Karen Zahran v. Christine Rademacher

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.
June 25, 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 Nos. 2023AP605 Cir. Ct. No. 2020CV46

2023AP1411

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

KAREN ZAHRAN AND ROBIN ZAHRAN,

PLAINTIFFS-APPELLANTS,

V.

CHRISTINE RADEMACHER, RUTH RADEMACHER AND GREG SEITZ,

DEFENDANTS-RESPONDENTS.

APPEALS from orders and a judgment of the circuit court for
Door County: TROY L. NIELSEN, Judge. Affirmed in part; reversed in part and
cause remanded with directions.

Before Stark, P.J., Hruz and Gill, 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).
Nos. 2023AP605
2023AP1411

¶1 PER CURIAM. Karen Zahran and Robin Zahran, pro se, appeal an
order granting Christine Rademacher, Ruth Rademacher, and Greg Seitz’s
(collectively, “Rademachers”) motion for summary judgment and from an order
granting the Rademachers’ motion for sanctions and attorney fees.1 Robin also
appeals a judgment requiring him to pay attorney fees to the Rademachers’ attorney.
We affirm the summary judgment and sanctions orders, but we reverse the judgment
requiring Robin to pay attorney fees because Robin was not given an opportunity to
review a detailed accounting of the attorney fees, which violated his due process
rights. We remand for the circuit court to provide Robin an opportunity to review,
and object to, the detailed accounting and requested fees.2

BACKGROUND

¶2 This lawsuit involves a real estate dispute between the parties which
arose after the Zahrans submitted an offer to purchase a piece of property from an
unrelated property owner. The offer was denied without a counteroffer. The
Zahrans believed the denial was racially motivated. The Zahrans allege that,
thereafter, they agreed to a plan with the Rademachers in which Christine would
first purchase the property and subsequently divide the water frontage “equally”
with the Zahrans.

¶3 Ruth eventually offered to buy the property from the property owner,
who accepted Ruth’s offer for an agreed-to amount and $15,000 in earnest money.
Only Ruth’s name was listed on the purchase documents exchanged between Ruth

1
Where appropriate, we refer to each individual using his or her first name, given the
shared surnames of the parties. In the sanctions context, we refer to Robin individually because
the order was against him only, not Karen.
2
We granted the Zahrans’ motion to consolidate appeal Nos. 2023AP605 and
2023AP1411.

2
Nos. 2023AP605
2023AP1411

and the property owner. Ruth and Christine later provided a copy of the purchase
agreement to the Zahrans for their review. The Zahrans wrote a check to Christine
for $7,500, representing one-half of the earnest money, and another check for
$100,000, representing one-half of a down payment for the property.

¶4 Following these events, issues arose and the property was never split
between the parties. The Zahrans filed the present lawsuit alleging eleven causes of
action. The Rademachers filed a motion for summary judgment, which the circuit
court granted.

¶5 The circuit court determined that any potential agreement between the
Rademachers and the Zahrans would have been a joint venture to purchase real
estate and, therefore, needed to be in writing pursuant to the statute of frauds.
See WIS. STAT. § 706.02 (2021-22).3 Because there was no written contract
between the parties, the court found that the Zahrans could not succeed on their
breach of joint enterprise, declaratory judgment, breach of contract, and promissory
estoppel claims. The court also concluded that the parties’ discussions regarding
purchasing the property could not be enforced in equity because the evidence
demonstrated that the Zahrans could not prove, by clear and satisfactory evidence,
the elements of an oral contract. See WIS. STAT. § 706.04.

¶6 The circuit court also granted the Rademachers’ motion for summary
judgment with respect to the Zahrans’ remaining seven claims. Regarding the
Zahrans’ “fraud in the inducement claim,” the court concluded that there was no
legally enforceable contract or agreement and that the Zahrans failed to allege “any
fraudulent behavior that would fall outside of the terms of the agreement/contract

3
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

3
Nos. 2023AP605
2023AP1411

the parties were working toward[].” The court granted the Rademachers summary
judgment on the Zahrans’ racketeering claim because it found that there were no
genuine issues of material fact and that the Zahrans were not entitled to relief as a
matter of law based on the facts. The court granted the Rademachers’ summary
judgment on the remaining claims—strict and negligent misrepresentation,
“conversion and civil theft,” and “breach of constructive trust and unjust
enrichment”—because the Zahrans failed to respond to the Rademachers’
arguments.4

¶7 The parties also filed competing motions for sanctions and attorney
fees. The circuit court granted the Rademachers’ motion and denied the Zahrans’
motion without a hearing after finding that Robin’s “behavior was egregious” for
several listed reasons. The court awarded the Rademachers attorney fees and
ordered the Rademachers’ attorney to file, under seal, a detailed accounting of the
work he performed on the case. The accounting was submitted under seal, and
without review or input by Robin, the court ordered him to pay the Rademachers’
attorney over $28,000. These appeals follow.

