Mecum Auction Inc. v. One 1978 Moto Guzzi LeMans ID 16566

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.
October 12, 2022
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. 2021AP1244 Cir. Ct. No. 2020CV492

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

MECUM AUCTION INC.,

PLAINTIFF-RESPONDENT,

V.

ONE 1978 MOTO GUZZI LEMANS ID 16566, ONE 2001 DUCATI MH
900E ID ZDMV300AA1B001002, ONE 1976 MV AUGUSTA 750 S
AMERICA ID 2210494, ONE 1952 NIMBUS 750 ID 10365 AND ONE
1954 NIMBUS 750 ID 12495,

DEFENDANTS,

EJNAR KRISTIANSEN,

INTERVENOR-APPELLANT.

APPEAL from an order of the circuit court for Walworth County:
DAVID M. REDDY, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Lazar, JJ.
No. 2021AP1244

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. Ejnar Kristiansen appeals from an order of the
circuit court. He claims the court erred in granting Mecum Auction Inc. summary
judgment, declaring Mecum the owner of several motorcycles and quieting title to
the motorcycles in Mecum. We affirm.

Background

¶2 Mecum hosts vehicle auctions throughout the United States at which
it sells vehicles on consignment. In September 2019, Kristiansen, a citizen of
Denmark, arranged for Mecum to auction five motorcycles at an event it was
hosting in Las Vegas, Nevada, from January 21, 2020, through January 26, 2020,
and the motorcycles were transported to Las Vegas for that purpose. The
motorcycles “sold” at the auction, but because Mecum had received no titles for
the motorcycles from Kristiansen, title could not transfer to the purchasers, and the
sales ultimately could not be consummated.

¶3 Mecum transported the motorcycles to its storage facility in
Walworth County where they have remained since, and it eventually filed this
declaratory judgment action and bill to quiet title to the motorcycles. Specifically,
Mecum sought an order quieting title to the motorcycles in Mecum and declaring
it their sole owner or, alternatively, if Kristiansen could establish his ownership of
the motorcycles, Mecum sought an order declaring him their sole owner and
quieting title in him conditioned upon him paying Mecum for the “damages
suffered by Mecum,” such as storage and other costs, “as a result of Kristiansen’s
failure to establish his alleged ownership bona fides to date.”

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¶4 In its complaint, Mecum alleged that “on January 24, 2020—the day
before the Motorcycles were set to be presented for Auction sale, Kristiansen had
failed to produce a certificate of title to any of the Motorcycles.” In his answer,
Kristiansen admitted that certificates of title had not been provided.

¶5 As part of the litigation that followed, on February 24, 2021, Mecum
served Kristiansen with requests for admission. Mecum specifically requested that
Kristiansen “[a]dmit that You are not the Owner” of each of the five specifically
identified motorcycles at issue in this case. The requests for admission also
requested, inter alia, that Kristiansen admit that “when you consigned the
Motorcycles for Auction, You were not acting as an authorized agent for the
Owner of any Motorcycle”; “You do not currently possess a certificate of title that
identifies You, by name, as the Owner of any Motorcycle”; “You do not currently
possess a certificate of title that identifies any entity owned or controlled by You,
by name, as the Owner of any Motorcycle”; “You never possessed a certificate of
title that identifies You, by name, as the Owner of any Motorcycle”; “You never
possessed a certificate of title that identifies any entity owned or controlled by
You, by name, as the Owner of any Motorcycle”; “You never provided Mecum
with a certificate of title that identified You as the Owner of any Motorcycle
named as a Defendant in the Complaint”; and “You never provided Mecum with a
certificate of title that identified any entity owned or controlled by You as the
Owner of any Motorcycle named as a Defendant in the Complaint.”

¶6 On March, 19, 2021, Kristiansen filed with the court an unsigned
document entitled “Third-Party Defendant, Ejnar Kristiansen’s Answers to
Plaintiff, Mecum Auction Inc.’s First Set of Requests for Admissions,” which
includes statements proclaiming that Kristiansen is the owner of the motorcycles.
(Some capitalization altered; bolding omitted.) The “answers” were accompanied

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by related documents. That same day, Mecum served Kristiansen with a letter,
which it also filed with the circuit court, informing him that his “answers” to
Mecum’s requests for admissions were “defective because they are not personally
signed by you” as required “for Responses to Requests for Admission under
Wis. Stat. § 804.11(1)(b).” The deadline for Kristiansen to submit signed
responses to the requests for admissions passed without Kristiansen submitting
any signed responses. Mecum subsequently moved for summary judgment, and in
doing so, again informed Kristiansen that his “answers” were defective due to not
being signed. Despite that additional notice and warning from Mecum,
Kristiansen never submitted signed answers to Mecum’s requests for admission.
The circuit court ultimately granted Mecum summary judgment, declaring it the
owner of the motorcycles and quieting title in Mecum. Kristiansen appeals.

Discussion

¶7 Our review of a circuit court’s decision on summary judgment is de
novo. Behrendt v. Gulf Underwriters Ins. Co., 2009 WI 71, ¶11, 318 Wis. 2d
622, 768 N.W.2d 568. Summary judgment is appropriate if there are no genuine
issues of material fact and the moving party is entitled to judgment as a matter of
law. Id.

