Jackson B. Pellett, II v. Judson Pellett

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 19, 2023
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. 2022AP1562 Cir. Ct. No. 2019CV112

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

JACKSON B. PELLETT, II, JOSEPH B. PELLETT,
AND JOAN J. PELLETT,

PLAINTIFFS-RESPONDENTS,

V.

JUDSON PELLETT,

DEFENDANT-APPELLANT.

APPEAL from orders of the circuit court for Richland County:
DARCY JO ROOD, Judge. Affirmed.

Before Kloppenburg, P.J., Blanchard, 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).
No. 2022AP1562

¶1 PER CURIAM. Judson Pellett’s father—through the agency of one
of Judson’s siblings—commenced this action in Richland County Circuit Court
against Judson, claiming that Judson unduly influenced his parents to transfer
valuable Vilas County property to him.1 After the father’s death, while the action
was still pending, Judson’s siblings were named as the plaintiffs and continued to
pursue this action against Judson. Following a four-day bench trial, the circuit
court determined in the siblings’ favor that Judson had unduly influenced the
parents. On that basis, the court declared invalid the quit claim deeds that the
parents used to transfer the Vilas County property to Judson and issued a
corresponding order for declaratory judgment. Judson appeals three circuit court
rulings: (1) granting a motion to substitute the siblings for the father as the
plaintiffs in this action, following the father’s death; (2) determining that there was
sufficient evidence of undue influence; and (3) making two evidentiary decisions
that Judson argues permitted “character assassination” of Judson. We reject each
of Judson’s arguments and affirm.

BACKGROUND

Complaint filed on behalf of John Pellett

¶2 In December 2019, Jackson Pellett commenced this action on behalf
of his father, John Pellett.2 The suit sought an order invalidating quit claim deeds
to property that John and his wife Joan Pellett (collectively, “the parents”)

1
Multiple pertinent individuals share the surname Pellett. Therefore, we use first names
after first references for those individuals.
2
Jackson filed the action on behalf of John under the authority of a durable power of
attorney for financial matters executed by John; there is no dispute that Jackson could properly
initiate this action on behalf of John as he did.

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executed conveying real estate and improvements to Judson Pellett, Jackson’s
brother. The action specifically challenged the validity of multiple deeds that the
parents executed during two sets of transfers, one set in 2018 and the other in
2019. John claimed that Judson obtained the deeds by exercising undue influence
over the parents. The complaint includes the following pertinent allegations.

¶3 Jackson and Judson are two of the four surviving children of the
parents. At relevant times, the parents owned extensive real estate and
improvements in Vilas County. In April 2014, the parents executed an estate plan
calling for assets, which included the Vilas County property, to be distributed
equally among the four surviving children, and the parents informed the four
children of this estate plan.

¶4 Continuing our summary of the complaint’s allegations, Judson had
opportunities to influence his parents with respect to the disposition of their assets,
particularly as they aged, suffered from infirmities, and “became more susceptible
to influence.” Before Joan died in 2019, Judson “used his influence to convince
his parents to execute quit claim deeds transferring” to Judson alone Vilas County
property with a total value exceeding $2.5 million. Further, Joan “lacked the
mental capacity to execute the quit claim deeds.” After the property transferred to
Judson, John told Judson’s siblings that the parents had made the transfers only as
a result of Judson’s undue influence over them. John also asked Judson to return
to the parents the property subject to the deeds, but Judson would not do so.

John’s death; Judson files suggestion of death

¶5 John died on September 25, 2021. On November 11, 2021, while
this case was still pending in the circuit court, Judson’s counsel filed with the
court a “suggestion of death,” pursuant to WIS. STAT. § 803.10(1)(a) (2021-22),

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which describes the procedure for the substitution of parties following the death of
a party.3 This came in the form of a very short filing, which advised “counsel of
record” of the fact and the date of John’s death. The brief filing did not purport to
identify a party to the pending action, a “successor,” or a “representative of the
deceased party,” who would be a suitable substitute plaintiff and who therefore
would need to move for substitution as the plaintiff within 90 days under
§ 803.10(1)(a) or else the action would be dismissed for lack of a proper plaintiff.
See § 803.10(1)(a).

Motion to substitute for John as plaintiff

¶6 On February 8, 2022, Jackson “in his capacity as authorized agent
for” John filed a motion in the circuit court for an order substituting for the now
deceased plaintiff John as proper plaintiffs the following individuals: Jackson and
two of his siblings, Joseph Pellett and Joanie Pellett. The siblings took the

3
WISCONSIN STAT. § 803.10 addresses methods by which parties may be substituted in
pending circuit court actions under various circumstances. The first subpart addresses the death
of a current party and provides for a 90-day window for the filing of a motion for substitution:

(1) DEATH. (a) If a party dies and the claim is not
thereby extinguished, the court may order substitution of the
proper parties. The motion for substitution may be made by any
party or by the successors or representatives of the deceased
party and, together with the notice of hearing, shall be served on
the parties as provided in [WIS. STAT. §] 801.14 and upon
persons not parties in the manner provided in [WIS. STAT.
§] 801.11 for the service of a summons. Unless the motion for
substitution is made not later than 90 days after the death is
suggested on the record by service of a statement of the facts of
the death as provided herein for the service of the motion, the
action shall be dismissed as to the deceased party.

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

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No. 2022AP1562

position that they qualified as proper substitute parties under WIS. STAT.
§ 803.10(1)(a) because they were “successors ... of the deceased party.” In
support, the siblings’ attorney submitted by affidavit copies of John’s will and a
revocable living trust created by the parents. Based on these documents, the
siblings argued that relevant trust property is to be distributed in equal shares to
the four children. Therefore, the argument continued, if the siblings as proposed
plaintiffs are successful in this lawsuit, resulting in the invalidation of the quit
claim deeds, then the real estate subject to the deeds “would become property of
the Trust and be distributed according to the terms of the Trust,” benefitting the
siblings.

¶7 Judson argued in response that the substitution motion filed by
Jackson on behalf of John “is a nullity” because the durable power of attorney
allowing Jackson to act on behalf of John terminated when John died. In the
alternative, Judson argued that the siblings could not qualify as proper party
plaintiffs under WIS. STAT. § 803.10(1)(a). He contended that this was because
they were neither personal representatives for John’s estate nor successors as heirs,
beneficiaries, or distributees of John’s estate, since the estate had not yet been
distributed.

