliance with statutory requirements pertaining to the
invocation of the court’s jurisdiction in individual cases. Booth, 370 Wis. 2d 595,
¶7. However, noncompliance with statutory mandates merely affects a court’s
competency, which is not jurisdictional and which instead refers to a court’s power
to exercise its subject matter jurisdiction in a particular case. Id. Rader does not
develop any argument that the circuit court in this case lacked competency to
exercise its subject matter jurisdiction over his lawsuit. We therefore decline to

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address that issue. See Industrial Risk Insurers v. American Eng’g Testing, Inc.,
2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (we will not abandon our
neutrality to develop arguments for a party).

¶27 Ultimately, we agree with the defendants and the circuit court that
Rader’s arguments purportedly relating to subject matter jurisdiction actually
pertain to venue. “[T]he basic function of venue statutes is to set a fair and
convenient location for trial.” Voit v. Madison Newspapers, Inc., 116 Wis. 2d 217,
224, 341 N.W.2d 693 (1984). “A defect in venue is not jurisdictional and does not
affect the competence of the court.” Kohlbeck v. Reliance Constr. Co., 2002 WI
App 142, ¶20, 256 Wis. 2d 235, 647 N.W.2d 277 (quoting Judicial Council Note,
1983, WIS. STAT. § 801.50).

¶28 In this case, Judge Borowski granted Pine Ridge and Acuity’s motion
to change venue under WIS. STAT. § 801.52, which provides that a court “may at
any time, upon its own motion, the motion of a party or the stipulation of the parties,
change the venue to any county in the interest of justice or for the convenience of
the parties or witnesses.” We review a circuit court’s decision on a motion to change
venue for an erroneous exercise of discretion. See State v. Hereford, 224 Wis. 2d
605, 612, 592 N.W.2d 247 (Ct. App. 1999). Here, however, Rader does not develop
any argument that Judge Borowski erroneously exercised his discretion by granting
Pine Ridge and Acuity’s motion to change venue. Again, we will not abandon our
neutrality to develop such an argument for him. See Industrial Risk Insurers, 318
Wis. 2d 148, ¶25.

¶29 Moreover, the appellate record does not include a transcript of the
January 5, 2018 hearing during which Judge Borowski conditionally granted the
motion to change venue. It is the appellant’s burden to ensure that the record is

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sufficient for us to review the issues raised on appeal, and we assume that any
missing materials support the circuit court’s decision. See State Bank of Hartland
v. Arndt, 129 Wis. 2d 411, 423, 385 N.W.2d 219 (Ct. App. 1986). We therefore
assume that the missing transcript of the January 5, 2018 hearing supports
Judge Borowski’s discretionary decision to grant Pine Ridge and Acuity’s motion
to change venue. Accordingly, that decision provides no basis for reversal.

II. Denial of Rader’s October 9, 2018 summary judgment motion

¶30 Rader next argues the circuit court erred by denying his October 9,
2018 summary judgment motion, which asked the court to grant him judgment in
the amount of $1,834,000, plus 12% interest under WIS. STAT. § 628.46(1). As
Pine Ridge and Acuity correctly note, however, the court did not deny Rader’s
summary judgment motion. Instead, the court struck the motion as untimely,
without considering its merits.

¶31 The circuit court properly concluded that Rader’s October 9, 2018
summary judgment motion was untimely. WISCONSIN STAT. § 802.08(1) provides
that a party may file a summary judgment motion “within 8 months of the filing of
a summons and complaint or within the time set in a scheduling order under
s. 802.10.” Rader filed his October 9, 2018 summary judgment motion more than
one year after he filed his summons and complaint. Nothing in the court’s
September 27, 2018 scheduling order extended the time for Rader to file a summary
judgment motion. As such, Rader’s October 9, 2018 motion was clearly untimely.
Moreover, Rader does not argue on appeal that the motion was timely filed. An
appellant’s failure to address the grounds on which the circuit court ruled constitutes
a concession of the ruling’s validity. Schlieper v. DNR, 188 Wis. 2d 318, 322, 525
N.W.2d 99 (Ct. App. 1994).

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¶32 Whether to permit a party to file a summary judgment motion after
the eight-month time limit in WIS. STAT. § 802.08(1) has elapsed lies within the
circuit court’s discretion. See Lentz v. Young, 195 Wis. 2d 457, 465-66, 536
N.W.2d 451 (Ct. App. 1995), overruled on other grounds by Maple Grove Country
Club Inc. v. Maple Grove Estates Sanitary Dist., 2019 WI 43, ¶¶46-48, 386 Wis. 2d
425, 926 N.W.2d 184. A circuit court also has discretion to impose sanctions based
on a party’s untimely filing. Hefty v. Strickhouser, 2008 WI 96, ¶28, 312 Wis. 2d
530, 752 N.W.2d 820. Rader does not develop any argument that the circuit court
erroneously exercised its discretion either by failing to extend the time for him to
file a summary judgment motion or by striking his untimely motion. Yet again, we
will not abandon our neutrality to develop those arguments for him. See Industrial
Risk Insurers, 318 Wis. 2d 148, ¶25. Instead, for the reasons explained above, we
conclude the court properly struck Rader’s October 9, 2018 summary judgment
motion as untimely.

