Patrick S. Sweeney v. Frank Liquor Co. Inc.

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.
August 5, 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. 2020AP435 Cir. Ct. No. 2019CV2816

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

PATRICK S. SWEENEY,

PLAINTIFF-APPELLANT,

PAMELA A. SWEENEY,

PLAINTIFF,

V.

FRANK LIQUOR CO. INC., A WISCONSIN CORPORATION, JOEL FRANK,
JANNA FRANK, JUSTIN FRANK, FAIRVIEW RIDGE LLC, A WISCONSIN
LIMITED LIABILITY COMPANY, FAIRVIEW RIDGE II LLC, A
WISCONSIN LIMITED LIABILITY COMPANY AND FAIRVIEW RIDGE III
LLC, A WISCONSIN LIMITED LIABILITY COMPANY,

DEFENDANTS-RESPONDENTS,

JOHN DOE, JANE DOE, DOE PARTNERSHIPS, XYZ INSURANCE
COMPANY, ABC INSURANCE COMPANY AND SBCP BANCORP INC., A
WISCONSIN BANKING ASSOCIATION,

DEFENDANTS.
No. 2020AP435

APPEAL from a judgment of the circuit court for Dane County:
STEPHEN E. EHLKE, Judge. Affirmed.

Before Kloppenburg, Fitzpatrick, and Graham, 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).

¶1 PER CURIAM. Patrick S. Sweeney appeals a final order and
judgment dismissing his claims against Frank Liquor Co. Inc., Fairview Ridge
LLC, Fairview Ridge II LLC, Fairview Ridge III LLC, Joel Frank, Janna Frank,
and Justin Frank.1 Sweeney’s claims arise out of a business relationship he had
with Joel Frank and Frank Liquor, which spanned several years and ended no later
than 2013. Sweeney alleges that he is owed various fees for management and
consulting work.

¶2 We conclude that the circuit court correctly determined that
Sweeney’s claims against the Frank Defendants are barred by the applicable
statute of limitations. We further conclude that, even if the court committed any
of the procedural errors Sweeney claims on appeal, any error was harmless.
Accordingly, we affirm.

1
We refer to this group of defendants collectively as the “Frank Defendants.” We
sometimes refer to Joel Frank individually as “Frank,” and to Frank Liquor Co., Inc. as “Frank
Liquor.” For purposes of this opinion, we assume that Joel Frank is an owner or agent of Frank
Liquor.

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BACKGROUND

¶3 The allegations in Sweeney’s complaint are hotly contested, but we
assume that the following factual allegations are true for purposes of reviewing the
circuit court’s dismissal order.

¶4 In December 2004, Sweeney learned about a commercial real estate
property available for purchase in Middleton, Wisconsin. Sweeney and Frank
Liquor formed a limited liability company called Fairview Ridge LLC, which
purchased the property. The plan was for Sweeney to manage the property, and
the parties agreed to determine an appropriate management fee at some future
date.

¶5 Sweeney found a tenant and negotiated a lease in 2006. He
anticipated receiving consulting fees for such services. He was not immediately
paid but believed that he would be compensated when the success of the
investment could be better determined.

¶6 Then, in preparation for a build-out of the property, Sweeney
secured the necessary permits and chose a lender. After a loan was secured,
Sweeney requested payment for the management and consulting fees. Joel Frank
indicated that there were no funds available from the loan to pay those fees and
that Sweeney would have to wait for a future “cash event” to be compensated.

¶7 In October 2011, the tenant notified Sweeney of its intent to vacate
the property. The parties agreed that Sweeney would be “promptly” paid an
additional consulting fee for finding another tenant or a buyer. In January 2013,
Sweeney found a new tenant and finalized a new lease.