¶8 Jackson replied that Judson had objected to a petition for
administration of John’s estate that Joanie had filed in Florida (where John resided
before his death), and that this objection was an attempt to delay the appointment
of a personal representative for the estate. Jackson argued that the siblings should
be substituted for John as the plaintiffs or that, in the alternative, the case should
be adjourned “until such time as Jud[son]’s objections in the Florida probate court
can be heard and a personal representative appointed.”

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No. 2022AP1562

¶9 At a hearing devoted in part to the substitution motion, the circuit
court granted the motion, allowing the siblings to substitute for John as the
plaintiffs, based on the court’s interpretation of WIS. STAT. § 803.10(1)(a).

Court trial

¶10 The undue influence claim was tried to the circuit court in March
and April 2022, through both in-person and deposition testimony. One theory
advanced by the siblings was the following: when Joan was in a steep decline,
Judson unduly influenced her to believe that the parents should convey the
property to him, and then Judson teamed up with her to unduly influence John to
execute the quit claim deeds. Judson emphasized evidence raising reasonable
inferences that the parents favored him over his siblings in making gifts even
before giving him the challenged quit claim deeds and that the parents recognized
what Judson characterized as his own special love for the Vilas County property.

¶11 After hearing oral arguments and taking the case under advisement,
the circuit court issued a written opinion in which it explained its determination
that “the evidence clearly, convincingly[,] and satisfactorily establishes that
Judson unduly influenced the Parents regarding both the 2018 and 2019 property”
transfers to Judson. Based on these determinations, the court declared the deeds
invalid. Judson appeals.

DISCUSSION

¶12 We begin with the substitution issue, because if Judson were correct
on that issue then we would reverse the circuit court’s decision and we would not
reach the challenged trial rulings. We reject Judson’s arguments on the
substitution issue and therefore we address the two other issues.

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No. 2022AP1562

I. SUBSTITUTION MOTION

¶13 Judson argues that the circuit court erred in granting the substitution
motion because the circuit court (1) misapplied the law governing whether the
court could properly entertain a substitution motion filed by Jackson on behalf of
John, because Jackson lacked authority to file the substitution motion on behalf of
John after John’s death, and (2) misinterpreted WIS. STAT. § 803.10(1)(a). For
these reasons, Judson argues, the court was required to dismiss the action based on
the absence of a proper plaintiff. We address these two issues in turn.

¶14 As to both substitution issues, the interpretation and application of
the statutes and case law identified below to the undisputed relevant facts present
legal issues that we decide de novo. See Kersten v. H.C. Prange Co., 186 Wis. 2d
49, 56, 520 N.W.2d 99 (Ct. App. 1994) (“The question of whether the facts fulfill
a particular legal standard is a question of law which we decide independently and
without deference to the [circuit] court.”).

A. Jackson’s authority to file substitution motion; harmless error

¶15 Judson argues that the circuit court should have denied the
substitution motion on the following grounds: Jackson filed the motion on behalf
of John, but by that time John had died, and therefore Jackson “had no authority to
file” the motion, which renders the motion “a nullity.” The power of attorney that
John executed, on which Jackson relied in initiating this action on John’s behalf,
stated that it was governed by Florida law. Judson cites Florida law for the
proposition that Jackson lacked authority to act on behalf of John after John’s
death.

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No. 2022AP1562

¶16 The siblings respond in pertinent part that any error by the circuit
court in failing to reject the motion on the ground that Jackson could not file it on
John’s behalf after John’s death was harmless. This is because the court would
have entertained and granted the motion if it had been filed by the siblings and not
by Jackson on behalf of John. See WIS. STAT. § 803.06(1) (“Parties may be
dropped or added by order of the court on motion of any party or on its own
initiative at any stage of the action and on such terms as are just.”); WIS. STAT.
§ 805.18(2).4

¶17 We assume without deciding that the circuit court erred in rejecting
Judson’s specific argument that, with John’s death, Jackson lost authority to file
the substitution motion on John’s behalf. But we conclude that the circuit court
would have readily entertained and granted a substitution motion by the siblings,
relying in part on the broad language of WIS. STAT. § 803.06(1). With this in
mind, and in light of our analysis of WIS. STAT. § 803.10(1)(a) in the following
subsection of this opinion, the assumed error was therefore harmless under WIS.
STAT. § 805.18(2). Put differently, we conclude that, in the words of § 805.18(2),
“the error complained of has [not] affected [Judson’s] substantial rights.”

4
WISCONSIN STAT. § 805.18(2) provides, with emphasis now added:

No judgment shall be reversed or set aside or new trial
granted in any action or proceeding on the ground of selection or
misdirection of the jury, or the improper admission of evidence,
or for 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.

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No. 2022AP1562

¶18 Explaining further, Judson alleges an error of pleading or procedure
and does not develop an argument that WIS. STAT. § 805.18(2) could not apply
here. Stated in the terms of WIS. STAT. § 803.06(1), the circuit court “added”
“[p]arties” “by order of the court,” which the court was free to do “on its own
initiative at any stage of the action and on such terms as are just.” Given that such
a motion could so easily have been taken under consideration by the court—and
from all that we can see in the record and the arguments of the parties, readily
would have been taken under consideration—reversal based on the identity of the
moving party (or, in Jackson’s case, capacity) would make no sense on these facts.

¶19 Judson makes two arguments. First, he contends that the siblings’
argument based on WIS. STAT. § 803.06(1) “was not raised before the trial court”
and therefore “was waived and should not be considered on appeal.” This is
apparently intended as a reference to a rule of forfeiture that is properly stated as
follows: a party may forfeit a legal argument or theory by failing to preserve it
before the circuit court and then attempting to raise it for the first time on appeal in
a way that would “blindside” the circuit court if it served as the basis for reversal.
See Townsend v. Massey, 2011 WI App 160, ¶¶24-26, 338 Wis. 2d 114, 808
N.W.2d 155. Judson fails to recognize that it would not blindside the circuit court
here to affirm the court on this issue and that we may generally affirm a circuit
court’s decision based on a rationale different from the one on which the court
relied. See State v. Trecroci, 2001 WI App 126, ¶45, 246 Wis. 2d 261, 630
N.W.2d 555. Based on the record and the arguments of the parties, we conclude
that affirmance on this ground is appropriate.

