Pauline Buchholz, as Trustee of the Trust Agreement v. Steven K. Schmidt

2024 WI App 47

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.
July 18, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP1400 Cir. Ct. No. 2020CV121

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

PAULINE BUCHHOLZ, AS TRUSTEE OF THE TRUST AGREEMENT,

PLAINTIFF-RESPONDENT,

V.

STEVEN K. SCHMIDT,

DEFENDANT-APPELLANT,

LINDA M. SCHMIDT,

DEFENDANT.

APPEAL from a judgment of the circuit court for Dodge County:
JOSEPH G. SCIASCIA, Judge. Affirmed in part; reversed in part, and cause
remanded with directions.

Before Kloppenburg, P.J., Blanchard, and Graham, JJ.
No. 2023AP1400

¶1 KLOPPENBURG, P.J. In this appeal, Steven Schmidt challenges
multiple pretrial rulings by the Dodge County circuit court and the judgment
entered by the court after a jury trial.1 All of Schmidt’s challenges involve
drainage issues on the rural properties that Schmidt and Buchholz own, which are
located on either side of a road. Schmidt’s challenges also concern two contracts
between the parties, which we refer to as “the Farm Lease Agreement” and “the
Drain Tile Agreement.”

¶2 The parties filed claims and counterclaims sounding in nuisance,
trespass, easement, and contract law, relating primarily to a drainage tile located
on Schmidt’s property. The drainage tile (also referred to as a “drain tile”) was a
subsurface 12-inch diameter concrete pipe that was buried on Schmidt’s property
at all times relevant to this appeal. It ran from the end of a culvert that passed
underneath the road between the parties’ properties, where it drained water from
Buchholz’s property, continued through Schmidt’s property, and discharged water
from both Schmidt’s property and Buchholz’s property into a drainage way.

¶3 Schmidt argues that the circuit court erred in issuing three orders:
one denying Schmidt’s motion for summary judgment on Buchholz’s claims that
Schmidt created a nuisance in connection with the drainage tile and granting
Buchholz’s motion for summary judgment on both Buchholz’s breach of contract
claim and Schmidt’s breach of contract counterclaim; one dismissing Schmidt’s

1
This action was commenced by Pauline Buchholz’s spouse, Ben Buchholz, who passed
away during the course of the circuit court proceedings. We generally refer to the original
plaintiff in the circuit court, Ben Buchholz, and to the respondent on appeal, Pauline Buchholz as
Trustee of the Trust Agreement, as Buchholz. The defendants to the action are Steven Schmidt
and his spouse, Linda Schmidt. Only Steven Schmidt appeals, and we generally refer to the
defendants collectively and the appellant individually as Schmidt.

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No. 2023AP1400

remaining counterclaims as a sanction; and one, incorporated in the judgment on
the verdict, relating to the jury’s finding that Buchholz holds a prescriptive
easement over the drainage tile.

¶4 Regarding the summary judgment order, Schmidt argues that WIS.
STAT. § 823.08 (2021-22) (the “Right to Farm Law”) bars Buchholz’s nuisance
claims, and that the circuit court erred in deciding that the statute does not apply
based on the court’s determination that Schmidt’s alleged nuisance-creating
farmland drainage activity was not an agricultural use or practice within the
meaning of the statute.2 Schmidt also argues that the court erred when it granted
summary judgment in Buchholz’s favor on Buchholz’s claim that Schmidt
breached the Drain Tile Agreement. Specifically, Schmidt argues that he was
excused from performing under the Drain Tile Agreement because it is ambiguous
and there are issues of material fact as to a predicate for his performance, namely
Buchholz’s compliance with the Farm Lease Agreement. Schmidt argues that the
court disregarded those same issues of material fact when it granted summary
judgment in Buchholz’s favor dismissing Schmidt’s counterclaim that Buchholz
breached the Farm Lease Agreement.

¶5 We reach the same result as the circuit court on the issue of whether
the Right to Farm Law bars Buchholz’s nuisance claims—it does not—but for
different reasons. We conclude that Schmidt’s alleged nuisance-creating farmland
drainage activity was an agricultural practice within the meaning of the statute.
But we also conclude that Schmidt fails to argue that he presented evidence

2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP1400

showing that he met a separate predicate for protection from Buchholz’s nuisance
claims under the Right to Farm Law. Specifically, he fails to argue that he
presented evidence showing that the land on which he conducted the alleged
nuisance-creating farmland drainage activity—land that he now owns—was in
agricultural use (farming) without substantial interruption, before Buchholz began
the use of his property (farming) that Buchholz alleges was interfered with by that
activity. Therefore, the court properly denied Schmidt’s motion for summary
judgment seeking to dismiss those claims. Separately, we conclude that Schmidt
fails to support the proposition that the ambiguity he asserts in the Drain Tile
Agreement excuses him from performance of the unambiguous terms of that
agreement. Schmidt also fails to show that there are disputed material facts as to
whether Buchholz breached the Farm Lease Agreement. Therefore, the circuit
court properly granted summary judgment in Buchholz’s favor on Buchholz’s
claim that Schmidt breached the Drain Tile Agreement and dismissed Schmidt’s
counterclaim that Buchholz breached the Farm Lease Agreement.

¶6 Regarding the order of dismissal as a sanction, Schmidt argues that
the circuit court acted contrary to the law and the facts when it dismissed
Schmidt’s remaining counterclaims as a sanction for his failure to comply with an
order requiring him to pay Buchholz’s costs resulting from a trial continuance that
Schmidt requested. We conclude that the court properly exercised its discretion
when it dismissed these counterclaims as a sanction.

¶7 Regarding the order incorporated in the judgment on the verdict,
Schmidt argues that the order includes terms that exceed the scope of the jury’s
verdict finding that Buchholz holds a prescriptive easement over the drainage tile
on Schmidt’s property. We conclude that the order incorporated by the judgment
on the verdict contains two terms that exceed the scope of the jury’s verdict

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No. 2023AP1400

finding that Buchholz holds a prescriptive easement, and for which Buchholz
identifies no factual or legal basis.

¶8 Accordingly, we affirm in part, reverse in part, and remand to the
circuit court with directions to amend the easement order to remove the two terms
that exceed the scope of the jury’s verdict.

BACKGROUND

¶9 The following facts are undisputed. Buchholz and Schmidt own
properties in Dodge County that they and their predecessors in title have used for
farming.

¶10 In May 2017, the parties entered into a contract (the “Farm Lease
Agreement”) under which Buchholz agreed to rent “90+/- tillable acres” of the
Buchholz farm to Schmidt in exchange for three payments of $6,500 each. The
Farm Lease Agreement covered the remainder of 2017 and all of 2018.

¶11 In sworn statements both parties testified that they used a subsurface
drain tile buried on the Schmidt property to drain the farmland on their respective
properties. Around the beginning of 2019, this drain tile on the Schmidt property
was damaged. On January 25, 2019, Buchholz and Schmidt entered into a
contract to replace the damaged drain tile (the “Drain Tile Agreement”), which
makes references to the parties’ separate obligations under the Farm Lease
Agreement. The Drain Tile Agreement states the following:

I, Ben Buchholz, agree to deduct $2,000 from the
3rd payment of 2018 $6500 farm land rent to help cover
[the] cost of replacing tile that was damaged on Steve
Schmidt Property that drains my land. Steve Schmidt
agrees to replace the tile within one year, or owes me
$2,000.

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No. 2023AP1400

Ben agrees to pay [f]or 1 12” Line, $2,000 is down
payment.

¶12 Schmidt did not replace the damaged drain tile within one year, as
promised. Both parties’ farms subsequently experienced significant flooding and
the deposit of debris, for which each party blamed the other. Schmidt also did not
pay Buchholz the $2,000 that Schmidt withheld from the third rent payment.

¶13 Buchholz sued Schmidt in February 2020, making the following
claims: (1) Schmidt breached the Drain Tile Agreement by not replacing the drain
tile within one year and by retaining the $2,000 that had been deducted from the
third rent payment that Schmidt owed to Buchholz; (2) Buchholz is the “rightful
holder of a [prescriptive] easement to use and occupy the Drain Tile located on the
Schmidt Property”; (3) Schmidt engaged in conduct relating to the damaged drain
tile (Schmidt’s “farmland drainage activity”) that diverted water and debris onto
the Buchholz property so as to negligently and intentionally create and maintain a
private nuisance; and (4) Schmidt’s farmland drainage activity constitutes a
trespass.3

¶14 Schmidt answered and alleged the following counterclaims: (1) the
Drain Tile Agreement is void as a matter of public policy; (2) Buchholz breached
the Farm Lease Agreement by failing to “provide” “90+/- tillable acres”; and
(3) Buchholz engaged in conduct that diverted water and debris onto Schmidt’s
property, which constituted both a negligent and intentional private nuisance and a
trespass.

3
Buchholz filed an amended complaint in April 2020, which is the operative complaint
for purposes of this appeal. We note that the jury entered verdicts on Buchholz’s private nuisance
claims as well as on a public nuisance claim, and that the jury found against Buchholz on the
public nuisance claim.

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No. 2023AP1400

¶15 After the parties submitted their pleadings, the circuit court issued
the three orders pertinent to this appeal, which we summarize in chronological
order.