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¶8 In “late spring of 2013,” Sweeney asked Joel Frank about payment
for the fees Sweeney was owed.2 In response to this inquiry, Frank stated that
“neither [the consulting fees] nor [the management fee] nor any other fees that
may be due [to Sweeney] would ever be paid.” Sweeney and Frank have not
spoken since that conversation.3

¶9 Previously, in July 2012, Sweeney’s residential lender, State Bank of
Cross Plains, obtained a judgment of foreclosure against Sweeney. Sweeney’s
mortgage loan had been secured in part by his membership interests in Fairview
Ridge and two subsequently created entities. As we understand the allegations in
the complaint, State Bank obtained Sweeney’s membership interests in these
entities as a consequence of the foreclosure. In the fall of 2013, Sweeney learned
that State Bank sold these membership interests to Frank Liquor.

¶10 We now turn to the procedural events that led to this appeal. On
October 10, 2019, Sweeney and his wife4 filed a lawsuit that, in pertinent part,

2
On appeal, Sweeney asserts that this conversation occurred in April of 2013. We use
the less specific timeframe alleged in the complaint, “late spring of 2013,” for purposes of our
review of the circuit court’s decision on the motion to dismiss the complaint.
3
According to the complaint, a third-party loan Sweeney “was taking” from Fairview
Ridge was “putting strain” on the business relationship that Sweeney had with Joel Frank.
Although the complaint makes a number of references to a “third party loan” and a debt that
Sweeney had incurred to Fairview Ridge, the Frank Defendants contend that the “third party
loan” was actually an embezzlement perpetrated by Sweeney that resulted in Sweeney pleading
guilty to federal bankruptcy fraud.

As discussed, for purposes of this appeal, we assume that the allegations in the complaint
are true. Our opinion does not depend on any of the factual contentions put forward by the Frank
Defendants.
4
Sweeney’s wife, Pamela Sweeney, was removed as an appellant to this appeal by order
of this court because she did not personally sign the notice of appeal. As a result, our jurisdiction
over this matter is limited to the appeal brought by Patrick Sweeney.

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No. 2020AP435

makes claims against the Frank Defendants seeking payment of the management
and consulting fees to which Sweeney alleges he is entitled. These claims are for
breach of oral contract, breach of written contract, breach of the implied duty of
good faith and fair dealing, breach of implied contract, promissory estoppel, and
unjust enrichment. For ease of reference, we refer to these contract and quasi-
contract claims collectively as Sweeney’s “contract-based claims.”5

¶11 The Frank Defendants moved to dismiss the complaint arguing,
among other things, that the contract-based claims are barred by the six-year
statute of limitations set forth in WIS. STAT. § 893.43. Specifically, the Frank
Defendants argued that the “late spring of 2013,” when Frank allegedly told
Sweeney he would not be paid any fees, is the latest date on which the statute of
limitations for Sweeney’s contract-based claims for payment of fees started to run.
The Frank Defendants further argued that, because the complaint was filed in
October 2019, the contract-based claims were untimely.

¶12 Sweeney responded with a series of motions, and we provide
additional facts about how the circuit court addressed these motions below.
Ultimately, the court concluded that all of Sweeney’s claims against the Frank
Defendants are barred by the applicable statutes of limitations, and the court
dismissed his complaint in its entirety.

5
The complaint also included a claim for quantum meruit, but Sweeney does not contest
the dismissal of that claim on appeal and we discuss it no further.

In addition to the contract-based claims, Sweeney’s complaint also includes various tort
claims against the Frank Defendants and State Bank, including claims that they conspired to
cause Frank Liquor to breach fiduciary duties it owed to Sweeney so that Frank Liquor could
obtain Sweeney’s membership interest at a discount price. The circuit court dismissed the tort
claims under the three-year statute of limitations found in WIS. STAT. § 893.57, and Sweeney
does not contest their dismissal on appeal.

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No. 2020AP435

¶13 Sweeney appeals the circuit court’s dismissal of his contract-based
claims against the Frank Defendants.