¶20 Second, Judson argues that application of the harmless error doctrine
here would disregard “the specific language of [WIS. STAT.] § 803.10(1)(a), which
provides ‘… the action shall be dismissed as to the deceased party’ if the statute is

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No. 2022AP1562

not complied with.” However, we explain in the following subsection of this
opinion why the “shall be dismissed” rule of § 803.10(1)(a) was not triggered
here, because the suggestion of death filed by Judson failed to designate a
substitute for the deceased plaintiff as required by Wick v. Waterman, 143 Wis. 2d
676, 679, 421 N.W.2d 872 (Ct. App. 1988).5

¶21 In sum, we assume that it was error for the circuit court to entertain a
motion filed by Jackson on behalf of John but conclude that the assumed error was
harmless.

B. Interpretation of WIS. STAT. § 803.10(1)(a)

¶22 Judson argues that the circuit court misinterpreted WIS. STAT.
§ 803.10(1)(a) by granting the substitution motion. We resolve this issue on a
narrow ground: Under Wick, the suggestion of death filed by Judson failed to
trigger the potential application of § 803.10(1)(a) that could result in dismissal
because the suggestion does not identify a proper party to substitute for John. See
Wick, 143 Wis. 2d at 679-80.

¶23 Apart from the argument that we have rejected in the subsection
above about who could bring the substitution motion, Judson fails to develop an
argument that the circuit court’s substitution ruling should be reversed if WIS.
STAT. § 803.10(1)(a) does not apply. Judson also cannot dispute that the very
short suggestion of death that he filed did not name a proper substitute for the

5
We do not rely on references that the siblings make to the doctrine of standing. It
appears that this doctrine does not apply in the context of the dispute here.

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No. 2022AP1562

deceased John: a party to the action, a “successor[],” or a “representative[] of the
deceased party.” See § 803.10(1)(a).

¶24 The siblings argue in pertinent part that WIS. STAT. § 803.10(1)(a)
does not apply because Judson’s suggestion of death does not identify a proper
party to substitute for John. This position is based on Wick’s statement that such
identification is a required element for a suggestion of death in order to trigger the
90-day clock under § 803.10(1)(a). See Wick, 143 Wis. 2d at 679 (citing with
approval a federal court statement “that a suggestion of death which failed to
identify a proper party to substitute for a deceased defendant did not trigger the
running of the 90-day period”). Any other approach would “‘open the door to a
tactical maneuver’” of triggering the clock under circumstances when it might be
difficult for the opposing party to “‘locat[e] the representative of the estate’” for
purposes of substitution. See id. (quoting Rende v. Kay, 415 F.2d 983, 986 (D.C.
Cir. 1969));6 see also Schwister v. Schoenecker, 2002 WI 132, ¶3 n.2, 258
Wis. 2d 1, 654 N.W.2d 852 (citing and relying on Wick without suggesting any
error in Wick).

¶25 Judson has three arguments on this point, none well-developed or
persuasive. First, Judson asserts that the statement in Wick is necessarily limited
to suggestions of death filed by plaintiffs regarding deceased defendants, and the
suggestion of death here was filed by a defendant regarding a deceased plaintiff. It

6
Regarding the reliance on federal case law, Wisconsin courts interpreting WIS. STAT.
§ 803.10(1)(a) have looked to federal court interpretations of the “almost identical[ly]” worded
Rule 25(a)(1) of the Federal Rules of Civil Procedures for persuasive authority. Wick v.
Waterman, 143 Wis. 2d 676, 679, 421 N.W.2d 872 (Ct. App. 1988). Neither party suggests that
there have been any changes that could matter in the wording of any relevant federal or
Wisconsin statute since the cases we reference were issued.

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No. 2022AP1562

is true that both Wick, and one of the federal opinions that Wick relies on as
persuasive authority, Rende, involved deceased defendants, not as here a deceased
plaintiff. See Wick, 143 Wis. 2d at 678; Rende, 415 F.2d at 986. But Judson fails
to address the fact that both courts used broad language that was not, on its face,
strictly limited to decedents who are defendants; instead the focus was on the
danger of injustice arising from tactical abuse of the 90-day rule. See Wick, 143
Wis. 2d at 679; Rende, 415 F.2d at 986. As the Rende court stated, using a broad
formulation: “No injustice results from the requirement that a suggestion of death
identify the representative or successor of an estate who may be substituted as a
party for the deceased before [FED. R. CIV. P.] Rule 25(a)(1) may be invoked by
those who represent or inherit from the deceased.” Rende, 415 F.2d at 986.
Judson is one who will inherit from the deceased. More generally, Judson simply
asserts the distinction and fails to develop an argument supported by legal
authority that the reasoning in Wick could not apply when the decedent is a
plaintiff.

¶26 Second, Judson cites one federal circuit court of appeals and one
federal district court as having criticized the reasoning in Rende, although he fails
to discuss the specific grounds of criticism. At least without more development,
this reference does not assist us in determining the state of the law in Wisconsin.

¶27 Third, Judson directs us to an affidavit by one of his own attorneys
that was submitted to the circuit court, averring that Judson attempted at relevant
times to resolve the personal representative issue, albeit without success. Judson
fails to explain how any attempts that he might have made to help facilitate the
appointment of a personal representative are relevant under the reasoning in Wick.
Under that reasoning, the 90-day clock could not begin to run until the suggestion
of death filed by Judson identified a proper party for substitution—regardless of

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No. 2022AP1562

any such attempts. Because we resolve this issue based on our application of
Wick to undisputed facts, we do not need to and do not reach Judson’s argument
that the circuit court committed clear error in finding that he caused or
significantly contributed to delay in the appointment of a personal representative.

II. SUFFICIENCY OF EVIDENCE TO SHOW UNDUE INFLUENCE

¶28 Judson argues that the siblings failed to prove undue influence by
clear, satisfactory, and convincing evidence. Judson fails to persuade us that the
circuit court made a clearly erroneous determination in concluding that he used
undue influence to obtain the property through the quit claim deeds.

¶29 The siblings were required to prove their undue influence claim by
clear and convincing evidence. See Johnson v. Merta, 95 Wis. 2d 141, 154, 289
N.W.2d 813 (1980). Because claims of undue influence are tried to a circuit court,
and the court’s ultimate determination on the undue influence issue is inextricably
intertwined with multiple factual findings, including credibility determinations, we
will not set aside the court’s determination unless it is clearly erroneous. See WIS.
STAT. § 805.17(2) (addressing fact-finding in a trial to the court); Odegard v.
Birkeland, 85 Wis. 2d 126, 134, 270 N.W.2d 386 (1978) (treating undue influence
as a question of fact, subject to what was then known as the “clear preponderance
of the evidence” test); Noll v. Dimiceli’s, Inc., 115 Wis. 2d 641, 643, 340 N.W.2d
575 (Ct. App. 1983) (explaining that the current “clearly erroneous” standard is
substantively the same as the previous “‘great weight and clear preponderance’” of
the evidence test).