¶16 The first is the circuit court’s August 2021 order on the parties’
cross-motions for partial summary judgment. The court denied Schmidt’s motion
seeking dismissal of Buchholz’s nuisance claims as barred under the Right to
Farm Law. The court ruled that the Right to Farm Law does not bar Buchholz’s
nuisance claims because Schmidt’s farmland drainage was not an “agricultural
practice” as that term is defined in WIS. STAT. § 823.08(2)(a). The court granted
Buchholz’s motion for summary judgment on his breach of contract claim,
determining that Schmidt breached the unambiguous terms of the Drain Tile
Agreement as a matter of law. The court also determined that there are no genuine
disputes of material fact concerning Schmidt’s defenses based on Buchholz’s
alleged breach of the Farm Lease Agreement. In the absence of disputes of
material fact on that issue, the court also dismissed Schmidt’s counterclaim
alleging that Buchholz breached the Farm Lease Agreement.

¶17 The second order at issue was entered in February 2022. The circuit
court granted Buchholz’s motion to dismiss Schmidt’s remaining counterclaims as
a sanction for Schmidt’s failure to comply with a prior court order that gave
Schmidt thirty days to pay, or file a motion objecting to, the costs that Buchholz
incurred due to a trial continuance that Schmidt requested. This dismissal order
was followed by a July 2022 order denying, after a hearing, Schmidt’s motion for
relief from the dismissal order. At the hearing on Schmidt’s motion for relief, the
court explained that the sanction of dismissal was warranted because Schmidt did
not inform the court of his reasons for not being able to timely pay the costs or file
a motion; Schmidt did not request an extension of the thirty-day deadline based on

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No. 2023AP1400

those reasons; Schmidt did not otherwise contact the court, either before the
payment or motion were due or in response to Buchholz’s motion to dismiss that
was filed shortly after the due date; and it would be unfair to Buchholz to allow
Schmidt to repeatedly engage in tardy conduct in the litigation and cause delay
without penalty.

¶18 The third order at issue is the circuit court’s December 2022
judgment, which incorporates an order on the verdict on Buchholz’s prescriptive
easement claim. The judgment was entered after the jury found in favor of
Buchholz on the prescriptive easement, private nuisance, and trespass claims, and
awarded Buchholz damages on the latter two claims. As to the jury’s prescriptive
easement verdict, the court entered a judgment that incorporates a “Drainage
Easement Order.” The order creates an easement “over, under and across that part
of the Schmidt Parcel within which the Drainage System will be located, and to
provide for the operation and maintenance of the Drainage System.” The
easement is over the pre-existing damaged drain tile on Schmidt’s property. The
order imposes obligations on both parties regarding the easement.

¶19 Schmidt appeals.4

4
The parties’ briefs do not comply with RULE 809.19(8)(bm), which addresses the
pagination of appellate briefs. See RULE 809.19(8)(bm) (providing that, when paginating briefs,
parties should use “Arabic numerals with sequential numbering starting at ‘1’ on the cover”).
This rule has recently been amended, see S. CT. ORDER 20-07 (eff. July 1, 2021), and the reason
for the amendment is that briefs are now electronically filed in PDF format, and are electronically
stamped with page numbers when they are accepted for e-filing. As our supreme court explained
when it amended the rule, the new pagination requirements ensure that the numbers on each page
of a brief “will match … the page header applied by the eFiling system, avoiding the confusion of
having two different page numbers” on every page of a brief. S. CT. ORDER 20-07 cmt. at x1.

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DISCUSSION

I. Summary judgment rulings

¶20 Schmidt argues that the circuit court erred in denying Schmidt’s
motion for partial summary judgment seeking dismissal of Buchholz’s nuisance
claims. He further argues that the court erred in granting Buchholz’s motion for
partial summary judgment in Buchholz’s favor on both Buchholz’s breach of
contract claim and Schmidt’s breach of contract counterclaim.

¶21 We review summary judgment de novo, using the same
methodology as the circuit court. R.W. Docks & Slips v. State, 2001 WI 73, ¶12,
244 Wis. 2d 497, 628 N.W.2d 781. Summary judgment is proper if “the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue of material fact” and
a party is entitled to judgment as a matter of law. Id.; WIS. STAT. § 802.08(2)
(summary judgment to the moving party) and (6) (summary judgment to the non-
moving party). “[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.”
Baxter v. DNR, 165 Wis. 2d 298, 312, 477 N.W.2d 648 (Ct. App. 1991)
(emphasis and quoted source omitted).

¶22 Our review of the circuit court’s summary judgment rulings involves
statutory interpretation presents an issue of law that we also review de novo.
Clean Wis., Inc. v. DNR, 2021 WI 72, ¶10, 398 Wis. 2d 433, 961 N.W.2d 611.
We conduct a plain meaning analysis that begins with the statutory language. See
State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d
633, 681 N.W.2d 110 (“Judicial deference to the policy choices enacted into law

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by the legislature requires that statutory interpretation focus primarily on the
language of the statute. We assume that the legislature’s intent is expressed in the
statutory language.”). The words used by the legislature are to be given their
“common, ordinary, and accepted meaning,” id., ¶45, “that proper grammar and
usage would assign them.” State v. Arberry, 2018 WI 7, ¶19, 379 Wis. 2d 254,
905 N.W.2d 832 (citation omitted). In addition, statutory language must be
interpreted “in the context in which it is used; not in isolation but as part of a
whole; in relation to the language of surrounding or closely-related statutes; and
reasonably, to avoid absurd or unreasonable results.” Kalal, 271 Wis. 2d 633, ¶46.
“‘If this process of analysis yields a plain, clear statutory meaning, then there is no
ambiguity, and the statute is applied according to this ascertainment of its
meaning.’” Id. (quoting Bruno v. Milwaukee County, 2003 WI 28, ¶20, 260
Wis. 2d 633, 660 N.W.2d 656).

¶23 Our review of the circuit court’s summary judgment rulings also
involves the interpretation of contracts, which are also rulings that we review de
novo. Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 460, 405 N.W.2d 354 (Ct.
App. 1987). “The general rule as to construction of contracts is that the meaning
of particular provisions in the contract is to be ascertained with reference to the
contract as a whole.” MS Real Est. Holdings, LLC v. Donald P. Fox Fam. Tr.,
2015 WI 49, ¶38, 362 Wis. 2d 258, 864 N.W.2d 83. We interpret the language of
a contract “according to its plain or ordinary meaning, … consistent with ‘what a
reasonable person would understand the words to mean under the circumstances.’”
Id., ¶37 (citation omitted). In other words, “[w]e interpret contracts to give them
common sense and realistic meaning.” Id., ¶38 (citation omitted). When a
statutory term is not defined in the statute, “[a] dictionary may be utilized to guide

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the common, ordinary meaning of words.” Noffke ex rel. Swenson v. Bakke,
2009 WI 10, ¶10, 315 Wis. 2d 350, 760 N.W.2d 156.

¶24 If a contract provision is unambiguous, meaning that it is susceptible
of just one reasonable interpretation, we will construe it consistently with that
unambiguous meaning. See Town Bank v. City Real Est. Dev., LLC, 2010 WI
134, ¶33, 330 Wis. 2d 340, 793 N.W.2d 476. If a contract provision is ambiguous,
we will construe the provision against the drafting party if there is a clear drafting
party. See Maryland Arms Ltd. P’ship v. Connell, 2010 WI 64, ¶23, 326 Wis. 2d
300, 786 N.W.2d 15. Whether a contract is ambiguous presents an issue of law.
Borchardt v. Wilk, 156 Wis. 2d 420, 427, 456 N.W.2d 653 (Ct. App. 1990).

A. Whether the Right to Farm Law bars Buchholz’s nuisance claims

¶25 Schmidt argues that he is entitled to summary judgment dismissing
Buchholz’s nuisance claims because Schmidt’s farmland drainage activity may not
be found to be a nuisance under the Right to Farm Law. WIS. STAT. § 823.08.
The legislative purpose of the statute is, in part, as follows:

The legislature finds that development in rural areas
and changes in agricultural technology, practices and scale
of operation have increasingly tended to create conflicts
between agricultural and other uses of land. The legislature
believes that, to the extent possible consistent with good
public policy, the law should not hamper agricultural
production or the use of modern agricultural technology.
The legislature therefore deems it in the best interest of the
state to establish limits on the remedies available in those
conflicts which reach the judicial system.

Sec. 823.08(1).

¶26 The Right to Farm Law defines two categories of agricultural
activities that both qualify for protection from nuisance claims: agricultural uses
and agricultural practices. WIS. STAT. § 823.08(3). The potentially protected

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activity of “agricultural use” is defined as any of a list of “activities conducted for
the purpose of producing an income or livelihood,” including, pertinent here,
“crop or forage production.” WIS. STAT. §§ 823.08(2)(b) and 91.01(2)(a)1. And
the potentially protected activity of “agricultural practice” is “any activity
associated with an agricultural use.” Sec. 823.08(2)(a).

¶27 The Right to Farm Law requires the dismissal of a claim that
purports to identify an agricultural use or an agricultural practice as a nuisance if
both of the following two criteria are satisfied:

1. The agricultural use or agricultural practice
alleged to be a nuisance is conducted on … land that was in
agricultural use without substantial interruption before the
plaintiff began the use of property that the plaintiff alleges
was interfered with by the agricultural use or agricultural
practice.