¶8 With regard to requests for admissions like Mecum’s requests to
Kristiansen in this case, WIS. STAT. § 804.11(1)(b) (2019-20)1 specifies that “[t]he
matter is admitted unless, within 30 days after service of the request … the party
to whom the request is directed serves upon the party requesting the admission a

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2021AP1244

written answer or objection addressed to the matter, signed by the party or attorney
….” (Emphasis added.) Section 804.11(2) adds that “[a]ny matter admitted under
this section is conclusively established unless the court on motion permits
withdrawal or amendment of the admission.” (Emphasis added.) That subsection
also provides the circumstances under which a circuit court may permit
withdrawal or amendment of an admission.

¶9 In response to Mecum’s requests for admissions, Kristiansen filed
with the court an unsigned document entitled “Third-Party Defendant,
Ejnar Kristiansen’s Answers to Plaintiff, Mecum Auction Inc.’s First Set of
Requests for Admissions.” (Some capitalization altered; bolding omitted.)
Although Mecum immediately sent Kristiansen a letter referencing the relevant
statute and pointing out the fact that he had failed to sign the document,
Kristiansen nonetheless did not submit signed answers prior to the deadline for
submitting them. Then, after the deadline had passed, Mecum again brought the
issue to Kristiansen’s attention in its summary judgment brief. Kristiansen still
never provided signed answers.

¶10 Consistent with the plain language of WIS. STAT. § 804.11(1)(b) and
(2), all of Mecum’s requests to admit were “admitted” by Kristiansen, and the
matters therein were “conclusively established.”2 See, e.g., Mucek v. Nationwide
Commc’ns, Inc., 2002 WI App 60, ¶46, 252 Wis. 2d 426, 643 N.W.2d 98 (“By
failing to timely respond to the request for admissions, NCI admitted that it
commenced the Michigan lawsuit with full knowledge of the contract actually

2
Kristiansen did not move the circuit court to permit “withdrawal or amendment of the
admission” pursuant to WIS. STAT. § 804.11(2). Additionally, Mecum points out that Kristiansen
did not file any affidavits attesting to his claim of ownership.

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No. 2021AP1244

signed by Mucek, that doing so constituted an intentional disregard for Mucek’s
rights, that it commenced the lawsuit for the purpose of maliciously harassing and
intimidating Mucek into continuing to use NCI’s services, and that its worth was
$4,664,296.00.”); see also Bank of Two Rivers v. Zimmer, 112 Wis. 2d 624, 630-
31, 334 N.W.2d 230 (1983) (stating that “the mandatory language of
section 804.11(2), can foreclose all pertinent issues of fact on a motion for
summary judgment” and observing that federal courts “have held that summary
judgment based upon a party’s untimely or incomplete response to a request for
admission can be appropriate, since the party is deemed to have in effect admitted
all material facts contained therein, even though he may have denied them in his
pleadings”). As a result, the circuit court did not err in determining that it could
not declare Kristiansen the owner of the motorcycles.

¶11 This of course does not end our review as we must also consider
whether the circuit court properly declared Mecum the owner of the motorcycles.
For this, we look to relevant case law.

¶12 In State v. One 2013, Toyota Corolla/s/le, 2015 WI App 84, 365
Wis. 2d 582, 872 N.W.2d 98, we reiterated that in determining whether a person is
an “owner” of a vehicle, we consider the relevant factors of “possession, title,
control and financial stake.” Id., ¶6 (citing State v. Kirch, 222 Wis. 2d 598, 605-
07, 587 N.W.2d 919 (Ct. App. 1998)). Considering those factors here, we

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conclude that they support the circuit court’s declaration that Mecum is the owner
of the motorcycles.3

¶13 The record indicates that Kristiansen had the motorcycles
transported to Mecum in Las Vegas in November 2019. Following the auction,
Mecum transported them to its storage facility in Walworth County, Wisconsin,
and they have remained in Mecum’s possession and control ever since. As to title,
while Mecum is not currently titled as an owner of the motorcycles, apparently no
one else is either. Lastly, as to financial stake, while Mecum did not purchase the
motorcycles, the record indicates it has incurred costs and lost sales opportunities
in connection with them and will continue to incur storage costs, with no end in
sight. For these reasons, we affirm the circuit court’s order declaring Mecum the
owner of the motorcycles and quieting title in Mecum.4

3
In his appellate briefing, Kristiansen points to various documents as providing factual
support for his ownership of the motorcycles. The circuit court struck from the record many of
the documents Kristiansen relies upon, either due to them being filed only one day before the
summary judgment hearing, in contravention of scheduling requirements, or due to them being
included with the unsigned “answers” that Kristiansen filed in March 2021. We have already
pointed out that Kristiansen’s “answers” did not meet the requirement of WIS. STAT.
§ 804.11(1)(b) that they be signed. Other than arguments related to his unsigned “answers,”
Kristiansen develops no argument that the circuit court erred in striking the documents. See
ABKA Ltd. P’ship v. Board of Rev., 231 Wis. 2d 328, 349 n.9, 603 N.W.2d 217 (1999) (“This
court will not address undeveloped arguments.”).
4
Kristiansen argues that Mecum “cannot claim title to [the motorcycles] as bailee or
consignee.” Because he raises these arguments for the first time on appeal, we do not consider
them. Brooks v. Hayes, 133 Wis. 2d 228, 241, 395 N.W.2d 167 (1986) (“The general rule is that
this court will not consider arguments raised for the first time on appeal or review.”). Moreover,
we point out that it is not by virtue of any legal status as a consignee or bailee that Mecum is
declared to be the owner of the motorcycles but by virtue of the balance of the four State v. One
2013, Toyota Corolla/s/le, 2015 WI App 84, ¶6, 365 Wis. 2d 582, 872 N.W.2d 98, factors
discussed herein.

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No. 2021AP1244

By the Court.—Order affirmed.

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

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