¶30 Under this standard:

“The evidence supporting the findings of the trial
court need not in itself constitute the great weight or clear

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No. 2022AP1562

preponderance of the evidence; nor is reversal required if
there is evidence to support a contrary finding. Rather, to
command a reversal, such evidence in support of a contrary
finding must itself constitute the great weight and clear
preponderance of the evidence. In addition, when the trial
judge acts as the finder of fact, and where there is
conflicting testimony, the trial judge is the ultimate arbiter
of the credibility of the witnesses. When more than one
reasonable inference can be drawn from the credible
evidence, the reviewing court must accept the inference
drawn by the trier of fact.”

Noll, 115 Wis. 2d at 643-44 (quoting Cogswell v. Robertshaw Controls Co., 87
Wis. 2d 243, 249-50, 274 N.W.2d 647 (1979)).7

¶31 There are two methods by which undue influence may be shown in
Wisconsin, a four-element test and a two-element test.8 Glaeske v. Shaw, 2003
WI App 71, ¶27 & n.12, 261 Wis. 2d 549, 661 N.W.2d 420. Here the circuit court
and the parties have most extensively addressed the four-element test, which
requires proof of the following by clear, satisfactory, and convincing evidence:
(1) susceptibility—a person who is susceptible to being unduly influenced by the
alleged wrongdoer; (2) opportunity—the opportunity by the alleged wrongdoer to
exercise undue influence on the susceptible person; (3) disposition—a disposition
by the alleged wrongdoer to use such influence; and (4) coveted result—the

7
The siblings accurately quote the following statement of our supreme court in this
context: “Reversal is required only if the evidence in support of the contrary finding constitutes
the great weight and clear preponderance.” Odegard v. Birkeland, 85 Wis. 2d 126, 135, 270
N.W.2d 386 (1978). In reply, Judson asserts that this statement is not the law in Wisconsin, but
in doing so fails even to refer to Odegard, much less does he explain why Odegard does not
apply here. We remind Judson’s counsel that effective advocacy, as well as the duty of candor to
the court, require accurate descriptions of legal standards.
8
Undue influence cases often arise in the context of will contests, and not challenges to
conveyances such as the quit claim deeds here, but the analysis is the same. See First Nat’l Bank
of Appleton v. Nennig, 92 Wis. 2d 518, 536, 285 N.W.2d 614 (1979) (“Undue influence in the
execution of an inter vivos conveyance is proved in the same way that undue influence is proved
in the execution of a will.” (italics added)).

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No. 2022AP1562

achievement of the result coveted by the wrongdoer. See id., ¶27.9 Further, when
“clear, satisfactory[,] and convincing evidence proves the existence of any three of
these elements only slight evidence is necessary to prove the fourth.” Odegard, 85
Wis. 2d at 135. “[T]he nature and purpose of undue influence is such that it is
usually exercised under cover or in secret with little or no opportunity for the
presence of disinterested parties,” and therefore it is usually proved through
circumstantial evidence; it is because of these evidence-gathering challenges that
only slight evidence on a fourth element is necessary when three elements are
shown to the required level of proof. Freitag v. Solverson, 9 Wis. 2d 315, 317-18,
101 N.W.2d 108 (1960).

¶32 Before addressing the four elements and why we affirm on the
sufficiency issue, we make a point about Judson’s frequent failure on appeal to
apply the proper standard of review to his discussion of three of the elements—
susceptibility, disposition, and coveted result elements.10 It would unnecessarily
lengthen this opinion to mention each of the times that Judson ignores the proper
standard of review in addressing these three elements. In one especially striking
example, Judson asserts incorrectly that it would be “entirely appropriate for this
Court to evaluate whether the trial court properly weighed the testimony of …
disinterested third-party witnesses against” the “siblings’ own self-serving
testimony.” To the extent that we do not address specific assertions that Judson

9
The parties reference the two-element test in their appellate briefing, but the circuit
court did not apply that test. Further, Judson does not argue that reversal would be appropriate
even if the court properly applied the four-element test if it did not apply the two-element test, or
appropriate even if for some reason the court could not apply the two-element test. We do not
discuss the two-element test further.
10
In contrast, as discussed below, Judson’s treatment of the opportunity element is
primarily limited to a narrow legal argument.

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No. 2022AP1562

may intend to offer as arguments, it is because he fails to apply the standard of
review, which requires a showing of clear error by the circuit court and not merely
the identification of a reason or reasons that the court could have reasonably
reached a different determination.

Susceptibility of the parents to undue influence

¶33 The circuit court determined that the siblings showed the element of
susceptibility at the required level of proof based on the following findings: the
parents, “at the time of the transfers, were elderly, their physical health was
deteriorating, Dr. Pellett was unable to withstand pressure from the combined
forces of Mrs. Pellett and Judson, and both relied extensively upon Judson for
their transportation and care, particularly Mrs. Pellett.” The court relied in part on
testimony by Dr. Bennett Blum, a forensic and geriatric psychiatrist retained as an
expert by the siblings, to the effect that Joan had traditionally had “a strong
personality” but that she “became more and more subdued” with the progression
of her cancer, and that John “had a rather passive personality and did not like
confrontation.” The court stated that all of this evidence is relevant to
susceptibility under factors listed by our supreme court: “the testator’s age,
personality, physical and mental health[,] and ability to handle business affairs.”
See Odegard, 85 Wis. 2d at 140.

¶34 Judson argues that the element of susceptibility was not met because
there was evidence that the parents “were in control of their faculties, were clear
about their intent, were involved in the land transfers, and had the ability to care
for themselves independently of any care rendered by Jud[son].” But in making
this argument, Judson simply highlights evidence that the circuit court could have
given more weight to; this does not establish a clear error of any kind. In other

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words, it is not enough to show that the circuit court could have reached a different
conclusion. Judson does not come to grips with the requirement that he show
clear error.