2. The agricultural use or agricultural practice does
not present a substantial threat to public health or safety.

WIS. STAT. § 823.08(3)(a).

¶28 Thus, a defendant seeking to show that the defendant may not be
found liable for creating a nuisance must prove each of three predicates under the
Right to Farm Law. First, the plaintiff’s claim is for a nuisance that is an
agricultural use or practice. Second, under subpart (3)(a)1., as pertinent here, the
land on which the alleged nuisance occurred was in agricultural use, without
substantial interruption, before the plaintiff began the particular use of the property
that the plaintiff claims was interfered with by the defendant’s agricultural use or
practice. Third, under subpart (3)(a)2., the defendant’s agricultural use or
agricultural practice alleged to be a nuisance does not present a substantial threat
to public health or safety. WIS. STAT. § 823.08(2) and (3).

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¶29 As we explain in greater detail below, we conclude that it is
undisputed that Schmidt has met the first predicate—that the alleged nuisance at
issue, his farmland drainage activity on his land, was an agricultural practice—
because it was associated with the agricultural use of crop production. We further
conclude that the case relied on by the circuit court to rule to the contrary, Timm v.
Portage County Drainage District, 145 Wis. 2d 743, 429 N.W.2d 512 (Ct. App.
1988), does not compel such a ruling. However, we also conclude that Schmidt
fails to show that he developed the evidence relevant to meet the second
predicate—that what is now his land was in agricultural use, without substantial
interruption, before Buchholz began using his property for the farming that
Buchholz alleges was interfered with by Schmidt’s activity. Therefore, we need
not and do not address the third predicate.5 Accordingly, we conclude that
Schmidt fails to show that the Right to Farm Law bars Buchholz’s nuisance claims
based on Schmidt’s farmland drainage activity.

¶30 We briefly recap the pertinent background before proceeding with
our analysis of whether Schmidt has met the first and second predicates under the
Right to Farm Law, to support his defense that he may not be found liable for
creating a nuisance.

5
Since Schmidt was required to show all of the predicates necessary to establish a
defense under the Right to Farm Law, we could limit our discussion to our conclusion that he
fails to meet the specific timing requirement in WIS. STAT. § 823.08(3)(a)1. But we choose to
address additional issues briefed by the parties in the interest of clarifying the law in this area, in
part because of the prevalence of farmland drainage activities around the state and in part because
of the increasing intensity of some precipitation events. See Hull v. State Farm Mut. Auto. Ins.
Co., 222 Wis. 2d 627, 640 n.7, 586 N.W.2d 683 (1998) (explaining that, when one issue is
dispositive, an appellate court may consider additional issues that have been briefed by the parties
and are likely to recur, to conserve judicial resources and clarify important points of law).

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No. 2023AP1400

¶31 Buchholz’s nuisance claims are based on Schmidt’s alleged
farmland drainage activity regarding the subsurface drain tile that was at relevant
times located on Schmidt’s land and that Buchholz used to drain his property.
Specifically, Buchholz alleged that, in late fall 2018 or early 2019, Schmidt
“disconnected” the drain tile on Schmidt’s land, that Schmidt constructed a berm
and installed a separate pipe on Schmidt’s land that drained to a waterway on
Schmidt’s land, and that both sets of actions caused water and debris to be
diverted onto Buchholz’s property so as to interfere with Buchholz’s use of his
property for farming.

¶32 Schmidt moved for summary judgment seeking the dismissal of
Buchholz’s nuisance claims under the Right to Farm Law. Schmidt argued that
his alleged nuisance-creating farmland drainage activity was either an agricultural
use or an agricultural practice that did not present a substantial threat to public
health or safety, and was, therefore, protected from nuisance liability under the
Right to Farm Law.

¶33 The materials submitted by the parties in support of and in
opposition to Schmidt’s motion for summary judgment include Schmidt’s affidavit
and deposition, in which he swore to the following. Buchholz took certain actions
on Buchholz’s property that increased the flow of water discharged onto
Schmidt’s land. Schmidt installed a nine-inch drainage pipe and a berm at a
different location from the drain tile to “regulat[e] the increased flow of water
from the Buchholz Property onto the Schmidt Property in order to mitigate
damage to [the Schmidt] farmland and to protect [Schmidt’s] ability to
successfully cultivate crops on [the Schmidt] property.” The nine-inch drainage
pipe is not connected to the drain tile on Schmidt’s land that drains Buchholz’s

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property. The drain tile was plugged up with debris at one end, and Schmidt
“essentially disconnected” it in July 2019.

¶34 The circuit court denied Schmidt’s motion. The court concluded that
the Right to Farm Law could not apply here because Schmidt’s farmland drainage
could not qualify as an agricultural use under WIS. STAT. § 823.08(3)(a), and was
not an agricultural practice pursuant to Timm, 145 Wis. 2d 743.6

1. Whether Schmidt has met the first predicate, that his alleged nuisance-creating
farmland drainage activity was an “agricultural practice”

¶35 As stated, one predicate for protection under the Right to Farm Law
involves the concept of agricultural practices, which the statute defines as “any
activity associated with an agricultural use.” WIS. STAT. § 823.08(2)(a). And, its
definition of agricultural use includes “crop or forage production.” WIS. STAT.
§§ 823.08(2)(b) and 91.01(2)(a)1. The statute does not include a definition of the
common term “associated.” Accordingly, we turn to one representative dictionary
definition of “associated”: “related, connected, or combined together.” See, e.g.,
Associated, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/
associated (last visited July 2, 2024). Buchholz does not dispute that Schmidt’s
alleged nuisance-creating farmland drainage activity was conducted to assist in
crop production on Schmidt’s farmland. Thus, Schmidt’s farmland drainage
activity was indisputably related to or connected with crop production and,
therefore, it was “associated” with crop production. Applying a plain language

6
The circuit court concluded that farmland drainage is not an agricultural use under the
Right to Farm Law because it is not included in the statutory list of protected agricultural uses.
See WIS. STAT. §§ 823.08(2)(b) and 91.01(2) (defining “agricultural use”). On appeal, Schmidt
does not contest the court’s conclusion that farmland drainage is not a protected agricultural use
under the Right to Farm Law.

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approach to the statutory definition of an agricultural practice as an activity
“associated” with crop production, we conclude that Schmidt’s alleged farmland
drainage activity met that definition.

¶36 Buchholz does not engage in a plain language interpretation of the
statute. Instead, he relies solely on this court’s ruling in Timm. In that opinion,
we stated that the operation of drainage ditches by the Portage County Drainage
District was not an agricultural practice under the Right to Farm Law. See Timm,
145 Wis. 2d at 755. Timm does not support Buchholz’s position, because Timm
explicitly limited the scope of its discussion on this issue to nuisance suits “against
drainage commissions,” as opposed to those “involved in agricultural production,”
and did so in the context of a motion for costs. Id. Given those limitations,
Buchholz’s reliance on Timm fails. We now explain in more detail.

¶37 In Timm, the plaintiff sued the Portage County Drainage District,
alleging that it created a nuisance when it removed “stop logs” from dams it
operated, allegedly lowering the water level of drainage ditches behind the dams
and adjacent to the Timm farm, allegedly causing “soil erosion, destruction of
trees and vegetation, and decreased property and crop values.” Id. at 746-747.
The District removed the stop logs from the dams in response to complaints from
other farmers that too much water was backing up behind one of the dams,
resulting in wet field conditions to the detriment of crop production. Id. The
circuit court dismissed Timm’s suit. Id. at 746. On appeal, this court concluded
that the District was immune from suit under a statute that provides immunity to
certain governmental actors. Id. at 751.

¶38 Turning to the aspect of Timm most pertinent to this appeal, the
District cross-appealed, arguing that it was entitled to costs and fees under WIS.

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No. 2023AP1400

STAT. §§ 814.04(9) and 823.08(4) (the Right to Farm Law) (1987-88).7 Timm,
145 Wis. 2d at 746. The District noted that its operation of the dams and drainage
ditches, “which formed the basis for Timm’s nuisance complaint, [was] associated
with the agricultural use to which all the land in the drainage district is put.” Id. at
754. This court rejected the District’s argument. The court explained that statutes
allowing costs are to be “strictly construed,” id. at 754 (citing Guthrie v. WERC,
107 Wis. 2d 306, 317, 320 N.W.2d 213 (Ct. App. 1982), aff’d, 111 Wis. 2d 447,
331 N.W.2d 331 (1983)), and further explained that statutes are also to be
construed “in light of [their] purpose,” Timm, 145 Wis. 2d at 754-755 (citing State
v. Mauthe, 123 Wis. 2d 288, 299, 366 N.W.2d 871(1984)). The court then quoted
the purpose of the Right to Farm Law as set forth in WIS. STAT. § 823.08(1)
(1987-88) and stated that its purpose “is to provide some protection from nuisance
suits to those involved in agricultural production.” Timm, 145 Wis. 2d at 755.
The court reasoned that “[t]o extend the statute’s protection to cover nuisance suits
brought against drainage commissions would require us to liberally construe this
costs statute,” contrary to Guthrie, 107 Wis. 2d at 317. Timm, 145 Wis. 2d at

7
We note that there have been certain legislative amendments to the fee-shifting aspects
of the statutes since this court decided Timm v. Portage County Drainage District, 145 Wis. 2d
743, 429 N.W.2d 512 (Ct. App. 1988), which we now briefly summarize, but none of the changes
are directly relevant to our analysis and discussion.

