2025AP002088
Wis. Ct. App.Jul 29, 2026Background
- Cory's parents divorced, Cory was 17 when guardianship petitions were filed, and he has a diagnosed condition causing significant cognitive, language, and social delays. 1
- After the guardianship hearing, the circuit court dismissed Russell's petition and appointed Kelly as Cory's sole guardian of his person. 2
- Russell then filed repeated petitions for review of Kelly's conduct, alleging Kelly isolated Cory from him and failed to act in Cory's best interests. 3
- This court previously affirmed dismissal of Russell's prior review petitions and held he was not an interested person under chapter 54. 4
- For Russell's eighth review petition, the circuit court dismissed it as barred by lack of interested-person status and res judicata, found his filings frivolous, and barred further filings without leave. 5
- Russell appealed, challenging the standing ruling, lack of a hearing, the res judicata ruling, the waiver of Cory's appearance, and the filing restrictions. 6
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Russell was an interested person with standing 7 | Russell claimed he remained a party under section 50.085(1)(am). | Kelly and the court said chapter 54 controls and Russell is not an interested person. | Russell lacked standing because he is not an interested person under section 54.01(17)(b). 8 |
| Whether Russell was entitled to a hearing on the review petition 9 | Russell argued section 54.68(3) required a hearing. | A hearing is available only for properly filed petitions by authorized persons. | No hearing was required because Russell could not properly pursue review. 10 |
| Whether res judicata barred the eighth petition 11 | Russell claimed new facts defeated claim preclusion. | The petition repeated the same claims already decided on the merits. | The eighth petition was barred by res judicata. 12 |
| Whether the court erred in waiving Cory's appearance 13 | Russell said the court should not keep waiving Cory's presence. | The GAL waived appearance, Cory did not want to attend, and the court had discretion. | The court properly continued waiving Cory's appearance. 14 |
| Whether sanctions and filing restrictions were proper without a hearing 15 | Russell challenged the frivolousness finding and lack of an order-to-show-cause hearing. | Russell had notice, prior sanctions, and persistent frivolous filings justified leave-to-file restrictions. | The frivolousness finding and leave requirement were proper; any hearing error was harmless. 16 |
Key Cases Cited
- Waushara County v. Graf, 166 Wis. 2d 442 (Wis. 1992) (pro se litigants get some leniency but are bound by appellate rules 17)
- Industrial Risk Insurers v. American Eng'g Testing, Inc., 318 Wis. 2d 148 (Wis. Ct. App. 2009) (court will not develop arguments for a litigant 18)
- State v. Pettit, 171 Wis. 2d 627 (Wis. Ct. App. 1992) (unsupported arguments need not be considered 19)
- State v. Popenhagen, 309 Wis. 2d 601 (Wis. 2008) (statutory interpretation reviewed independently 20)
- Northern States Power Co. v. Bugher, 189 Wis. 2d 541 (Wis. 1995) (claim preclusion is reviewed de novo 21)
- Kruckenberg v. Harvey, 279 Wis. 2d 520 (Wis. 2005) (states the elements of claim preclusion and transactional approach 22)
- DePratt v. West Bend Mut. Ins. Co., 113 Wis. 2d 306 (Wis. 1983) (adopted in the transactional approach for claim identity 23)
- Weborg v. Jenny, 341 Wis. 2d 668 (Wis. 2012) (discretion standard for circuit court decisions 24)
- Racine County v. P.B., 405 Wis. 2d 383 (Wis. Ct. App. 2022) (distinguished because that ward wanted to attend hearings 25)
- City of Sun Prairie v. Davis, 226 Wis. 2d 738 (Wis. 1999) (courts have inherent authority to manage their dockets efficiently 26)
- Rupert v. Home Mut. Ins. Co., 138 Wis. 2d 1 (Wis. Ct. App. 1987) (courts may control their dockets with economy of time and effort 27)
- Minniecheske v. Griesbach, 161 Wis. 2d 743 (Wis. Ct. App. 1991) (courts may restrict access to stop frivolous litigation 28)
- Wenzel v. Wenzel, 378 Wis. 2d 670 (Wis. Ct. App. 2017) (discretionary frivolousness sanctions are upheld if based on proper law and rational process 29)
- Stern v. Thompson & Coates, Ltd., 185 Wis. 2d 220 (Wis. 1994) (frivolousness is a mixed question of law and fact 30)
- Evelyn C.R. v. Tykila S., 246 Wis. 2d 1 (Wis. 2001) (an error is harmless absent a reasonable possibility it affected the outcome 31)