DISCUSSION

¶14 “A motion to dismiss for failure to state a claim tests the legal
sufficiency of the complaint.” Doe v. Archdiocese of Milwaukee, 211 Wis. 2d
312, 331, 565 N.W.2d 94 (1997). In reviewing a circuit court order granting a
motion to dismiss, we liberally construe the pleadings and accept the facts as set
forth in the complaint, as well as all reasonable inferences from those facts. Swan
v. LaFollette, 231 Wis. 2d 633, 637-38, 605 N.W.2d 640 (Ct. App. 1999).
However, we are “not required to assume as true legal conclusions pled by the
plaintiffs.” Doe, 211 Wis. 2d at 331. Whether a complaint states a claim is a
question of law, which we decide de novo, although we benefit from the circuit
court’s analysis. Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶17,
356 Wis. 2d 665, 849 N.W.2d 693.

¶15 As stated above, this appeal focuses on Sweeney’s contract-based
claims against the Frank Defendants, which the circuit court dismissed based on
the applicable statute of limitations. In his appellate briefs, Sweeney asserts in
summary fashion that the dismissal of these claims was erroneous because the
court applied the wrong accrual date. Yet, the bulk of Sweeney’s briefs
concentrate on various asserted procedural errors, including the court’s denial of
the extension and reconsideration motions that Sweeney filed leading up to the
court’s decision to dismiss the complaint.

¶16 We begin by briefly discussing the applicable statute of limitations.
For reasons explained below, we conclude that Sweeney’s contract-based claims
are time barred and that the circuit court correctly dismissed them. We then turn

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No. 2020AP435

to the alleged procedural errors and conclude that any error that the court made
was harmless.

I

¶17 WISCONSIN STAT. § 893.43 provides a six-year statute of limitations
for “an action upon any contract, obligation, or liability, express or implied,
including an action to recover fees for professional services ….” WIS. STAT.
§ 893.43(1). This statute of limitations applies to claims for breach of contract,
express or implied. See CLL Assocs. Ltd. P’ship v. Arrowhead Pac. Corp., 174
Wis. 2d 604, 607, 613, 497 N.W.2d 115 (1993). The parties agree that this six-
year statute of limitations also applies to claims based on a quasi-contract theory,
including unjust enrichment and promissory estoppel.6 See generally Boldt v.
State, 101 Wis. 2d 566, 578, 305 N.W.2d 133 (1981).

¶18 Sweeney’s contract-based claims are premised upon the allegations
that the Frank Defendants agreed to pay him a management fee for services
performed from 2003-2006, consulting fees for services performed in 2006, and an
additional consulting fee for services performed from 2011 until January 2013.

6
Sweeney’s opening appellate brief also makes references to his claims for “an action
for accounting” and “set off.” According to Sweeney, these claims are subject to a “catch-all”
statute of limitations with an unspecified limitations period. Sweeney does not support this
assertion with citation to authority. During the circuit court proceedings, the Frank Defendants
argued that the claim for an accounting should be dismissed because the complaint does not
contain any facts that would give rise to an agency relationship, which is required to prove
entitlement to an accounting. They also argued that “set-off” is not a freestanding cause of
action, but is rather a type of relief. The Frank Defendants renew both arguments in their
response brief on appeal, and Sweeney does not respond to these arguments in his reply brief.
We therefore deem them conceded. See United Coop. v. Frontier FS Coop., 2007 WI App 197,
¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (appellant’s failure to respond in reply brief to an
argument made in response brief may be taken as a concession).

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No. 2020AP435

Each of Sweeney’s breach of contract claims, as well as his quasi-contract claims
for promissory estoppel and unjust enrichment, seek payment of these fees.

¶19 The circuit court dismissed Sweeney’s contract-based claims based
on WIS. STAT. § 893.43(1). The court relied, in part, on Sweeney’s failure to
submit any substantive response to the Frank Defendants’ statute-of-limitations-
based defense. The court referred to Sweeney’s failure to submit a substantive
response as a concession. However, it also independently determined that the
Frank Defendants’ defense was meritorious.