DISCUSSION

I. Motion for summary judgment

¶8 We independently review a grant of summary judgment, using the
same methodology as the circuit court. Dow Fam., LLC v. PHH Mortg. Corp.,
2013 WI App 114, ¶13, 350 Wis. 2d 411, 838 N.W.2d 119. Summary judgment
“shall be rendered if the pleadings, depositions, answers to interrogatories, and

4
The circuit court also granted the Rademachers’ motion for summary judgment with
respect to the Zahrans’ claim for intentional misrepresentation because the Zahrans failed to “assert
any facts to support this cause of action.” The Zahrans do not challenge the court’s decision with
respect to their intentional misrepresentation claim.

4
Nos. 2023AP605
2023AP1411

admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” WIS. STAT. § 802.08(2).

¶9 The Zahrans first contend that the circuit court “failed to dispose of
all the pending motions and issues” before it issued the summary judgment order
and that the court’s order is non-appealable because it constituted a nonfinal order.5

¶10 To preserve judicial resources, a circuit court is generally permitted
to address motions for summary judgment even when there are other pending
motions or issues before the court. See Jorgensen v. Water Works, Inc., 218
Wis. 2d 761, 772, 582 N.W.2d 98 (Ct. App. 1998). A court’s decision to address a
motion for summary judgment prior to addressing other motions or issues is
reviewed for an erroneous exercise of discretion. Id.

5
The pending motions and issues included the Rademachers’ counterclaim declaring
Ruth’s interest in the property, the Zahrans’ combined motions for judgment on the pleadings and
to compel discovery, the Zahrans’ multiple motions for “prosecution misconduct” and to strike the
Rademachers’ summary judgment brief, and, according to the Zahrans, the “status” of their
payments to the Rademachers.

Many of the Zahrans’ arguments on appeal are undeveloped and lack any legal support.
For example, the Zahrans argue that the circuit court’s summary judgment order was “begotten
through fraud” and issued in violation of their due process rights. However, the Zahrans do not
explain or develop these arguments further. Thus, to the extent we do not directly address some of
the Zahrans’ arguments, we deem them to be undeveloped and/or unsupported by legal authority.
See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we need not address
undeveloped arguments or arguments unsupported by references to legal authority).

On appeal, the Zahrans also moved to “strike” the Rademachers’ statement of the case.
The Zahrans argue that many of the Rademachers’ statements in that section are inaccurate or
argumentative. See Arents v. ANR Pipeline Co., 2005 WI App 61, ¶4 n.2, 281 Wis. 2d 173, 696
N.W.2d 194. After independently reviewing the Rademachers’ statement of the case and their
record citations, we disagree that any of the complained of statements are inaccurate or improperly
argumentative, and we reject the Zahrans’ motion to strike.

5
Nos. 2023AP605
2023AP1411

¶11 Here, the circuit court’s decision to first hear and decide the
Rademachers’ motion for summary judgment was reasonable because, as the court
stated to the parties, the lawsuit was “over-litigated” due to the Zahrans’ “efforts to
complicate a simple situation” and, importantly, the court’s decision rendered moot
the remaining pending motions and issues, including the Zahrans’ motions to strike
the Rademachers’ summary judgment briefing. Further, the Zahrans fail to explain
how or why additional discovery would have affected the motion for summary
judgment.

¶12 We also reject the Zahrans’ argument that the circuit court’s order
granting the motion for summary judgment was a nonfinal order. The court’s order
specifically stated that it was a final order for purposes of appeal, and, indeed, it
disposed of the entire matter in litigation. See Tyler v. RiverBank, 2007 WI 33,
¶26, 299 Wis. 2d 751, 728 N.W.2d 686 (concluding that a document constitutes the
final document for purposes of appeal when it has been entered by the circuit court,
disposes of the entire matter in litigation, and states on the face of the document that
it is the final document for purposes of appeal). Under these circumstances, the
court was not procedurally barred from granting the Rademachers’ motion for
summary judgment, and its order doing so is appealable.

¶13 The Zahrans next argue that the circuit court erred by granting the
Rademachers’ motion for summary judgment on their breach of joint enterprise,
declaratory judgment, breach of contract, and promissory estoppel claims because

6
Nos. 2023AP605
2023AP1411

the “unambiguous” oral land agreement is enforceable despite its failure to comply
with the statute of frauds.6

¶14 Subject to certain exclusions, statute of frauds applies to “every
transaction by which any interest in land is created, aliened, mortgaged, assigned or
may be otherwise affected in law or in equity.” WIS. STAT. § 706.001(1), (2). “[A]
joint adventure or a partnership to engage in the sale or purchase of real estate is
held to be a contract respecting an interest in lands, and void under the statute of
frauds, unless in writing, or unless sufficiently performed to take the same out of
the statute.” Schaefer v. Schaefer, 72 Wis. 2d 600, 607, 241 N.W.2d 607 (1976)
(citation omitted). Pursuant to WIS. STAT. § 706.02(1), transactions under
§ 706.001(1) “shall not be valid unless evidenced by a conveyance” that meets
specific requirements set out in the statute. Sec. 706.02(1). A “conveyance” is “a
written instrument, evidencing a transaction governed by this chapter, that satisfies
the requirements of [§] 706.02.” WIS. STAT. § 706.01(4).