WIS. STAT. § 814.04(9) (1987-1988) provided that in actions in which an agricultural use
or practice is alleged to be a nuisance, a successful defendant shall be allowed costs as provided
in WIS. STAT. § 823.08(4) (1987-88), which allowed such a defendant to recover reasonable costs
and attorney fees. Since this court decided Timm, 145 Wis. 2d 743, the legislature repealed
§ 814.04(9). 1995 Wis. Act 149, § 1. The current version of § 823.08(4) provides in part,
“Notwithstanding [WIS. STAT. §] 814.04(1) and (2), the court shall award litigation expenses to
the defendant in any action in which an agricultural use or agricultural practice is alleged to be a
nuisance if the agricultural use or agricultural practice is not found to be a nuisance.” Sec.
823.08(4)(b). See Zink v. Khwaja, 2000 WI App 58, ¶16, 233 Wis. 2d 691, 608 N.W.2d 394
(stating that WIS. STAT. § 823.08(4)(b) “unequivocally mandates the recovery of reasonable
attorneys’ fees”).

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No. 2023AP1400

755. In light of the stated purpose of the statute, which is to protect agricultural
production, and the obligation to strictly construe cost-sharing statutes, the court
determined that it would be inappropriate to conclude that “the operation of
drainage districts by the defendants” was protected under the Right to Farm Law.
On this basis, the court concluded that WIS. STAT. §§ 814.04(9) and 823.08(4)
(1987-88) did “not allow the award of costs and attorney fees.” Timm, 145
Wis. 2d at 755 (emphasis added).

¶39 Significantly, this court did not rule that the activity of draining
farmland in and of itself could not be an agricultural practice that could be subject
to protection under the Right to Farm Law, assuming that all other requirements of
the statute are met. Instead, it ruled only that drainage activity by drainage
districts was not protected in the context of the cost issue in that case. Id. In
addition, the logic of the ruling in Timm was explicitly limited to a suit against a
drainage district that was at no relevant time actively engaged in the practice of
agriculture for the purpose of earning an income or making a livelihood. Instead,
the district provided a service to all persons owning or using land—including but
not limited to those engaged in agricultural uses and practices for an income or a
livelihood—by constructing, operating, and maintaining a drainage system to
serve all. Id. (framing the issue as whether the protection in the Right to Farm
Law applies to “nuisance suits brought against drainage commissions”); see also
WIS. STAT. § 88.21 (delineating the powers of a drainage board).

¶40 To interpret Timm as ruling that all farmland drainage activity is
excluded from the definition of an agricultural practice under the Right to Farm
Law would contravene the language in the statute referenced in that definition,
WIS. STAT. § 91.01(2)(a) (“conducted for the purpose of producing an income or
livelihood”). That is, this interpretation would conflict with the Right to Farm

18
No. 2023AP1400

Law’s definition of an agricultural practice as “any activity associated with an
agricultural use,” WIS. STAT. § 823.08(2)(a), and with its definition of an
agricultural use as any of the activities listed in § 91.01(2) when done “for the
purpose of producing an income or livelihood.” Secs. 823.08(2)(b)
and 91.01(2)(a)1. A more limited interpretation of Timm, which would be
consistent with the Right to Farm Law’s reference to § 91.01(2), is that drainage
activity by a drainage district that does not produce an income or livelihood from
agricultural activities, is not an agricultural practice that could be subject to
protection under the Right to Farm Law. Sec. 823.08(2)(b).

¶41 Buchholz accurately points out that the Right to Farm Law is framed
in terms of a defendant’s uses and activities associated with land, rather than in
terms of the identity of the defendant who is engaging in those acts. However, this
distinction misses the point that we just made. The Right to Farm Law requires
that, to be protected from nuisance liability, the agricultural uses or practices must
include the particular purpose of producing an income or livelihood. As we have
explained, the Timm court’s limited ruling denying the statute’s protection to
drainage by drainage districts is consistent with the language in the statute
protecting only those agricultural uses and practices conducted by persons who at
relevant times derived their income or livelihood from their work in agriculture.

¶42 In sum, we conclude that Schmidt’s alleged nuisance-creating
farmland drainage activity was an agricultural practice as that term is used in the
Right to Farm Law.

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No. 2023AP1400

2. Whether Schmidt has met the second predicate, that the land he now owns was
in agricultural use without substantial interruption before Buchholz began using
his property for the farming that Schmidt’s activity allegedly interfered with

¶43 To repeat, the second predicate requires that, to be protected from a
nuisance claim, the alleged nuisance-creating activity must have been conducted
on (as pertinent here) land that was in consistent agricultural use before the
plaintiff began the use of the property that was allegedly interfered with by that
activity:

1. The agricultural use or agricultural practice
alleged to be a nuisance is conducted on … land that was in
agricultural use without substantial interruption before the
plaintiff began the use of property that the plaintiff alleges
was interfered with by the agricultural use or agricultural
practice.

WIS. STAT. § 823.08(3)(a)1.

¶44 This provision addresses the timing between the use of the land on
which the alleged nuisance-creating activity is conducted and the use by the
plaintiff of the property interfered with by that activity. This provision requires
that, for the Right to Farm Law to apply to such an activity, the agricultural use of
the land on which the activity is conducted must precede the plaintiff’s use of the
allegedly affected property. That is, when considering the nuisance-creating
activity, the focus is on the use of the land irrespective of who used the land at any
given time; by contrast, when considering the interfered-with use, the focus is on
“the plaintiff’s” use of that property. The timing comparison is not between the
defendant’s use and the plaintiff’s use, but between the land’s use and the
plaintiff’s use.

¶45 Here, the alleged nuisance-creating activity was conducted on
Schmidt’s land, and allegedly interfered with Buchholz’s farming of his property.

20
No. 2023AP1400

Thus, the issue under WIS. STAT. § 823.08(3)(a)1. is whether the land now owned
by Schmidt was in agricultural use, by anyone, before Buchholz himself began
farming his property. However, Schmidt does not argue that he presented
evidence in the circuit court showing that his land was in agricultural use before
Buchholz began farming his property. And, on our de novo review, as far as we
can determine from the record, the parties failed to develop relevant evidence
regarding this issue. Accordingly, Schmidt has failed to show that he met the
second predicate for protection from Buchholz’s nuisance claims under the Right
to Farm Law.

¶46 In sum, Schmidt fails to show that the Right to Farm Law bars
Buchholz’s nuisance claims, and the circuit court properly denied Schmidt’s
motion for summary judgment seeking to dismiss those claims.

B. Whether Buchholz is entitled to summary judgment on his claim that
Schmidt breached the Drain Tile Agreement and on Schmidt’s counterclaim
that Buchholz breached the Farm Lease Agreement

¶47 Schmidt argues that Buchholz is not entitled to summary judgment
on his claim that Schmidt breached the Drain Tile Agreement for two reasons.
First, he argues that the Drain Tile Agreement is ambiguous. Second, he argues
that there are disputes of material fact as to whether Buchholz performed his
obligations under the Farm Lease Agreement, insofar as it is referenced in the
Drain Tile Agreement, so as to excuse Schmidt from having to perform on the
Drain Tile Agreement. Schmidt also argues that, based on those same disputes of
material fact, Buchholz was not entitled to summary judgment dismissing
Schmidt’s counterclaim that Buchholz breached the Farm Lease Agreement. As
we explain, we reject Schmidt’s arguments and, accordingly, conclude that the
circuit court properly granted summary judgment in Buchholz’s favor on his

21
No. 2023AP1400

breach of contract claim and properly dismissed Schmidt’s breach of contract
counterclaim.

¶48 As quoted above, the Farm Lease Agreement, executed in
May 2017, states in pertinent part, “I, Ben Buchholz (landowner) certify that I will
rent 90 +/- tillable acres of my farm … to Steven Schmidt (operator) for cash for
the crop year.” Below the parties’ signatures, the following is handwritten at the
bottom of the Farm Lease Agreement:

$19,500.00 ÷ 3 Payments: May 20th $6,500

July 18th $6,500

Dec. 18th $6,500

¶49 Also as quoted above, the Drain Tile Agreement, executed in
January 2019, states:

I, Ben Buchholz, agree to deduct $2,000 from the
3rd payment of 2018 $6500 farm land rent to help cover
[the] cost of replacing tile that was damaged on Steve
Schmidt Property that drains my land. Steve Schmidt
agrees to replace the tile within one year, or owes me
$2,000.

Ben agrees to pay [f]or 1 12” Line, $2,000 is down
payment.

¶50 Schmidt does not dispute that the first paragraph in the Drain Tile
Agreement unambiguously requires that, within one year, Schmidt either replace
the damaged drain tile that drained Buchholz’s property and was located on
Schmidt’s property, or else pay Buchholz the $2,000 that Buchholz agreed to
allow Schmidt to withhold from the third $6,500 rent payment that Schmidt owed
Buchholz for 2018. Nor does Schmidt dispute that he did not in fact within one
year either replace the drain tile or pay the withheld $2,000 to Buchholz.