¶20 A contract claim “accrues at the moment the contract is breached,
regardless of whether the injured party knew or should have known that the breach
occurred.” CLL Assocs., 174 Wis. 2d at 607. As the circuit court explained, the
alleged breach was based on the non-payment of fees allegedly due to Sweeney.
Accepting the allegations in the complaint as true, the last moment that the
contract-based claims could accrue was in the late spring of 2013, when, according
to the complaint, Joel Frank unequivocally told Sweeney that he would not be paid
any of these fees.

¶21 Sweeney makes no principled arguments to the contrary. As stated
above, he did not advance any substantive argument on the merits during the
circuit court proceedings and, on appeal, he concedes that the six-year statute of
limitations applies to his breach of contract and quasi-contract claims. For the first
time in his opening appellate brief, Sweeney asserts that the claims did not accrue
until “the fall of 2013,” when Sweeney learned that Frank Liquor had purchased

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No. 2020AP435

his former membership interests in Fairview Ridge from State Bank.7 According
to Sweeney, Joel Frank’s statement that Sweeney would not be paid was, at best,
an “anticipatory breach,” and that Frank Liquor “was not capable of executing the
breach” prior to the fall of 2013. Sweeney further argues that the “actual breach”
occurred in the fall of 2013, and, therefore, the fall of 2013 is the correct accrual
date for his contract-based claims.

¶22 We disagree. Sweeney offers no authority to support his assertion
that the statement Joel Frank made in the spring of 2013, in which Frank stated
that Sweeney would never be paid, was an anticipatory breach of contract.8 As
stated above, Sweeney’s contract-based claims are based on a failure to pay
various fees that Sweeney allegedly earned between 2006 and January 2013. On
its face, the assertion Frank made in “the late spring of 2013” appears to instead be
a verbal confirmation that the fees that had not previously been paid to Sweeney
would never be paid.

¶23 Likewise, Sweeny does not explain in any meaningful or logical way
how Frank Liquor’s acquisition of membership interests that once belonged to

7
“Arguments raised for the first time on appeal are generally deemed forfeited.” Schill
v. Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶45 & n.21, 327 Wis. 2d 572, 786 N.W.2d 177. We
could decline to address Sweeney’s argument that the fall of 2013 is the correct accrual date on
grounds that Sweeney forfeited the argument by failing to raise it in the circuit court. However,
we choose to address this argument and explain why it lacks merit because this determination
helps illustrate why any procedural error was harmless.
8
An anticipatory breach occurs when a party, which has not yet been required to perform
its contractual obligations, has made a “definite and unequivocal manifestation” that it will not do
so when the time fixed for performance arrives. Wisconsin Dairy Fresh, Inc. v. Steel & Tube
Prod. Co., 20 Wis. 2d 415, 427, 122 N.W.2d 361 (1963). Sweeney cites Franconia Assocs. v.
United States, 536 U.S. 129, 144 (2002) for the premise that an anticipatory breach does not
necessarily start the clock on the statute of limitations for a breach of contract claim. We take no
issue with that premise, but Franconia Associates does not support Sweeney’s assertion that the
statement Joel Frank made about payment was an anticipatory breach.

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No. 2020AP435

Sweeney has any bearing on Fairview Ridge’s failure to pay fees for services
performed between 2006 and 2013. At best, we understand Sweeney to be
suggesting that the non-payment of these fees led to the bankruptcy proceedings,
which led to State Bank’s acquisition of Sweeney’s membership interests, which
led to Frank Liquor being able to purchase the membership interests from State
Bank, supposedly at a discount rate. However, even accepting Sweeney’s
allegations as true, contract-based claims accrue at the time of a breach, CLL
Assocs., 174 Wis. 2d at 607, not after a string of events that are caused by
consequences of a breach.9