III. Rader’s other arguments

¶33 We now turn to three additional arguments that Rader appears to raise
at various points in his appellate briefs. First, Rader asserts that Acuity lacks clean
hands due to a conflict of interest. This argument is undeveloped. The clean hands
doctrine refers to “the equitable doctrine that a plaintiff who seeks affirmative
equitable relief must have ‘clean hands’ before the court will entertain his [or her]
plea.” S & M Rotogravure Serv., Inc., v. Baer, 77 Wis. 2d 454, 466, 252 N.W.2d
913 (1977). Rader does not explain why he believes the clean hands doctrine applies
in this case, where Acuity is not the plaintiff and is not seeking any affirmative
equitable relief. Nor does Rader explain why he believes Acuity’s clean hands—or
lack thereof—are relevant to the circuit court’s rulings on his jurisdictional motion

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or his October 9, 2018 summary judgment motion. We therefore decline to address
Rader’s argument that Acuity lacks clean hands.

¶34 Rader also appears to argue that Pine Ridge and Acuity’s answer to
his complaint was deficient because it merely denied the allegations in paragraphs
four through fifteen of the complaint and “put … Larry Rader to his strictest proof
of such allegations.” Rader asserts such denials run afoul of WIS. STAT. § 802.02(2),
which states that a party “shall admit or deny the averments upon which the adverse
party relies” and that denials “shall fairly meet the substance of the averments
denied.” Rader also asserts “there is no strictest proof required under [WIS. STAT.
§ 628.46(1)],” and Pine Ridge and Acuity’s answer therefore “imposes a higher
standard of proof on [Rader] in order to be paid under the [Acuity] policy, or bad
faith per se.”

¶35 We decline to address this issue because Rader failed to raise it in the
circuit court. Rader never moved for a default judgment under WIS. STAT. § 806.02,
nor did he move to strike Pine Ridge and Acuity’s answer as insufficient under WIS.
STAT. § 802.06(6). In addition, Rader did not argue as a basis for any of his
summary judgment motions that Pine Ridge and Acuity’s answer had failed to join
issue. We need not address issues raised for the first time on appeal, and we decline
to do so here. See State v. Van Camp, 213 Wis. 2d 131, 144, 569 N.W.2d 577
(1997).

¶36 Finally, to the extent Rader intends to argue that the circuit court erred
by granting summary judgment to Acuity on his bad faith/tortious interference
claim, we disagree. The court correctly observed that Rader had not offered any
proof of the five elements necessary to establish a tortious interference claim. The
court also correctly noted that since filing his complaint, Rader had “argued

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exclusively in terms of bad faith.” The court therefore stated that to the extent Rader
“intended to assert a claim under a theory of tortious interference, it has not been
sufficiently developed to be considered.” We agree with the court’s analysis. In
addition, we observe that Rader’s appellate briefs do not address the court’s decision
regarding his tortious interference claim, and he has therefore conceded the validity
of the court’s ruling on that point. See Schlieper, 188 Wis. 2d at 322.

¶37 As for Rader’s bad faith claim, the circuit court correctly concluded
Rader did not have standing to assert that claim because he was not the named
insured under the Acuity policy and was instead a third-party claimant. In
Kranzush, the plaintiff asked our supreme court to recognize a new type of bad faith
claim premised on “liability of the insurer to a third-party claimant for the insurer’s
failure to settle the claim where the liability of the insured is reasonably clear.”
Kranzush, 103 Wis. 2d at 62-63. The court refused to do so, reasoning:

The insurer’s duty of good faith and fair dealing arises from
the insurance contract and runs to the insured. No such duty
can be implied in favor of the claimant from the contract
since the claimant is a stranger to the contract and to the
fiduciary relationship it signifies. Nor can a claimant
reasonably expect there to be such a duty, inasmuch as the
insurer and the insured are aligned in interest against the
claimant. In the absence of any such duty, the third-party
claimant cannot assert a claim for failing to settle his claim,
and we therefore decline to recognize such a claim for relief
under common law tort principles.

Id. at 73-74. The court further concluded that no such claim existed “by virtue of
statutory or administrative regulatory provisions.” Id. at 74-83.

¶38 Based on our supreme court’s holding in Kranzush, the circuit court
properly concluded that Rader, a third-party claimant, could not assert a bad faith
claim against Acuity, Pine Ridge’s insurer. We therefore affirm the court’s grant of
summary judgment to Acuity on Rader’s bad faith claim.

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By the Court.—Order affirmed.

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

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