22
No. 2023AP1400

¶51 Rather, Schmidt argues that the second paragraph, comprising the
one sentence quoted above, is ambiguous, and that the ambiguity in the second
paragraph somehow excused him from performing his unambiguous obligations in
the first paragraph. More specifically, Schmidt argues that it is ambiguous as to
whether the $2,000 “down payment” described in the second paragraph is different
from the $2,000 to be deducted from the rent payment under the first paragraph, or
is for a tile different from the tile referred to in the first paragraph. Schmidt argues
that this one sentence could be read to impose obligations on Buchholz that
Buchholz did not perform, such as to pay costs above the $2,000 “down payment”
or to construct a separate tile. Therefore, Schmidt’s argument continues, Schmidt
would be excused from refunding the $2,000 that he withheld from the rent that he
owed Buchholz to replace the damaged drain tile that Schmidt did not replace.

¶52 However, Schmidt does not offer a reasonable, non-speculative
interpretation of the Drain Tile Agreement contrary to what we conclude is the
unambiguous language in its first paragraph. See Maryland Arms, 326 Wis. 2d
300, ¶¶44-47 (accepting tenant’s reasonable interpretation, against the landlord
drafter, of two sentences in an ambiguous paragraph in a lease). Moreover,
Schmidt fails to explain, with citations to supporting legal authority, why he would
be entitled to keep the benefit of his failure to perform under that unambiguous
language.8 We agree with the circuit court that Schmidt is unambiguously

8
Schmidt cites Ranes v. American Family Mutual Insurance Company, 219 Wis. 2d
49, 57, 580 N.W.2d 197 (1998), in which our supreme court ruled that an insured’s failure to give
notice does not relieve an insurer of its obligations unless the breach is material, meaning that the
insurer “was prejudiced by the lack of notice.” Schmidt does not explain how this ruling, which
addresses the consequences of a material breach of a contract by one party that prejudices the
other party, applies to his argument about ambiguity. Nor does he identify a material breach of
the Drain Tile Agreement by Buchholz that prejudiced him.

23
No. 2023AP1400

obligated under the first paragraph to, within one year, replace the damaged tile on
his property that drains Buchholz’s property or pay the withheld $2,000; and that
he fails to point to any language in the second paragraph entitling him to retain the
$2,000 when he did neither.

¶53 Separately, Schmidt argues that he could not have breached the
Drain Tile Agreement by retaining the withheld $2,000 if he did not owe any rent
to Buchholz. He further argues that he would not owe rent to Buchholz if
Buchholz breached the Farm Lease Agreement, and that there are disputes of
material fact as to whether Buchholz breached the Farm Lease Agreement.
Schmidt provides no legal basis for his argument tying his failure to perform under
the Drain Tile Agreement to Buchholz’s alleged failure to perform under the Farm
Lease Agreement. However, because Schmidt also argues that the same asserted
disputes of material fact undermine Buchholz’s entitlement to summary judgment
dismissing Schmidt’s counterclaim that Buchholz breached the Farm Lease
Agreement, we now explain why he fails to present any such disputes of material
fact.

¶54 Schmidt argues that there are disputes of material fact as to whether
Buchholz leased to him “90+/- acres of tillable land” (the “leased land”), as
required by the Farm Lease Agreement. The parties both interpret these
agreement terms as requiring that Buchholz provide at least 90 acres of “tillable
land” in 2017 and 2018, and we accept their interpretation for purposes of this
appeal. Schmidt defines “tillable” as “able to be planted,” and argues that
Buchholz breached the Farm Lease Agreement because Schmidt was not “able to”
plant on all of the 90 acres in 2017 and 2018, since some areas of the leased land
were “too wet to plant.” Buchholz defines “tillable” as “available” to be planted,
and argues that government reports that Schmidt filed and his own deposition

24
No. 2023AP1400

testimony establish that the leased land comprised at least 90 acres “available” for
planting. We need not resolve the distinction, if any, between these two
definitions, because the record establishes that Schmidt reported, in the
government reports that he certified as true and accurate, and which he testified in
his deposition were “correct,” that he “planted” at least 90 acres of cropland on the
leased land in 2017 and 2018. Schmidt fails to point to evidence on which a jury
could rely to show that he planted fewer than 90 acres on the leased land,
sufficient to create a genuine issue of material fact.

¶55 In the summary judgment proceedings, Buchholz produced copies of
annual Reports of Commodities Farm and Tract Detail Listing that Schmidt filed
with the Dodge County Farm Services Agency.9 At his deposition in
December 2020, Schmidt testified that he signed each report, certifying “to the
best of [his] knowledge” that the information on the report is “true and correct,”
and that “the applicable crop, type, practice and intended use is not planted if it is
not included on the Report.” (Emphasis added.) Schmidt acknowledged in his
testimony that, for each of the years from 2009 to 2016, the reports show that he
planted at least 90 acres on the leased land.

¶56 For each of the years 2017 and 2018, Schmidt testified that the
reports show 97.84 acres of “cropland” for the leased land. Schmidt testified that
he did not report any acres that he “was unable to plant” in 2017, and that the 2018
report states that he planted corn and alfalfa on 90.81 acres of the leased land in
2018. Schmidt also testified that he planted fewer than 90 acres on the leased land

9
It is undisputed that Schmidt received government subsidies based on the information
in these reports.

25
No. 2023AP1400

in both 2017 and 2018, but he also testified that the reports and maps that he
signed and submitted showing that he planted more than 90 acres on the leased
land in 2017 and 2018 were “correct.” He did not explain in his testimony why he
did not report that he planted fewer than 90 acres of cropland on the leased land in
2017 and 2018.

¶57 On appeal, Schmidt does not provide any reason for a jury to credit
his testimony that, contrary to his certified reports that he testified were “correct,”
he planted fewer than 90 acres. In other words, he does not provide a basis for this
court to conclude that any aspect of his deposition testimony created a genuine
dispute of material fact as to whether he planted fewer than 90 acres on the leased
land in 2017 and 2018.

¶58 In March 2021, approximately three months after his deposition,
Schmidt submitted an affidavit in which he averred that, with certain
“deductions,” he was “able to successfully plant” fewer than 90 acres in 2017 and
2018. He did not explain in the affidavit why the deductions were not identified in
the reports.

¶59 The circuit court rejected this affidavit as a sham affidavit. See
Yahnke v. Carson, 2000 WI 74, ¶21, 236 Wis. 2d 257, 613 N.W.2d 102 (“[F]or
purposes of evaluating motions for summary judgment …, an affidavit that
directly contradicts prior deposition testimony is generally insufficient to create a
genuine issue of fact for trial, unless the contradiction is adequately explained.”).
Schmidt does not in his appellate briefing address the court’s rejection of his
affidavit based on the sham affidavit rule, or refer to the averments in that
affidavit. Accordingly, we take him to concede that the court properly disregarded
the affidavit.

26
No. 2023AP1400

¶60 In sum, we conclude that the circuit court properly granted summary
judgment in Buchholz’s favor on Buchholz’s claim that Schmidt breached the
Drain Tile Agreement and dismissed Schmidt’s counterclaim that Buchholz
breached the Farm Lease Agreement.10

II. Dismissal of Schmidt’s Counterclaims

¶61 WISCONSIN STAT. § 802.10(7) provides that “[v]iolations of a
scheduling or pretrial order are subject to [WIS. STAT. §§] 802.05, 804.12 and
805.03.” WISCONSIN STAT. § 805.03 provides in part: “[F]or failure of any party
to ... obey any order of court, the court in which the action is pending may make
such orders in regard to the failure as are just, including but not limited to orders
authorized under [§] 804.12(2)(a).” Section 804.12(2)(a)3. authorizes the court to
“make such orders … as are just,” including “dismissing the action or … rendering
a judgment by default against the disobedient party.”

¶62 Under WIS. STAT. § 805.03, circuit courts have “the authority to
dismiss actions or grant default judgment when a party has interfered with … the
orderly administration of justice.” East Winds Properties, LLC v. Jahnke, 2009
WI App 125, ¶13, 320 Wis. 2d 797, 722 N.W.2d 738 (quoting Trispel v. Haefer,

10
Schmidt also asserts that the circuit court erred when it granted Buchholz’s motion for
summary judgment dismissing Schmidt’s counterclaim that the Drain Tile Agreement was illegal
and void as against public policy. Specifically, he asserts that the Drain Tile Agreement may
have resulted in negative effects on state and federally regulated water and wetland resources on
Schmidt’s property and “federal farm subsidies” received by Schmidt. However, despite these
assertions, Schmidt neither identifies this as an issue on appeal nor does he support the assertions
with relevant legal authority. Accordingly, we do not address this issue further. See Industrial
Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769
N.W.2d 82 (“Arguments unsupported by legal authority will not be considered, and we will not
abandon our neutrality to develop arguments.” (citation omitted)); State v. Pettit, 171 Wis. 2d
627, 646, 492 N.W.2d 633 (Ct. App. 1992) (this court generally will not consider arguments that
are not supported by legal authority or insufficiently developed).

