Ted Marshall v. Dawn M. Brogle

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 9, 2021
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. 2019AP716 Cir. Ct. No. 2018PR34

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN RE THE ESTATE OF VAWN C. MARSHALL:

TED MARSHALL AND DIANE NOVILLO,

APPELLANTS,

V.

DAWN M. BROGLE,

RESPONDENT.

APPEAL from an order of the circuit court for Vilas County:
NEAL A. NIELSEN III, 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. 2019AP716

¶1 PER CURIAM. Ted Marshall (“Ted”) and Diane Novillo, pro se,
appeal an order dismissing their petition against Dawn Brogle in this trust dispute.
Ted and Novillo argue that the circuit court erred by requiring the petitioners to
post a $100,000 performance bond pursuant to WIS. STAT. § 879.39 (2017-18),1
and by dismissing the petition for lack of proof. Ted and Novillo also allege that
the court was biased against them. We reject these arguments and affirm the
order.

BACKGROUND

¶2 Brogle, Novillo, Ted Marshall, and Deborah Marshall are the adult
children of Vawn Marshall. In 1997, Vawn, an Arizona resident, created the
“Vawn C. Marshall Revocable Living Trust,” designating Brogle as trustee upon
Vawn’s “death, resignation, or incapacity.” Over the ensuing years, Vawn whited
out portions of the trust document and inserted handwritten changes. In 2007,
Vawn signed a “First Amendment” to the trust that incorporated all of her
handwritten changes.

¶3 After Vawn passed away on May 6, 2012, Brogle became the
successor trustee and subsequently distributed various assets. Dissatisfied with the
distribution of trust assets and Brogle’s unwillingness to provide requested trust
documents, Ted, Deborah, Novillo, and Novillo’s son, Keaton Barker, filed the
underlying action. The petitioners alleged that: (1) Brogle breached her duties as
trustee and exerted undue influence upon Vawn in order to obtain a windfall;
(2) Vawn was not competent to enter into the trust in 1997 or to amend it

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

2
No. 2019AP716

thereafter; and (3) Brogle had deceived the petitioners and diverted or stole trust
assets. The petition sought: (1) a copy of the trust documents; (2) Brogle’s
removal as trustee; (3) appointment of both a successor trustee and a receiver;
(4) a declaration that Brogle had breached her fiduciary duty; (5) attorney fees;
and (6) damages.

¶4 The circuit court ordered Brogle to produce a copy of the trust
documents and an accounting of the trust assets, and Brogle complied. Brogle
then moved the court for a bond, and the court ordered the petitioners to deposit a
$100,000 performance bond with the Vilas County Register in Probate’s office “to
protect the trust and the trustee from any unnecessary Court costs or [attorney]
fees incurred” in the matter.

¶5 At a subsequent status hearing, the circuit court noted that the
performance bond had not been posted, as ordered, and Ted informed the court
that the petitioners would not pay the bond. The petitioners nevertheless sought a
ruling on the petition without presenting any further evidence or testimony. The
court dismissed the petition, citing the lack of proof. Ted and Novillo now appeal.

DISCUSSION

¶6 Ted and Novillo argue that the circuit court erred by requiring the
petitioners to post a $100,000 performance bond. We disagree. A circuit court
has discretion to order a performance bond under WIS. STAT. § 879.39, which
provides:

3
No. 2019AP716

In all cases under [WIS. STAT.] s. 879.33[2] the court may
require the claimant or contestant to give a bond in such
sum and with such surety as is approved by the court, to the
effect that he or she will pay all costs that may be awarded
by the court in the proceeding against him or her. A
judgment for costs shall be against the claimant or
contestant and the surety.

Discretionary decisions are reviewed for an erroneous exercise of discretion. See
Schneller v. St. Mary’s Hosp. Med. Ctr., 162 Wis. 2d 296, 305, 470 N.W.2d 873
(1991). Under that standard, we affirm the circuit court if it “examined the
relevant facts, applied a proper standard of law, and, using a demonstrated rational
process, reached a conclusion that a reasonable judge could reach.” Hefty v.
Strickhouser, 2008 WI 96, ¶71, 312 Wis. 2d 530, 752 N.W.2d 820.

¶7 In requesting a performance bond, Brogle emphasized her duty, as
trustee, to defend the trust. Brogle added: “[I]n the event the petitioners lose … it
is an appropriate remedy to reimburse the trustee theoretically from trust assets
which have now been distributed or in the alternative from the people who are
attacking indirectly their fees.” Brogle further argued that a bond was appropriate
because the petitioners, who were representing themselves, lived out of state and
“this type of litigation through family members tends to be very emotionally
driven.”