¶35 To cite one major failing, as the siblings point out, Judson’s opening
brief does not even attempt to address Dr. Blum’s testimony, despite the fact that
his testimony informed the circuit court’s analysis on this element.

¶36 Judson’s reply to this particular argument regarding Dr. Blum has
two parts, both of which lack merit. First, Judson cites a Wisconsin Supreme
Court opinion for the unremarkable proposition that a factfinder may not treat an
expert’s conclusion on an issue as providing proof of the underlying facts
regarding that issue necessary to support the expert’s conclusion. See Dreher v.
Order of United Com. Travelers, 173 Wis. 173, 179, 180 N.W. 815 (1921)
(“[T]he opinion of the expert does not constitute proof of the existence of the facts
necessary to support the opinion.”). But Judson fails to explain why we should
conclude that the circuit court was obligated to entirely ignore Dr. Blum’s
testimony based on the premise that the evidence at trial was not sufficient to
justify his opinions.

¶37 Second, regarding the expert testimony, Judson cites a different
supreme court opinion for the equally unremarkable proposition that a factfinder
may credit the testimony of a non-expert over the testimony of an expert when
both testify on the same topic. See First Wisconsin Trust Co. v. Monsted, 233
Wis. 199, 208-09, 288 N.W. 278 (1940). Based on this proposition Judson argues
that he did not “need to produce expert testimony to refute Dr. Blum’s opinions.”
This is a non sequitur. The issue is not whether Judson could possibly have
prevailed despite the fact that he did not call an expert witness to attempt to rebut

17
No. 2022AP1562

Dr. Blum’s testimony. The issue is whether the circuit court clearly erred in
making its determinations, including by relying on Dr. Blum’s testimony.

¶38 Judson asserts that his “purported support of his mother’s position”
in favor of conveying the property “cannot be undue,” because “[a]ny influence”
Joan exercised “over her husband with respect to property they jointly owned is
entirely proper and not undue.” Judson fails to provide authority for his implied
argument that the circuit court would have clearly erred in addressing the
susceptibility element to the extent that the court took into account evidence
supporting the siblings’ theory that Judson’s method included the following
conduct: unduly influencing John by first unduly influencing Joan and then
supporting her efforts to convince John of the same course.

Judson’s opportunity to unduly influence the parents

¶39 The circuit court made the following findings and determined that
they meet the opportunity element at the required level of proof: “There is no
question that Judson had almost unlimited opportunities to unduly influence his
parents. He lived with them most of the time [both in Wisconsin and] during the
winters in Florida, so he had near-daily, on-going contact.”

¶40 Judson does not challenge the accuracy of these findings. Instead,
he primarily makes a narrow legal argument. The argument is that the circuit
court’s factual findings were not sufficient under a standard set by our supreme
court in Ball v. Boston, 153 Wis. 27, 141 N.W. 8 (1913). There, the court made
an observation based on what the court described as the “ordinary privacy” that
distinguishes “married life” from personal relationships formed outside a marriage
relationship. Id. at 47-48. The observation is that, for one spouse to be deemed to
have an opportunity to unduly influence the other,

18
No. 2022AP1562

[t]here must be pretty conclusive proof of active[,] efficient
efforts to improperly seclude the person, said to have been
defrauded by another, where the alleged wrongdoer and the
alleged victim are husband and wife, [in order] to give the
mere period and zone of isolation, even an atmosphere of
suspicion.

Id. We agree with the siblings that these statements in Ball are explicitly limited
to the special context of the marriage relationship and do not serve to show clear
error in this case by the circuit court.

¶41 Consistent with that view, and as the siblings point out, in cases
subsequent to Ball that are more analogous to this one than the marital relationship
at issue in Ball, our supreme court has determined that there was an opportunity
for a child to exercise undue influence over a parent. See Ramlow v. Wolf, 244
Wis. 115, 117, 121, 11 N.W.2d 497 (1943) (remanding for new trial at which heirs
of testator could pursue claim of undue influence by daughter of testator, who
lived with the testator for 19 years before her death; supreme court favorably cites
circuit court determination of opportunity to influence; no discussion of “efforts to
improperly seclude” spouse-testator as in Ball); Freitag, 9 Wis. 2d at 316-18
(affirming circuit court determination of undue influence by son over his mother
and stating in part: “There is no question that [the son] had the opportunity to
unduly influence his mother. She had lived with him … almost a year prior to her
death.”). It is true that, as Judson suggests, the discussion in both Ramlow and
Freitag regarding the opportunity element is limited. But those opinions
nevertheless serve to confirm our rejection of what appears to be Judson’s only
developed argument on this topic, which is to the effect that Ball stands for the
apparent proposition that in all undue influence cases involving familial
relationships, including those involving testator-child relationships, the
opportunity evidence must be, in the words of Ball, “pretty conclusive” in

19
No. 2022AP1562

showing “active[,] efficient efforts to improperly seclude” the testator-parent. See
Ball, 153 Wis. at 47-48.

¶42 Having addressed and rejected Judson’s reliance on Ball, we do not
readily discern what might remain of his argument on the opportunity element. To
the extent that he intends to argue that the circuit court should have credited
evidence showing that he did not prevent his siblings from having opportunities to
counteract his influence on his parents, he again fails to establish clear error by
showing that there was insufficient evidence on which the court could rely on in
making contrary findings.

Disposition of Judson to unduly influence the parents

¶43 Recognizing that “[d]isposition to influence implies a willingness to
do something wrong or unfair,” see First National Bank v. Nennig, 92 Wis. 2d
518, 537, 285 N.W.2d 614 (1979), the circuit made extensive findings and
observations on this element. The court concluded that the siblings had shown to
the required level of proof that “Judson had the requisite disposition to influence
the Parents to do something that was beneficial to him and unfair to his siblings.”
See Schaefer v. Ziebell, 207 Wis. 404, 415, 241 N.W. 382 (1932) (disposition to
unduly influence is a willingness to bring about a “result favorable to [oneself] and
unjust to another”). We now summarize the court’s discussion.

¶44 Judson “essentially lived off” of the parents and there was “no
evidence” that Judson “supported himself or contributed financially to the
household” when he lived with the parents in Wisconsin and Florida. In contrast,
the siblings live “independent[ly]” of parental support and “appear to have worked
hard to achieve success in their respective businesses.”

20
No. 2022AP1562

¶45 Judson attended estate planning seminars with the parents in Florida
and “was present for the reading of the estate plan documents prepared in 2014.”
Based on these facts, Judson “knew that any property put into the trust would be
divided equally” among the four surviving children.