¶24 Accordingly, we agree with the circuit court that the last alleged
event that had any bearing on the accrual of Sweeney’s contract-based claims
occurred when Joel Frank unequivocally told Sweeney that he would not be paid.
Therefore, the claims accrued at the very latest in the “late spring of 2013,” and,
giving Sweeney the benefit of all possible doubts, he needed to file his claims no
later than late spring of 2019. His complaint was filed in October 2019 and was,
at minimum, several months too late.10

¶25 The Frank Defendants advance additional arguments as to why
Sweeney’s complaint fails to state a claim. According to the Frank Defendants,

9
Sweeney’s argument appears to conflate his contract and tort claims. His claim—that
Frank Liquor breached fiduciary duties and conspired with others to improperly acquire
Sweeney’s membership interests—sounds in tort. See supra n.5. As discussed above, Sweeney
concedes that his tort claims were properly dismissed under the applicable statute of limitations.
10
To the extent that Sweeney attempts to make any other contrary arguments on appeal
regarding any statute of limitations and its respective accrual times, we reject them as
undeveloped and unsupported by binding legal precedent. See State v. Pettit, 171 Wis. 2d 627,
646-47, 492 N.W.2d 633 (Ct. App. 1992) (stating that we need not consider arguments that are
unsupported by adequate factual and legal citations or are otherwise undeveloped).

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No. 2020AP435

Sweeney’s claims are barred by issue preclusion, the statute of frauds, and an
agreement he signed to resolve claims related to his bankruptcy filing.
Additionally, they contend that Sweeney’s contract-based claims do not involve
any allegations against Janna Frank, Justin Frank, and two of the Fairview Ridge
entities, and that this is an independent reason to affirm the dismissal of the
complaint as to these defendants. Because our determination as to the statute of
limitations is dispositive, we do not address the Frank Defendants’ alternative
arguments. Barrows v. American Family Ins. Co., 2014 WI App 11, ¶9, 352 Wis.
2d 436, 842 N.W.2d 508 (“An appellate court need not address every issue raised
by the parties when one issue is dispositive.”).

II

¶26 We now turn to Sweeney’s procedural arguments, which center
around the notion that he was denied meaningful access to the courts. Before
addressing Sweeney’s procedural arguments, we describe the procedural posture
of this case in greater detail.

¶27 The Frank Defendants’ motion to dismiss was filed on December 3,
2019. The circuit court issued a briefing schedule, which established January 2,
2020, as Sweeney’s deadline to respond.

¶28 It is undisputed that Sweeney was incarcerated at that time. With his
wife’s assistance, he requested an extension to file a brief in opposition to the
motion to dismiss. The circuit court granted a thirty-two-day extension, meaning
that the deadline for the opposition brief was extended to February 3, 2020.

¶29 On January 29, 2020, as that deadline approached, Sweeney’s wife
requested a second extension. This time, the Frank Defendants objected. The

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No. 2020AP435

circuit court denied the request for a second extension and scheduled a hearing on
the motion to dismiss for March 5, 2020.

¶30 On February 14, 2020, Sweeney filed a motion for reconsideration
of the denial of his second extension request. The majority of the five-page
motion described difficulties Sweeney faced responding to the motion to dismiss
from prison. The final sentence of the motion requested that, “in the event the
court [were to deny his] request for an extension,” the court should “grant the
[Frank Defendants’] motion to dismiss without prejudice [and] grant leave to
amend [his] Complaint.” Notably, Sweeney did not actually file any motion for
leave to amend, nor did he describe how the complaint could be amended to defeat
the Frank Defendants’ statute of limitations defense.

¶31 Then, on February 28, 2020, Sweeney mailed a “supplemental brief
in opposition to defendants’ motion to dismiss” to the circuit court. The document
was received by the court on March 5, 2020, just before the motion to dismiss
hearing was to occur. The “supplemental brief” again requested additional time to
respond to the motion to dismiss. It did not address the merits of any of the Frank
Defendants’ substantive arguments.