27
No. 2023AP1400

89 Wis. 2d 725, 731, 279 N.W.2d 242 (1979)) (internal quotations omitted). Only
a finding of egregious conduct justifies such a sanction. Id. A party’s failure to
comply with a court order is egregious when there is no “‘clear and justifiable
excuse.’” Industrial Roofing Servs., Inc., v. Marquardt, 2007 WI 19, ¶43, 299
Wis. 2d 81, 726 N.W.2d 898 (citation omitted) (lead op.).

¶63 A dismissal under WIS. STAT. § 805.03 “operates as an adjudication
on the merits unless the court in its order for dismissal otherwise specifies for
good cause shown recited in the order. A dismissal on the merits may be set aside
by the court on the grounds specified in and in accordance with [WIS. STAT.
§] 806.07.” Sec. 805.03.

¶64 We review a circuit court’s decision to impose the sanction of
dismissal, and a court’s decision on a motion for relief from judgment or order, for
an erroneous exercise of discretion. East Winds, 320 Wis. 2d 797, ¶13 (decision
to grant dismissal); Werner v. Hendree, 2011 WI 10, ¶59, 331 Wis. 2d 511, 795
N.W.2d 423 (decision on motion for relief). A court properly exercises its
discretion “if it examined the relevant facts, applied a proper standard of law, and
reached a reasonable conclusion.” Teubel v. Prime Dev., Inc., 2002 WI App 26,
¶15, 249 Wis. 2d 743, 641 N.W.2d 461. The circuit court’s findings of fact will
not be set aside unless those findings are “clearly erroneous.” WIS. STAT.
§ 805.17(2). We accept inferences drawn by the court from undisputed facts so
long as they are reasonable. Teubel, 249 Wis. 2d 743, ¶14.

Additional Background

¶65 In a letter dated December 15, 2021, submitted to the circuit court
five days before the trial was to commence, Schmidt, pro se, requested a
continuance of the trial on the ground that he had “remove[d]” his counsel for

28
No. 2023AP1400

being “incapable of handling this case.” After a telephone hearing on
December 16, the court issued an order acknowledging counsel’s withdrawal. At
a hearing on December 20, the court granted the continuance. The court noted that
Schmidt had told the court that Schmidt expected to retain new counsel soon after
the first of the year, and emphasized that it was important that Schmidt retain new
counsel promptly, so that new counsel could be ready for a trial that would be
rescheduled at a February telephone conference. The court also ordered Schmidt
to pay Buchholz’s costs related to the continuance, in the amount of $2,632.55.
The court instructed the then unrepresented Schmidt to have his new counsel
review Buchholz’s itemized bill for these costs, which Buchholz’s attorney said he
would file, and for new counsel to contact the court “right away” with any
objection. The court ordered Schmidt to “pay [the costs] or file a motion within
thirty days” (the “thirty-day order”).11 The court also set a scheduling conference
for February 15, 2022.

¶66 On January 24, 2022, Buchholz filed a notice and motion to dismiss
Schmidt’s counterclaims as a sanction for Schmidt’s failure to pay Buchholz or
file a motion within thirty days of the December 20, 2021 hearing.12 The record
does not reflect that Schmidt responded in any way to Buchholz’s motion to
dismiss. On February 10, 2022, the circuit court entered an order dismissing

11
Schmidt does not challenge the circuit court’s thirty-day order on appeal.

As far as we can discern from our review of the record, Buchholz did not file an itemized
bill or other document regarding his costs related to the continuance. The parties did not raise
this omission in the circuit court and they also do not raise it on appeal, and so we do not consider
it in our analysis.
12
We note that there is a slight discrepancy in the amount of fees identified in the
attorney affidavit and in the transcript, but Schmidt does not raise any issue as to that
discrepancy.

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No. 2023AP1400

Schmidt’s counterclaims with prejudice (which for ease of reading we sometimes
refer to as “the sanctions order of dismissal”).

¶67 Schmidt did not appear at the February 15, 2022 scheduling
conference. On that same day, Buchholz filed a notice and motion asking the
circuit court to find Schmidt in contempt of court and impose additional sanctions,
this time based on Schmidt’s failure to appear at the scheduling conference. The
notice also indicated that the motion would be heard on March 7, 2022.

¶68 On March 4, 2022, Schmidt’s new counsel filed a notice of retainer,
and this counsel would represent Schmidt through trial. On that same day,
Schmidt’s new counsel filed a motion asking the circuit court to dismiss the
contempt motion, and seeking relief from the order dismissing Schmidt’s
counterclaims. The motion was supported by an affidavit by Schmidt, in which he
averred that he and his spouse had become seriously ill with COVID in January
and into February 2022, which interfered with their ability to obtain new counsel.
He also averred that he had contacted at least three attorneys before retaining new
counsel on March 3, 2022. He further averred that he had tried to call in to the
February 15 scheduling conference from his barn phone, but he had poor reception
and by the time he successfully reached the court, ten minutes after the scheduling
conference started, the scheduling conference had ended.

¶69 Also on March 4, 2022, Schmidt’s counsel filed a motion to adjourn
the March 7 hearing on Buchholz’s motion for contempt.

¶70 The circuit court held a hearing on Buchholz’s motion for contempt
and Schmidt’s motion for relief from the sanctions order of dismissal on June 24,
2022. The court denied the motion for contempt based on Schmidt’s averments
that he tried to call in, but was too late.

30
No. 2023AP1400

¶71 As to the motion for relief, the circuit court first explained that it was
bound by the transcript of the December 2021 hearing, and that there was no
indication in the transcript that Schmidt was warned that his counterclaims would
be dismissed if Schmidt did not pay or file a motion objecting to Buchholz’s costs
within thirty days.13 The court then found that, nevertheless, Schmidt received
notice of the motion to dismiss and the proposed order of dismissal as a sanction
for Schmidt’s failure to comply with the thirty-day order, and that Schmidt “didn’t
do anything” before the court signed the dismissal order. The court also found
that it had granted Schmidt’s request at the December 20, 2021 hearing for a
continuance of the trial so that Schmidt could retain new counsel; that Schmidt did
not ask for more time to obtain new counsel and to respond to the thirty-day order,
or otherwise contact the court either before the thirty-day deadline or in response
to the motion to dismiss; that Schmidt missed the February 15, 2022 scheduling
conference and received the subsequently filed motion for contempt; and that
Schmidt ultimately paid Buchholz but “paid it late.”

¶72 The circuit court also observed that it “probably would have” ruled
in favor of Schmidt if he had explained to the court his health problems before the
thirty-day deadline and requested another thirty days to retain counsel and to
respond to the order to pay or make a motion. But, the court explained, it would
not permit Schmidt to come in long after the fact to “und[o] everything,” given the
history of delays in the case, and that Schmidt could not receive the benefit of the
continuance of the trial “and then not comply with what [he was] supposed to do.”

13
The circuit court noted that the hearing transcript did not reflect any statement that
Schmidt’s counterclaims would be dismissed if he failed to pay, or file a motion objecting to,
Buchholz’s costs. The court made this observation because Buchholz’s attorney, in his affidavit
supporting the motion to dismiss, averred that the court had made this statement at the hearing.

31
No. 2023AP1400

The court concluded that it would not be fair to Buchholz to allow Schmidt “to
continually adjourn [the trial] and do things late and not have to pay a penalty.”
The court found that Schmidt had fair notice of activities that were “on the table”
for him to accomplish and he never asked for more time. The court also found
that Schmidt did not have “good cause” to ignore the thirty-day order and that,
therefore, dismissal of the counterclaims was warranted. Accordingly, the court
denied the motion for relief.

¶73 On October 31, 2022, Schmidt filed a motion for reconsideration of
the circuit court’s order denying his motion for relief. The court denied the
motion for reconsideration at the pre-trial hearing in November 2022, based on
Schmidt’s failure to present any new arguments or new facts.

Analysis

¶74 Schmidt argues that the circuit court erred in dismissing his
counterclaims as a sanction for his failure to comply with the thirty-day order.
Specifically, he argues that: the court erred by not citing WIS. STAT. § 805.03 or
any other legal authority for imposing the sanction of dismissal; the court did not
make the finding required by § 805.03 that Schmidt’s conduct was egregious;
§ 805.03 does not apply because the thirty-day order was not entered as a written
order; and Schmidt’s due process rights were violated because Buchholz’s motion

32
No. 2023AP1400

did not provide proper notice and the court entered the sanctions order of dismissal
without first holding a hearing.14 We address each argument in turn.

¶75 Schmidt argues that the circuit court erred by not citing WIS. STAT.
§ 805.03 or any other legal authority for imposing the sanction of dismissal.
Although the court did not specifically cite § 805.03, the record establishes that
the court was exercising its authority under that statute when it dismissed
Schmidt’s counterclaims as a sanction. As detailed above, the court explained
why it rejected the reasons that Schmidt belatedly offered for failing to act either
before the thirty-day deadline or in response to Buchholz’s motion to dismiss,
finding that Schmidt had not shown “good cause” for his failure to act. In doing
so, the court applied the no “clear and justifiable excuse” standard that warrants
the sanction of dismissal under § 805.03, and found that Schmidt failed to meet
that standard. See Industrial Roofing Servs., 299 Wis. 2d 81, ¶43 (lead op.).