¶46 Judson “was significantly involved in” the parents’ transfers of Vilas
County property to him through quit claim deeds in 2018. The 2018 transaction
was handled by Attorney Ralph Koopman, but “Judson attended every meeting
with the Parents and the attorney regarding this transfer and communicated
extensively by email with Koopman.” Koopman “did not meet with the Parents
alone to determine their competence or their wishes, although he knew the Parents
from prior representation and did not question their competence.” The court also
acknowledged, however, that Koopman testified to the personal opinion that the
2018 transfers were not “a result of Judson’s undue influence” and that John “was
very involved in the [2018] transaction[s], as well.”

¶47 As to the 2019 quit claim transfers, “Judson had even greater
involvement” than in 2018 because “there was not an attorney involved” in 2019,
and Judson did the drafting, even though the parents could have retained for this
transfer the same attorney they used to draft their 2014 estate planning documents.
“It is reasonable to conclude that Judson knew the Florida counsel likely would
require the Parents to submit to a competency assessment, as they did in 2014, and
[that] Mrs. Pellett may not have been deemed competent.”11 “This Court draws

11
In its decision, the circuit court stated that the siblings “appear[ed] to have …
abandoned at trial” the specific claim that Joan was not competent to make the transfers in 2018
and 2019, but issues surrounding her capacity and vulnerability at the time of each set of transfers
were addressed by the court in its findings.

21
No. 2022AP1562

the reasonable inference that Judson’s involvement in the [quit claim] transactions
was an effort to ensure [that] the remaining land owned by the Parents remained
out of the trust.”

¶48 After the 2018 and 2019 property transfers, John “asked Judson to
nullify” the transfers “on several occasions,” including in front of the siblings, and
Judson refused. John also testified in a deposition that he wanted Judson to return
the land. The parties disputed whether John was competent at the time of the
deposition. The court found that John “obviously was failing at the time of the
deposition,” but that “considering the emotional impact of a deposition for a
lawsuit he brought against his son,” the length of the deposition, and John’s age,
“it is quite possible [that John] simply was tired” when he testified in the
deposition.

¶49 “Judson clearly remained angry with his siblings and, once [this] suit
was filed, he began a campaign to build support for his actions,” by emailing
doctors, relatives, and friends with “disparaging” comments about his siblings.
The court said that it was a “reasonable inference” from the evidence that this was
a long-standing position of Judson’s, including one that he took with the parents:
“Judson similarly disparaged his siblings and portrayed himself as a victim to his
parents, at least since 2015.”

¶50 Turning from the circuit court’s determinations to Judson’s
argument on the disposition element, it is not entirely clear, but he appears to
contend that the circuit court clearly erred in making findings that, compared with
his siblings, he took special advantage of financial assistance from his parents.
However, after the siblings cite record evidence to support the proposition that
Judson took special advantage of financial assistance from the parents and note

22
No. 2022AP1562

that he fails to refute the court’s rationale on this issue, he fails in his reply brief to
provide citations to the record that clearly support his position.

¶51 In a similar vein, Judson suggests that the circuit court clearly erred
in finding that he was aware that the parents planned for their trust property to be
evenly divided among the surviving children, but after the siblings cite record
evidence to support this finding; in his reply he concedes the point through silence.
See United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶9, 304 Wis. 2d 750,
738 N.W.2d 578 (court may take failure to reply to respondent’s argument as a
concession).

¶52 Judson makes a series of inadequately supported and confusing
references to the circuit court’s findings on the following topic: that Judson
expressed anger toward his siblings at various times and that these expressions
supported the court’s conclusion that he had a disposition to treat them unfairly in
connection with the challenged property transfers. After the siblings explain why
Judson’s references are unavailing, Judson argues in reply that “[p]eople”
generally “get angry all the time; that does not mean they act on it” and that his
own expressions of anger toward his siblings could not support a determination
that he had “a willingness to do something wrong or unfair.” As to all related
points, we conclude that Judson either implicitly concedes them, see id., or fails to
develop an argument supported by pertinent record citations and legal authority.
If his argument is that the court’s findings clash with a common sense view of
human nature, we fail to see the validity of any such argument. Judson himself
states on appeal that the record shows that, before the quit claim transfers, he had
“lost respect for his siblings,” which is consistent with the circuit court’s
determination.

23
No. 2022AP1562

¶53 Judson relies on the proposition that “a long course of kindly
treatment of a parent by a child should” not, “in and of itself, be a basis for
supporting the charge of a wicked intent or disposition to exercise undue
influence.” See Schaefer, 207 Wis. at 415. But he fails to show that the circuit
court here operated under the incorrect understanding that evidence of kindly
treatment by Judson toward his parents in various ways necessarily equated to a
disposition to bring about a result favorable to himself and unjust to his siblings.

Coveted result

¶54 Regarding the fourth element, as the circuit court here recognized,
our supreme court has stated:

[T]he element of coveted result has been said to signify
more than simply a result favorable to the person who is
alleged to have exerted undue influence. The essential
question is whether that person has, for no apparent reason,
been favored in the will to the exclusion of a natural object
of the testator’s bounty.

Merta, 95 Wis. 2d at 159. Applying that standard, the circuit court determined to
the required level of proof that, not only did Judson obtain the property in dispute,
the siblings were the “natural objects” of the parents’ “bounty” and there was not a
reason for them to favor Judson with such a large transfer of property.

¶55 In support, the court made the following statements. It found that
the parents “gave generously” to any surviving child “who requested money or
land for a specific need, e.g., to build a house (Joanie and Jackson), to build a
motel to start a business (Jackson), to buy a farm (Judson).” In contrast, however,
“when making the decision to dispose of all their property on a global basis, the
Parents’ wish and plan was to divide the property equally among all the children.”
The court stated:

24
No. 2022AP1562

[T]here is no apparent reason Judson would have been
favored to the exclusion of the others with such a large gift
that consisted of all of the remaining land, including the
Vilas County home in which the family congregated over
the years. This gift combined with the other significant
gifts from the Parents would create a great inequity in the
distribution of assets among the children. This Court
concludes that such an inequity would be contrary to the
wishes of the Parents.