¶32 The circuit court held the hearing as scheduled. Neither Sweeney
nor his wife appeared at the hearing. The court denied Sweeney’s motion for
reconsideration and struck the supplemental brief as untimely. Then, as stated
above, the court dismissed Sweeney’s claims based on the applicable statutes of
limitation—both based on Sweeney’s failure to file a brief and also on the court’s
independent review of the merits of the defense. The Frank Defendants submitted
a proposed order which granted summary judgment and dismissed Sweeney’s
claims “with prejudice and on the merits.” The court signed the order.

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No. 2020AP435

¶33 Sweeney argues that the circuit court committed multiple errors
leading up to its decision to dismiss his complaint. Among other things, Sweeney
argues that the court erred by denying him a second extension of time to file a
response brief and by denying the corresponding motion for reconsideration,
which he claims was necessary to allow him sufficient time to prepare a response
to the Frank Defendants’ motion to dismiss. Sweeney further asserts that the court
erred when it struck his “supplemental brief” dated February 28, 2020, which, he
argues, was timely under the prisoner mailbox rule.11 Finally, Sweeney argues
that the court erred by not granting his request for leave to amend the complaint.
As we understand it, Sweeney is arguing that, based on these procedural
violations, his right to meaningful access to the courts was violated. It appears
Sweeney believes that he was entitled to endless extensions of applicable
deadlines because the facilities where he was incarcerated did not provide him
with all the resources that he contends were necessary to submit a response brief.

¶34 We do not conclude that the circuit court committed any procedural
error, but even if it did, any possible error was harmless. This is because even
now, more than a year after the court granted the motion to dismiss, Sweeney has
not identified any legal argument or amendment to the complaint that he could
have made which would overcome the Frank Defendants’ statute-of-limitations
defense.

¶35 WISCONSIN STAT. § 805.18(2) provides in pertinent part:

11
See Houston v. Lack, 487 U.S. 266 (1988) (providing that a pro se prisoner’s notice of
appeal is “filed” for purposes of the filing deadline at the time it is delivered to prison
authorities).

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No. 2020AP435

No judgment shall be reversed or set aside or new
trial granted in any action or proceeding on the ground of ...
error as to any matter of pleading or procedure, unless in
the opinion of the court to which the application is made,
after an examination of the entire action or proceeding, it
shall appear that the error complained of has affected the
substantial rights of the party seeking to reverse or set aside
the judgment, or to secure a new trial.

For an error to affect the substantial rights of a party, there must be a reasonable
possibility that the error contributed to the outcome of the action or proceeding at
issue. Martindale v. Ripp, 2001 WI 113, ¶32, 246 Wis. 2d 67, 629 N.W.2d 698.

¶36 Here, there is no reasonable possibility that the errors asserted by
Sweeney contributed to the dismissal of his contract-based claims against the
Frank Defendants. As stated above, the circuit court properly dismissed these
claims based on the applicable statute of limitations. As also stated above,
Sweeney disregards the forfeiture rule on appeal and advances a legal argument
about the accrual of the six-year statute of limitations that he did not advance
during the circuit court proceedings; yet, as we have determined, this argument
entirely lacks merit. Sweeney does not identify any other argument that he could
have advanced, nor does he identify any amendment to the complaint that he could
have made, to overcome the Frank Defendants’ statute-of-limitations defense.
Because Sweeney does not show that the outcome would have been different had
the circuit court allowed him additional extensions, accepted his untimely
response brief, or granted a motion for leave to amend the complaint, we agree
with the Frank Defendants that, even if any of the asserted procedural errors were
committed by the court, they are harmless.

¶37 In sum, Sweeney has not provided any meritorious response to the
Frank Defendants’ motion to dismiss despite the additional time he has had to do
so. Accordingly, we conclude that Sweeney’s contract-based claims are time-

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No. 2020AP435

barred and that any procedural error made by the circuit court was harmless.
Therefore, we affirm.

By the Court.—Judgment affirmed.

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

15