Velocity Investments, LLC v. Mark Ziegler

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.
December 8, 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. 2021AP556 Cir. Ct. No. 2020SC723

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

VELOCITY INVESTMENTS, LLC,

PLAINTIFF-RESPONDENT,

V.

MARK ZIEGLER,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Manitowoc
County: JERILYN M. DIETZ, Judge. Affirmed.

¶1 GUNDRUM, P.J.1 Mark Ziegler appeals pro se from a judgment of
the circuit court entered in Velocity Investments, LLC’s favor. He claims the

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This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(a) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2021AP556

court erred by: (1) denying him a de novo hearing following a hearing before and
a ruling by a court commissioner and (2) “refusing to enforce the arbitration clause
contained in [a] Promissory note.” For the following reasons, we affirm.

¶2 Ziegler’s brief-in-chief fails to inform us of the basis for Velocity’s
lawsuit or identify the specific language of the “promissory note” he claims the
circuit court failed to “enforce.” Nonetheless, we divine the following from the
record.

¶3 Velocity’s complaint alleges that by “failing to pay as agreed”
Ziegler defaulted on a promissory note he had entered into on January 19, 2017.
The note, originally entered into with “WebBank,”2 was subsequently sold and
assigned to Velocity, “the lawful holder and owner of the [n]ote.”

¶4 Following a hearing before a court commissioner, the commissioner
entered a judgment in Velocity’s favor. Ziegler sought a de novo hearing in the
circuit court and subsequently filed a motion to compel private arbitration and to
dismiss or stay the proceedings. The court denied the motion and proceeded with
the hearing as scheduled. Velocity called one witness and admitted several
exhibits through that witness.

¶5 In his brief-in-chief, Ziegler devotes a mere three sentences to his
first issue. This issue is insufficiently developed as he lays out no argument in
support of his assertion that the circuit court denied him a de novo hearing. For
this reason alone, we do not consider this issue. See State v. Pettit, 171 Wis. 2d
627, 646, 492 N.W.2d 633 (Ct. App 1992) (“We may decline to review issues

2
Neither the parties nor the record identify what “WebBank” is.

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inadequately briefed.”). In addition, we note that Ziegler also forfeited this issue
as he failed to raise it during the hearing before the circuit court; he made no
suggestion that the hearing was deficient in any way much less that it specifically
deprived him of his statutory entitlement to a de novo hearing.

¶6 All that said, if we did consider this issue, we would do so de novo,
as it requires us to apply a statute, WIS. STAT. § 757.69(8), to a given set of facts.
See State v. Simmelink, 2014 WI App 102, ¶5, 357 Wis. 2d 430, 855 N.W.2d 437.
Section 757.69(8) provides in relevant part: “Any determination, order, or ruling
by a circuit court commissioner may be certified to the branch of court to which
the case has been assigned, upon a motion of any party for a hearing de novo.”
Here, the question is whether the hearing the circuit court afforded Ziegler in fact
constituted “a hearing de novo.”

¶7 In Stuligross v. Stuligross, 2009 WI App 25, ¶12, 316 Wis. 2d 344,
763 N.W.2d 241, we explained that a circuit court merely reviewing “whatever
record may have been made before [a] court commissioner” does not constitute a
“hearing de novo” under WIS. STAT. § 757.69(8). The hearing must be “literally a
new hearing,” which requires “a fresh look at the issues, including the taking of
testimony.” Stuligross, 316 Wis. 2d 344, ¶¶12-13. In one of his three sentences
on this issue, Ziegler echoes Stuligross, stating that “a party who requests a
hearing de novo under [WIS. STAT. § 757.69](8) is entitled to a hearing that
includes testimony from the parties and their witnesses.”

¶8 Ziegler is completely correct; however, this aids him not at all as he
received a de novo hearing at which Velocity presented exhibits as well as a
witness, whom Ziegler cross-examined, and Ziegler was afforded the opportunity
to present witnesses of his own, including himself, though he declined to do so. In

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making its ruling, the circuit court considered the evidence presented to it,
including the witness testimony, and the arguments by Velocity and Ziegler based
upon the evidence. An appellant bears the burden of demonstrating how the
circuit court erred. See Gaethke v. Pozder, 2017 WI App 38, ¶36, 376 Wis. 2d
448, 899 N.W.2d 381. Ziegler has failed to meet that burden with regard to this
issue.

¶9 Ziegler next complains about the circuit court denying his motion to
compel arbitration and dismiss or stay the proceedings. Interestingly, the only
relief he asks for, however, is for a “new trial de novo”; he does not ask us to
compel arbitration. Velocity contends the circuit court properly determined that
Ziegler waived his right to arbitration under the contract.

¶10 “Whether conduct amounts to a waiver of the right to arbitrate is a
mixed question of fact and law.” Meyer v. Classified Ins. Corp. of Wis., 179
Wis. 2d 386, 396, 507 N.W.2d 149 (Ct. App. 1993). The circuit court’s findings
of fact will not be set aside unless they are clearly erroneous. Id. However, we
review de novo the application of those facts to the waiver standard. Id.

¶11 The circuit court denied Ziegler’s motion to compel arbitration and
dismiss or stay proceedings just prior to the start of Ziegler’s de novo hearing.
The court explained that “it would be inefficient to stay this proceeding at this
stage to effect arbitration when a judgment [by the court commissioner] was
already entered,” “I believe we’re past the time where this agreement contemplates
a stay or dismissal for purposes of private arbitration,” and “we don’t have a

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specific election for mediation through triple A,[3] but I think that’s probably the
least pertinent part of this decision.” The court did not err.

¶12 In Meyer, 179 Wis. 2d at 391, 397-98, we considered Classified’s
“overall conduct during the pendency of the lawsuit” and held that Classified
waived its right to arbitration because it failed to follow the scheduling order in
filing its motion for a stay and referral to arbitration, waited until one week before
the trial to file it, and had not requested arbitration in its answer. We stated:

When parties are fully prepared for trial and the trial is
scheduled to begin in a matter of days, arbitration may lose
its value as an alternative to litigation. Conduct which
allows an action to proceed to a point where the purpose of
arbitration—to obtain a speedy, inexpensive and final
resolution of disputes—is frustrated is conduct that estops a
party from claiming a right to a stay of the proceedings and
referral for contractual arbitration.

Id. at 399.

¶13 The case now before us is similar to Meyer. In this case, Ziegler
first raised the issue of arbitration six months after Velocity filed suit against him.
He waited until the parties and taxpayers had incurred the time and expense of
conducting the hearing on this matter before the court commissioner. It was only
after Ziegler received an unfavorable ruling by the commissioner and filed for a de
novo hearing before the circuit court that he showed an interest in arbitration,
making his motion just two and one-half weeks before the start of that de novo
hearing. By waiting until arbitration had in large part “los[t] its value as an
alternative to litigation,” thus defeating the purpose of arbitration—“to obtain a
3
Triple A references the American Arbitration Association. The promissory note
allowed for “the election of either [party of] binding arbitration administered by the American
Arbitration Association or JAMS.”

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speedy, inexpensive and final resolution of disputes”—Ziegler has waived his
opportunity to “claim[] a right to a stay of the proceedings” and referral for
arbitration. See id.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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