¶56 As with Judson’s treatment of the susceptibility and disposition
elements, his arguments regarding coveted results largely ignore the proper
standard of review and improperly invite us to apply our own assessments to
credibility and weight-of-the-evidence determinations that are left to the circuit
court in this context. That is, Judson for the most part challenges the circuit
court’s decision to discredit or place little weight on specific testimony favorable
to Judson, without explaining why the court could not do so without committing
clear error. See Noll, 115 Wis. 2d at 643-44 (“‘[W]hen the trial judge acts as the
finder of fact, and where there is conflicting testimony, the trial judge is the
ultimate arbiter of the credibility of the witnesses.’” (quoting Cogswell, 87 Wis. 2d
at 249-50)). In particular Judson emphasizes the following: his own testimony
that he cared for the parents and also that he was the only one of the surviving
children who loved the Vilas County property and wanted to preserve it; and the
testimony of John’s nephew, Art Sommers, that the parents transferred the
property to Judson because Judson “loves” it and was the only surviving child who
“would really live there, use it,” as opposed to seeing the property as just a source
of money. But conflicting testimony that could reasonably have been credited by
the circuit court included testimony that John demanded return of the property and
that John was not motivated in the way that Judson testified that John was
motivated—or at least not motivated to the degree that Judson has argued the
point.

25
No. 2022AP1562

¶57 Judson attempts to minimize the significance of John’s demand for
return of the property by citing the general rule that a gift of personal property that
is intended to be irrevocable when made and is fully executed by unconditional
delivery is a valid gift inter vivos, citing Guenther v. Guenther, 244 Wis. 386,
393, 12 N.W.2d 727 (1944) (“A gift once made [cannot] be revoked.”). But this is
off point. The issue here is whether Judson used undue influence to obtain the
inter vivos gifts, and the circuit court was free in its analysis to treat the fact of
John’s demand as highly probative evidence on issues that include the coveted
result element. The court was free, in other words, to reasonably infer that John
came to realize that (1) Judson had manipulated the parents into deviating from the
parents’ previous plan to equitably distribute the Vilas County land (which they
viewed as family land), and (2) that the parents had already done enough to help
Judson in particular through their various periodic gifts to him over the years.

¶58 Judson places great emphasis on testimony by Joseph
acknowledging that, before the parents conveyed the Vilas County property to
Judson alone, they had not made gifts of equal value to the surviving children but
instead gifted Judson a greater share than his siblings. However, the circuit court
accounted for that fact in a reasonable analysis, distinguishing between, on the one
hand, reasons that, in the words of the court, “Judson would have been favored to
the exclusion of the others with such a large gift that consisted of all of the
remaining land, including the Vilas County home in which the family congregated
over the years,” and, on the other hand, generous but smaller-in-scale, isolated
gifts to help Judson maintain a lifestyle and to have opportunities roughly
equivalent to his siblings over the years before the trust was distributed.

¶59 As one basis for this view, the court noted the evidence of a tradition
by the parents to favor Judson with gifts in an explanation that the court

26
No. 2022AP1562

considered persuasive based on all of the evidence, including Joseph’s testimony,
along the following lines. Joseph testified to the view that the extra gifts to Judson
demonstrated consistent equal treatment of the children in the sense that the
parents were trying to bring Judson up to match the financial status of his siblings,
but in a way that did not extend to the family land in Vilas County. The court
stated:

The Parents readily gave the individual children who asked
for assistance the assistance they requested, be it land or
money. A reasonable inference to be drawn is that Judson,
with his ready access to the Parents, requested the gifts he
received. It also is reasonable that the Parents did not want
him to have less than his financially successful siblings.

¶60 Based on all of the relevant evidence, the court found Judson’s
attempts to show that he had “a track record of business and work success” to be
unpersuasive, and instead the court found that the parents had consistently made
extra gifts to Judson because he was at least relatively financially challenged and
needed assistance to roughly match the financial status of his siblings and not for
any other reason. After the siblings point out Judson’s failure to engage with the
court’s specific reasoning on this issue, Judson replies by arguing that the
reasoning is “inconsistent with the court’s finding that [the parents] intended to
distribute their assets equally to all their children and that this amounted to a
‘coveted result.’” We fail to see how the reasoning is necessarily inconsistent or
unsupported by at least some of the relevant evidence. The court’s reasoning
demonstrates that it accounted for the parents’ separate goals to use inter vivos
gifts to support their children based on the needs that they expressed over time,
while holding the family land in Vilas County separate for even distribution under
the trust. In other words, the court credited the testimony that the parents sought
through periodic gifts over time to bring Judson’s financial status up to that of his

27
No. 2022AP1562

siblings, and also credited testimony that they were unduly influenced by him to
transfer to him alone multi-million dollar, improved property that they viewed as
family property.12

III. EVIDENTIARY ISSUES

¶61 Judson attempts to suggest that the circuit court clearly erred in
making two evidentiary decisions that improperly prevented him from presenting
rebuttal evidence regarding evidence that undermined his character. This involves
two incidents that we address in turn, one that Judson describes as barring him
from rebutting “assassination” of his character and the other concerning a mounted
deer head.

¶62 We affirm an evidentiary ruling if the circuit court examined the
relevant facts, applied a proper standard of law, used a demonstrated rational
process, and reached a conclusion that a reasonable judge could reach.
Martindale v. Ripp, 2001 WI 113, ¶28, 246 Wis. 2d 67, 629 N.W.2d 698. If the
circuit court fails to delineate the factors that influenced its decision, we
independently review the record to determine whether it provides an appropriate
basis for the circuit court’s decision. Id., ¶29.

“Character assassination”

¶63 We reject this argument for three reasons.

12
Judson refers to what he submits was a mistake by the circuit court in referring in its
written decision to the total value of the land conveyed in the quit claim deeds as being $5 million
when in fact the land was valued at $2.5 million. But Judson fails to develop an argument that
the circuit court’s undue influence analysis constituted clear error as a result of a
misunderstanding about the total value of the land being $5 million as opposed to $2.5 million
and we discuss this topic no further.

28
No. 2022AP1562

¶64 First, Judson provides inadequate citations to the record on this
issue. Critically, there are no citations supporting his essential premise that there
had been “character assassination” evidence offered against him at trial. See WIS.
STAT. RULE 809.19(1)(e) (briefs must contain “citations to the ... parts of the
record relied on.”); 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 that lack
proper citations to the record). Even after the siblings in their brief call attention
to this deficit in his opening brief, Judson fails in his reply brief to supply record
citations to assist this court in evaluating, based on a review of specific record
evidence, the precise nature of the alleged “character assassination.” The absence
of record citations is all the more glaring in light of several statements in the
record by the circuit court that it did not consider Judson to have been the subject
of negative attacks.