¶76 Schmidt also argues that the circuit court did not make a finding of
egregious conduct as required under WIS. STAT. § 805.03. See East Winds, 320
Wis. 2d 797, ¶13. The record refutes this contention. As stated above, the court
found that Schmidt knew there was action that he was required to take within

14
We note that Schmidt’s arguments are directed only at the circuit court’s sanctions
order of dismissal, and he does not develop separate arguments directed at the court’s subsequent
orders denying his motion for relief under WIS. STAT. § 806.07 and denying his motion for
reconsideration. We also observe that Schmidt did not specify in the circuit court, and does not
specify on appeal, which subparagraph of § 806.07 purportedly triggered relief; nor does he on
appeal address the subparagraph-specific standards that would apply to our review of the court’s
decision denying his § 806.07 motion. Buchholz does not argue that we should not address
Schmidt’s arguments because they are directed only at the court’s sanctions order of dismissal.
However, to the extent that Schmidt raised arguments in support of his motion for relief from the
sanctions order of dismissal that are similar to the arguments directed at that order that he makes
on appeal, and because we review both decisions for an erroneous discretion (see ¶64 above), we
proceed to address them.

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No. 2023AP1400

thirty days of the December 20, 2021 hearing, and that he did not take that action
either within the thirty days or, after that deadline passed, in response to
Buchholz’s motion to dismiss. When Schmidt offered reasons for his failure to act
to support his motion for relief from the dismissal order, the court acknowledged
that those reasons may have justified an extension of the deadline if Schmidt had
communicated them to the court before the deadline or in response to Buchholz’s
motion to dismiss. However, the court also found that Schmidt had no “good
cause” for waiting to contact the court until well after the court entered the
dismissal order. While the court did not use the term “egregious,” its finding that
Schmidt had no “good cause” for his failure to act, along with its finding that to
allow Schmidt to continually delay the proceedings “and do things late” without
having to pay a penalty would be unfair to Buchholz, establish that the court
implicitly and on a reasonable basis did find that Schmidt’s conduct was
unjustified and did determine that the conduct was egregious. See Industrial
Roofing Servs., 299 Wis. 2d 81, ¶43 (a party’s failure to comply with a court order
is egregious when there is no “‘clear and justifiable excuse’”) (citation omitted)
(lead op.).

¶77 While Schmidt would characterize his conduct differently, he does
not show that the circuit court’s factual findings stated above are clearly
erroneous. In light of the court’s factual findings, and the need of circuit courts to
be able to control their calendars to ensure “the orderly administration of justice,”
Trispel, 89 Wis. 2d at 731, we cannot say that the circuit court erroneously
exercised its discretion when it implicitly determined that Schmidt’s
noncompliance with the court’s thirty-day order, and continued inaction until well
after the court entered the dismissal order, were egregious. See Industrial

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Roofing Servs., 299 Wis. 2d 81, ¶43 (dismissal warranted when failure to act was
“‘extreme, substantial, and persistent’”) (quoted source omitted) (lead op.).

¶78 Schmidt also argues that WIS. STAT. § 805.03 does not apply
inasmuch as he was not required to comply with the circuit court’s thirty-day order
because it was not a written order signed by the court. Schmidt cites WIS. STAT.
§ 807.11, which states, “An order is rendered when it is signed by the judge.”
Sec. 807.11(1). However, Schmidt cites no case law to support the proposition
that an order that is not “rendered” under § 807.11 does not bind the parties.
Accordingly, we do not further consider this proposition. See Industrial Risk
Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d
148, 769 N.W.2d 82 (“Arguments unsupported by legal authority will not be
considered, and we will not abandon our neutrality to develop arguments.”
(citation omitted)).

¶79 Schmidt also argues that his due process rights were violated
because Buchholz’s motion did not provide proper notice and the circuit court
entered the sanctions order of dismissal without first holding a hearing. As to the
issue of notice, Schmidt asserts that Buchholz’s motion was insufficient to provide
proper notice because “it is the government’s responsibility to provide notice, not
a party’s.” We reject this assertion because it is conclusory and not supported by
legal authority. See Wisconsin Conf. Bd. of Trs. of the United Methodist
Church, Inc. v. Culver, 2001 WI 55, ¶38, 243 Wis. 2d 394, 627 N.W.2d 469 (we
do not address arguments that are conclusory and insufficiently developed).
Schmidt also asserts that Buchholz’s motion did not provide proper notice “of
what was at stake,” because Buchholz also filed other documents. We reject this
assertion because it is conclusory and not supported by references to the record,
and also because Schmidt does not explain why this shows that the circuit court

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erred in rejecting his reasons for his inaction. See State v. McMorris, 2007 WI
App 231, ¶30, 306 Wis. 2d 79, 742 N.W.2d 322 (court of appeals “may choose not
to consider arguments unsupported by references to legal authority, arguments that
do not reflect any legal reasoning, and arguments that lack proper citations to the
record”).

¶80 Schmidt also suggests he did not have sufficient notice that his
counterclaims would be dismissed if he did not comply with the thirty-day order
because, in the absence of a written order, Schmidt had to rely his memory.
However, he fails to show that the circuit court’s findings on the issue of notice
are clearly erroneous. The record shows that Schmidt was present at the hearing
during which the court orally issued the thirty-day order. The court found that
Schmidt failed to contact the court before the thirty-day deadline to ask for more
time to obtain counsel, to respond to the order, and to explain the reasons why
more time was needed. The court also found that, after the deadline passed,
Schmidt received Buchholz’s motion to dismiss Schmidt’s counterclaims as a
sanction for Schmidt’s failure to comply with the order. Further, the court found
that Schmidt failed at that point, or thereafter, to contact the court seeking more
time in response to Buchholz’s motion to dismiss. These findings establish that
Schmidt had ample notice at the December 2021 hearing that he had thirty days to
pay or file a motion in response to the order to pay and further establish that he
had ample notice, upon receipt of Buchholz’s motion after the thirty-day deadline
had passed, that if he still did not act his counterclaims could be dismissed.
Accordingly, he fails to show that the court erroneously found that he had
sufficient notice.

¶81 Schmidt also asserts that the circuit court violated his right to due
process when it issued the sanctions order of dismissal without a hearing. This is

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also a conclusory assertion. Further, it disregards the hearing that was held in
response to Schmidt’s motion for relief from the sanctions order of dismissal.
Beyond all that, Buchholz’s motion asked the court to issue the sanctions order of
dismissal either after a hearing, or “as decided by the court on the basis of the
supporting papers of the movant,” and Schmidt did not respond to the motion. For
all these reasons, Schmidt fails to show that the court violated his due process
rights when it issued the sanctions order of dismissal.

¶82 In sum, the record shows that the circuit court examined the relevant
facts and applied the relevant law to reach a reasonable determination when it
issued the sanctions order of dismissal. Accordingly, we conclude that the court
properly exercised its discretion in dismissing Schmidt’s counterclaims as a
sanction for his failure to comply with the court’s thirty-day order.15

III. Whether the Drainage Easement Order incorporated in the judgment
exceeds the scope of the jury’s verdict on the prescriptive easement

¶83 After the jury returned its verdict on the claims by Buchholz that
went to trial, the circuit court entered a judgment that incorporates a Drainage
Easement Order. Schmidt argues that two terms must be removed from the order
because they do not “conform with” the jury’s verdict finding that Buchholz holds
a prescriptive easement over the drain tile on Schmidt’s property. We understand

15
Schmidt also argues that the circuit court in an earlier order erroneously denied his
motion in limine seeking permission to present at trial his evidence of damages related to his
remaining counterclaims based on his failure to comply with the court’s scheduling order and
Buchholz’s discovery requests. Our conclusion affirming the court’s subsequent dismissal of all
of Schmidt’s remaining counterclaims is dispositive of Schmidt’s appeal as to those
counterclaims. Accordingly, we do not address his challenge to the court’s earlier order
excluding Schmidt’s evidence of damages on those counterclaims. See Barrows v. American
Family Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An appellate
court need not address every issue raised by the parties when one issue is dispositive.”).

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Schmidt to argue that these two terms of the order exceed the scope of the
easement found by the jury. We first summarize pertinent legal principles and
additional background, and then address each term in turn.

¶84 “An easement ‘is a permanent interest in another’s land, with a right
to enjoy it fully and without obstruction.’” Konneker v. Romano, 2010 WI 65,
¶25, 326 Wis. 2d 268, 785 N.W.2d 432 (citation omitted). “It is a liberty,
privilege, or advantage in lands, without profit, and existing distinct from the
ownership of the land. An easement creates two distinct property interests—the
dominant estate, which enjoys the privileges as to other land granted by an
easement, and the servient estate, which permits the exercise of those privileges.”
AKG Real Est., LLC v. Kosterman, 2006 WI 106, ¶3, 296 Wis. 2d 1, 717 N.W.2d
835 (citations omitted).

¶85 Here, Buchholz owns the dominant estate, as the holder of the
prescriptive easement over the drain tile on Schmidt’s property, and Schmidt owns
the servient estate, as the owner of the property on which the prescriptive
easement is located.