¶8 Acknowledging that there were no longer any assets in the trust, the
circuit court determined that requiring a performance bond was appropriate before
the matter proceeded any further. The court noted that given the nature of the
petitioners’ claims—including a challenge to Vawn’s competency when she

2
WISCONSIN STAT. § 879.33 allows costs to a prevailing party in all appealable
contested matters in court.

4
No. 2019AP716

created the trust, the cost of “expert testimony, depositions, review of medical
records, testimony of other people, [and] getting the witnesses … to court”—their
challenge presented “a huge uphill battle.” The court concluded that a
performance bond was warranted because there was “no other way to make
Ms. Brogle whole if she is put to defending herself as trustee in this matter and is
successful.” Under these circumstances, the court reasonably exercised its
discretion by ordering a $100,000 bond as security for costs. The petitioners’
failure to pay the bond, on its own, justified dismissal of their action. Because the
court nevertheless dismissed the petition on its merits, we will also review that
decision.

¶9 As the circuit court recognized, the petitioners failed to present
adequate proof to justify the relief they sought. The court reviewed the trust
documents and determined that the level of detail in the accounting provided by
Brogle was “standard for matters of trust accounting” and, in the absence of other
proof, the accounting was appropriate. Moreover, the accounting appeared to
accurately reflect the disposition of trust assets to those petitioners named as
beneficiaries under the trust. Specifically, the trust left real estate to Deborah and
a car to Ted. Ted acknowledged his receipt of the car. To the extent Deborah
alleged that Brogle sold the real estate at $11,000 below fair market value, leaving
Deborah with less money than she believed she was entitled, the court found there
was no evidence to support that claim.

¶10 The circuit court likewise found no evidence to support the
petitioners’ claims that Vawn lacked competency to create the trust in 1997, or
that she was otherwise subject to undue influence by Brogle. To show undue
influence, the petitioners had to prove Vawn’s susceptibility to undue influence,
together with Brogle’s opportunity and disposition to influence, and the

5
No. 2019AP716

achievement of a coveted result. See Hoeft v. Friedli, 164 Wis. 2d 178, 185, 473
N.W.2d 604 (Ct. App. 1991). In the alternative, the petitioners could attempt to
show that a confidential or fiduciary relationship existed between Vawn and
Brogle, and that there were suspicious circumstances surrounding the creation of
the trust. See id. at 184. The burden was on the petitioners to prove undue
influence by clear, satisfactory, and convincing evidence. See Lee v. Kamesar,
81 Wis. 2d 151, 159, 259 N.W.2d 733 (1977).

¶11 Here, the circuit court recognized that the challenge to Vawn’s
competency more than twenty years after the fact would have required proof
through expert testimony and witnesses, and the petitioners had not produced such
proof. The court was ultimately “satisfied that … most of the questions that the
[petitioners] had resulted from … poor communication between family members.”
The court further acknowledged that Brogle’s initial failure to provide trust
documents to her siblings “contributed to suspicions of inappropriate financial
dealings.” Upon its review of the trust documents, however, the court determined
that “most of the children really don’t have a claim in the trust.” Ted was named
as a beneficiary only with respect to receiving an automobile that he
acknowledged receiving. Deborah’s interest related to the real estate, which the
court addressed, and Novillo only had a contingent interest in the trust as a
beneficiary in the event of an “other person[’]s death.”

¶12 Ted and Novillo nevertheless assert that Vawn’s informal changes to
the trust document constituted “unusual circumstances” under the law. There is,
however, no record support for such a claim. In any event, the 2007 amendment
formalized Vawn’s handwritten changes and, at all times relevant to this action,
the petitioners knew of that amendment, having attached the same to their petition.
The court, therefore, properly dismissed these claims for lack of proof.

6
No. 2019AP716

¶13 Next, Ted and Novillo allege that “judicial bias and mistreatment” of
the pro se petitioners warrant reversal of the order on appeal. There is no basis in
the record for concluding that any actions or comments on the part of the circuit
court established bias. Rather, the bulk of the court’s comments were innocuous
and seemingly aimed at trying to help the pro se petitioners, consistent with the
Code of Judicial Conduct. Specifically, SCR 60.04(1)(hm) provides that “[a]
judge may make reasonable efforts, consistent with the law and court rules, to
facilitate the ability of all litigants, including self-represented litigants, to be fairly
heard.” The court emphasized the burden of proof for challenging Vawn’s
competency in an attempt to encourage the out-of-state, pro se petitioners to
consult an attorney.

¶14 Ted and Novillo also allege that the circuit court exhibited bias by
“completely ignoring” their claim that Brogle’s attorney “harassed” Deborah by
contacting her directly. However, nothing in the record establishes any sort of
harassment and, as the court properly informed them, counsel had “every
authority” to contact each of them directly because they were proceeding pro se.

¶15 Finally, Ted and Novillo intimate that the circuit court exhibited bias
when it overlooked Brogle’s earlier failures to perform the duties of a trustee, such
as providing the trust documents when requested by her siblings. Ted and
Novillo, however, fail to establish that the court erroneously exercised its
discretion by simply curing any alleged breach by Brogle rather than removing her
as trustee, especially given that the trust administration is now complete.
Ultimately, we discern no bias against, or mistreatment of, the petitioners by the
circuit court.

7
No. 2019AP716

By the Court.—Order affirmed.

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

8