¶65 Second, Judson’s counsel contemporaneously gave up on the
argument in the circuit court. During the course of Judson’s direct examination by
his attorney, his attorney posed this question to him:

There was an implication, to me, at least, that the fact that
you haven’t been involved in operating a nursing home or
running a business or working for others, keeping your
nose to the grind stone, means there is something wrong
with you. Do you think that means there’s something
wrong with you?

The circuit court sustained an objection, and the siblings’ counsel said that the
question contained a “mischaracterization.” The following exchange then
occurred:

[Judson’s counsel]: Well, your Honor, the
suggestion that the siblings were not suggesting there was
something wrong with him when they said he hadn’t had a
job except for three months in his life, I think, is ignoring
reality. That’s exactly what they were suggesting.

29
No. 2022AP1562

[Siblings’ counsel]: Not a one of them said there
was something wrong with him.

THE COURT: They all were —

[Siblings’ counsel]: And that is one he specifically
put in his question.

THE COURT: I thought that they were pretty
accepting of it in the way they testified, other than … Josh
who said that [Judson] had only worked three months.
And —

[Judson’s counsel]: You take a more charitable
view of it than I do. That’s fine. I’ll move on, your Honor.
Thank you.

This reflects that counsel cut off the court’s attempt to address the issue more
fully, withdrew the question, and agreed to “move on.” A party cannot interrupt a
circuit court’s attempt to fully explain an evidentiary ruling and announce that the
party is going to “move on,” only to raise it on appeal as a basis for reversal.

¶66 Third, completely undeveloped in Judson’s briefing is any reason for
us to conclude that the circuit court’s ruling deprived it of relevant, probative
evidence because it did not allow Judson to answer whether Judson thought there
was “something wrong” with him, which the court sitting as a finder of fact could
rationally and reasonably deem to be a vague and unhelpful question. It was a
proper discretionary decision to allow counsel to “move on” to more productive
topics. Notably, the circuit court did not foreclose Judson’s counsel from
attempting to reframe the question or to supply the court with a more firm basis
that could support it. And beyond all that, Judson fails to support the suggestion
that it was prejudicial to his defense for the court to consider evidence that he was
generally less well-off financially than his siblings based on income that he
earned, independent of gifts from the parents.

30
No. 2022AP1562

Mounted deer heads

¶67 The topic here involves testimony about two mounted heads of deer
killed by hunters: one by John at a game farm and one by Judson in the wild. The
siblings elicited testimony from Joseph that, during John’s life, Judson replaced
John’s deer head with Judson’s deer head on a wall at the family “cabin” (a
residence with approximately 4,000 square feet) and that this was “demeaning” to
John. This was offered by the siblings, over Judson’s objection, to purportedly
demonstrate that Judson displayed controlling behavior over John during John’s
later years. Then, during Judson’s direct testimony, his attorney brought up the
topic and the following transpired.

¶68 Counsel had Judson establish that John’s deer head was the result of
hunting for captive deer on an Iowa game farm, not deer in the wild. Counsel
asked if John was enthusiastic about hunting at a game farm, and there was an
objection based on hearsay and the court overruled the objection. Judson testified
that John “put … off a number of times” the people who wanted him to hunt at a
game farm. Counsel then asked whether John “on other occasions, expressed
derision about people who hunted deer on game farms.” Judson answered, “Many
times.” Counsel then objected based on hearsay.13 The court explained that it was
sustaining the objection because the question was not directed at the “particular
incident” involving the two deer heads in this case, but instead had drifted into the
general topic of attitudes about game farm hunting. Consistent with that ruling,

13
The record reflects that the objection was late. We assume without deciding in favor
of Judson that, while the record is ambiguous on the point, the circuit court sitting as factfinder
considered Judson’s answer to be stricken from the record and did not consider the answer, even
though the objection was late.

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No. 2022AP1562

counsel narrowed his question: “Did your father tell you he wanted that deer head
mounted on the wall at his home?” Judson answered, “He did not.”14

¶69 Judson’s counsel then said the following:

Your Honor, I would just like to make a one-minute
offer of proof on this subject.

If permitted, the witness will testify that there was a
restaurant in Boulder Junction where the owner had
displayed a deer head that had been shot on a game farm
that, in [Judson’s] presence, his father made jokes about the
fact that someone would, in effect, show off a deer head
that was mounted on a deer farm. We’re only talking about
a minute or two of testimony here, your Honor, but I
understand. That’s my offer of proof.

¶70 In addressing Judson’s post-decision motion for reconsideration, the
circuit court said that “the deer head issue” “did not influence me.”

¶71 We affirm on this issue for two reasons. First, the circuit court’s
ruling excluding evidence about John’s general distain for game farming was a
reasonable application of WIS. STAT. § 904.03 (“Although relevant, evidence may
be excluded if its probative value is substantially outweighed by … considerations
of undue delay, waste of time, or needless presentation of cumulative evidence.”).
This was at best a collateral aspect of an already attenuated point involving the
relative value of mounted deer heads in the purported context of allegedly
controlling behavior by Judson. Judson had already established that John’s deer
head was merely a “game farm” trophy, reducing its significance in the context of

14
This testimony may be ambiguous, but the most reasonable interpretation in context is
that John approved Judson’s removal from the cabin wall of the head of John’s game farm-killed
deer and its replacement with the head of Judson’s wild-killed deer.

32
No. 2022AP1562

this deer-hunting-oriented family, and Judson was allowed to testify that John
approved Judson’s removal of John’s deer head from the cabin wall to replace it
with Judson’s deer head.

¶72 Second, even if the circuit court’s ruling were clear error, it would
have been harmless under the WIS. STAT. § 805.18(2) standard applied in a
separate context above. This is consistent with the circuit court’s comment in
addressing the motion for reconsideration that the deer head topic did not factor
into its decisions. To the extent that the topic might have risen to the level of
being marginally relevant, the circuit court had a reasonable opportunity to
consider the gist of Judson’s position on the deer head topic in proper context,
along with far more probative, relevant evidence.

CONCLUSION

¶73 For these reasons, we affirm the challenged orders invalidating the
quit claim deeds transferring property from the parents to Judson.

By the Court.—Orders affirmed.

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

33