¶86 “The ‘dominant estate’ enjoys the privileges granted by the
easement, and the ‘servient estate’ permits the exercise of those privileges.”
Konneker, 326 Wis. 2d 268, ¶25 (citing Atkinson v. Mentzel, 211 Wis. 2d 628,
637, 785 N.W.2d 432 (Ct. App. 1997)). A servient estate cannot by affirmative
act interfere with the dominant estate’s use of the easement. Koch v. Hustis, 113
Wis. 599, 604, 87 N.W. 834 (1907); Hunter v. Keys, 229 Wis. 2d 710, 716, 600
N.W.2d 269 (Ct. App. 1999) (“The owner of the servient estate may not intrude
into the easement in such a way as to interfere with the dominant estate’s easement
rights.”); see also Konneker, 326 Wis. 2d 268, ¶25 (a prescriptive easement grants

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the dominant estate holder a permanent interest to use another’s land without
obstruction). However, the privileges granted to the dominant estate are not
limitless: “As a general proposition, the owner of the easement upon another’s
land is bound to make all necessary repairs …. The owner of the servient estate is
not bound to make repairs in the absence of an agreement so to do.” Koch, 113
Wis. at 604.

¶87 “[T]he scope of a prescriptive easement is determined by the scope
of the use giving rise to the easement. However, because no use can ever be
exactly duplicated, the use giving rise to a prescriptive easement determines only
the general outlines of the easement, rather than the minute details of the interest.”
Widell v. Tollefson, 158 Wis. 2d 674, 686, 462 N.W.2d 910 (Ct. App. 1990)
(citation omitted). A party’s easement rights are confined to a reasonable use of
the way in which the party had acquired rights by prescription, “‘in view of all the
circumstances of the case and the use then and theretofore made of the premises
affected by it.’” Widell, 158 Wis. 2d at 686-87 (Ct. App. 1990) (citation omitted).

¶88 Schmidt asserts without citation to legal authority that our review of
the issue of whether the order exceeds the scope of the verdict is de novo, and
Buchholz does not address the standard of review. We consider persuasive case
law stating that the determination of the “minute details” of a prescriptive
easement involves an exercise of the circuit court’s discretion, based on its review
of all of the circumstances of the case. See SWS, LLC v. Weynand,
No. 2009AP2308, unpublished slip op. at ¶¶51-52 (WI App Feb. 17, 2011)
(reviewing for erroneous exercise of discretion circuit court’s redrawing location

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of easement based on pattern of use and condition of property). 16 In other words,
when a jury finds an easement and a legal document setting forth the details is
needed, the court has discretion to craft the legal document setting forth the details
of the easement as long as the details are consistent with the jury verdict.
Therefore, we review whether the court “examined the relevant facts, applied a
proper standard of law, and reached a reasonable conclusion.” Teubel, 249
Wis. 2d 743, ¶15.

¶89 As we now proceed to explain, Buchholz does not point to any
portion of the record showing that the circuit court in fact exercised its discretion
as to the challenged terms, or to any evidence on which the court could rely that
would support a discretionary determination.

¶90 Here, the jury found that Buchholz established all of the elements of
a prescriptive easement over the “drainage tile” on Schmidt’s property. 17 That
finding is not challenged on appeal.

¶91 After the jury entered its verdict, Buchholz submitted a proposed
Drainage Easement Order, in which the “drainage tile” referenced in the verdict is
called the “Drainage System.” After hearing Schmidt’s pro se objections to the
proposed order, the circuit court issued the order as proposed.

16
See WIS. STAT. RULE 809.23(3)(b) (permitting the citation of authored, unpublished
opinions issued after July 1, 2009, for their persuasive value).
17
A prescriptive easement is established when the use of another’s land satisfies four
elements: (1) adverse use that is hostile and inconsistent with the exercise of the titleholder’s
possessive rights; (2) which is visible, open, and notorious; (3) under an open claim of right; and
(4) continuous and uninterrupted for a period of twenty years. Mushel v. Molitor, 123 Wis. 2d
136, 144, 365 N.W.2d 622 (1985).

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¶92 The Drainage Easement Order provides that, “Buchholz may install,
repair, maintain or replace an agricultural drainage tile line, to drain storm water
from the Buchholz Parcel and the Schmidt Parcel to a point of discharge along the
south end of the Schmidt Parcel (the ‘Drainage System’).” The order also
provides that, pursuant to the jury verdict, the circuit court “orders an easement
created over, under and across that part of the Schmidt Parcel within which the
Drainage System will be located, and to provide for the operation and maintenance
of the Drainage System.” The order further provides that “Buchholz shall have
primary responsibility for all maintenance, inspection, repair and replacement of
the Drainage System.” In addition, the order contains the two terms challenged by
Schmidt on appeal, which require that Schmidt: (1) pay all costs associated with
the construction, maintenance, and repair of the drain tile; and (2) refrain from
building or planting on the easement without Buchholz’s written consent.

¶93 As stated, Schmidt argues that these two terms exceed the scope of
the special verdict on this issue. Specifically, Schmidt notes that the jury found
only that the evidence proved all of the elements of a prescriptive easement in
favor of Buchholz over the drain tile on Schmidt’s property. Schmidt argues that
these two terms give Buchholz “more than what the jury awarded” him.

¶94 The first term challenged by Schmidt states, “Schmidt shall be solely
responsible for all costs incurred with respect to the construction, maintenance,
inspection, repair, and replacement of the Drainage System and all components
thereof.” This makes Schmidt responsible for all of the costs that Buchholz will
incur in using his easement for a “Drainage System” that Buchholz may “install,
maintain, or replace” on Schmidt’s property. Buchholz cites no legal basis for this
term. We conclude that Buchholz’s argument that imposing that responsibility on
Schmidt is inherent to the prescriptive easement found by the jury, would be akin

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to asserting that an easement holder may require that the property owner pay for
the road that the easement holder builds and uses over the owner’s property
merely by virtue of the existence of the easement. The law appears to be to the
contrary. See Koch, 113 Wis. at 604 (“[T]he owner of an easement upon another’s
land is bound to make all necessary repairs …. The owner of the servient estate is
not bound to make repairs in the absence of an agreement to do so.”).

¶95 Nor does Buchholz point to any evidentiary support for this term.
Buchholz does not cite, and our review of the record does not reveal, evidence of
an agreement by the parties that addresses their financial obligations regarding the
easement. See id. (explaining that an agreement is required to shift the burden of
maintenance away from the dominant estate).

¶96 Buchholz argues that this term is necessary because Schmidt
“disconnected” the damaged drain tile in 2019. However, while Buchholz may
have sought to (and did) recover damages from Schmidt in support of his trespass
and nuisance claims based on that conduct, Buchholz does not cite legal authority
supporting the proposition that such conduct authorizes the circuit to order, as part
of the easement, that Schmidt be solely financially responsible for Buchholz’s
beneficial use of the easement. Buchholz also does not cite record evidence
showing that the circuit court considered such conduct, or for that matter any other
facts, in including this term in the easement order.

¶97 The second term Schmidt challenges provides, “Schmidt shall not
construct any improvements (including buildings, concrete structures, or other
permanent structures), or plant any trees or shrubs, within the Drainage System
Easement Area, without the prior written consent of Buchholz.” Schmidt argues
that this term also exceeds the scope of the prescriptive easement found by the

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jury, and that any such arrangements should have been negotiated between the
parties. In response, Buchholz asserts that, if Schmidt were permitted to build and
plant on the area covered by the “Drainage System” easement, “it would defeat the
purpose of the easement by impacting [Buchholz’s] ability to drain [Buchholz’s]
land.” However, Buchholz points to no evidence presented at trial that would
support this conclusory assertion. The law requires only that Schmidt cannot build
or plant within the easement area in such a way as to interfere with Buchholz’s use
of what the jury here referred to as the drainage tile. See Hunter, 229 Wis. 2d at
717 (stating that the owner of the servient estate may use the land in such a fashion
as the owner pleases as long as the use does not interfere with the purpose for
which the easement was created). Absent the identification of any evidence on
which the circuit court could rely to show that Buchholz’s prior consent is
reasonably required to prevent such interference, Buchholz fails to rebut
Schmidt’s argument that this requirement is not within the scope of the easement
found by the jury.

¶98 In sum, we conclude that the circuit court erroneously included the
two challenged terms in the Drainage Easement Order, and we remand to the court
with directions to enter an amended Drainage Easement Order that does not
include these two terms.

CONCLUSION

¶99 For the reasons above, we conclude that the circuit court properly
denied Schmidt’s motion for summary judgment seeking to dismiss Buchholz’s
nuisance claims based on the Right to Farm Law, properly granted Buchholz’s
motion for summary judgment in his favor on his breach of contract claim and
dismissing Schmidt’s breach of contract counterclaim, and properly granted

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Buchholz’s motion to dismiss Schmidt’s counterclaims as a sanction for Schmidt’s
failure to comply with a court order. We also conclude that the court erroneously
included in the Drainage Easement Order that was incorporated in the judgment
two terms that exceed the scope of the jury’s verdict on Buchholz’s prescriptive
easement claim. Accordingly, we affirm in part, reverse in part, and remand with
directions to enter an amended Drainage Easement Order that does not include
those terms.

¶100 Neither party shall receive appellate costs. See WIS. STAT. RULE
809.25(1).

By the Court.—Judgment affirmed in part; reversed in part, and
cause remanded with directions.

Recommended for publication in the official reports.

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