¶15 The discussions between the parties in this case involved a joint
adventure or partnership to engage in the sale or purchase of real estate. In addition,
there is no dispute that the discussions were not memorialized in a written
instrument, much less one that satisfied the requirements of WIS. STAT. § 706.02.
Further, the Zahrans do not argue the applicability of any exclusion under WIS.
STAT. § 706.001(2).

6
Although the Zahrans challenge the circuit court’s decision with respect to their fraud in
the inducement claim, they do so by arguing only that whether there was an agreement between the
parties was a genuine issue of material fact precluding summary judgment. As we will explain, the
undisputed facts demonstrate that there was no legally enforceable agreement. Therefore, we
affirm the court’s decision to grant the Rademachers’ motion for summary judgment on this claim
without addressing whether an agreement was necessary to pursue the claim. See Service Emps.
Int’l Union, Loc. 1 v. Vos, 2020 WI 67, ¶24, 393 Wis. 2d 38, 946 N.W.2d 35 (stating that appellate
courts should not “step out of [a] neutral role to develop or construct arguments for parties”).

7
Nos. 2023AP605
2023AP1411

¶16 Rather, the Zahrans contend that WIS. STAT. § 706.04 applies, which
allows equitable enforcement of an agreement that is invalid under the statute of
frauds. See Spensely Feeds, Inc. v. Livingston Feed & Lumber, Inc., 128 Wis. 2d
279, 287, 381 N.W.2d 601 (Ct. App. 1985). An agreement may be enforceable
under § 706.04 if “all of the elements of the transaction are clearly and satisfactorily
proved” and one of three exceptions applies. Sec. 706.04(1)-(3). “The elements
that must be established to fulfill the first requirement correspond to the formal
requisites of a valid conveyance under [WIS. STAT. §] 706.02.” Nelson v.
Albrechtson, 93 Wis. 2d 552, 560-61, 287 N.W.2d 811 (1980). As is pertinent here,
§ 706.02(1) dictates that a conveyance must identify the land in which an interest is
created and identify the interest conveyed, including “any material term.”
Sec. 706.02(1)(b), (c).

¶17 According to the Zahrans, “there was an agreement in place” prior to
Ruth purchasing the property, but the Rademachers attempted to change that
agreement after the purchase. The circuit court concluded that WIS. STAT. § 706.04
did not apply because the “‘terms’ of the agreement were always in a constant state
of flux.” We agree for several reasons that the record demonstrates that the Zahrans
cannot prove by clear and satisfactory evidence that the elements of an oral contract
existed between the parties.

¶18 First, the discussions between the parties did not identify the land in
interest with “reasonable certainty.” See Anderson v. Quinn, 2007 WI 260, ¶29,
306 Wis. 2d 686, 743 N.W.2d 492 (citation omitted). Although a legal description
is not required to satisfy WIS. STAT. § 706.02(1)(b), the land must be described in
such a way that “by the aid of the facts and circumstances surrounding the parties
at the time the court can with reasonable certainty determine the land which is to be
conveyed.” Anderson, 306 Wis. 2d 686, ¶30 (citation omitted).

8
Nos. 2023AP605
2023AP1411

¶19 The uncontroverted evidence in the record establishes that, while
there were discussions to split the property “50/50,” with the Rademachers taking
the south half of the property and the Zahrans taking the north half of the property,
the property division itself was never defined, or agreed to, in specific terms during
any of the parties’ discussions prior to Ruth’s purchase. The parties did not have
the property—and their envisioned split of the property—mapped, surveyed, or
specifically described prior to Ruth’s purchase.

¶20 Significantly, Robin testified that the specifics of the property division
were not discussed until after Ruth purchased the property. As the parties
discovered after Ruth’s purchase, the property could not be split “50/50” as
originally envisioned because the cottage—which was initially planned to be on the
Rademachers’ side of the property—had a well and septic system that would have
been on the Zahrans’ side of the property if the property were divided as originally
envisioned. Following the purchase, Robin and Seitz met and discussed four
different options for dividing the property, all of which the Zahrans ultimately
rejected. Because the makeup of the property split was continuously changing, a
“disinterested person examining” the parties’ discussions “could not specify with
reasonable certainty what land was subject to” transfer to the Zahrans following
Ruth’s purchase of the property. See 303, LLC v. Born, 2012 WI App 115, ¶11,
344 Wis. 2d 364, 823 N.W.2d 269.

¶21 Second, the parties’ discussions did not conclude with an agreement
on the “material term[s]” of the transfer of the land interest to the Zahrans. See WIS.
STAT. § 706.02(1)(c). For example, one of the four options provided that the
Zahrans would grant the Rademachers easements for the septic system and a
driveway. Each option also addressed different ways the parties would pay for
demolishing a house on the property. At one point, the parties discussed sharing the

9
Nos. 2023AP605
2023AP1411

cost of demolishing the house, but at another point, they discussed that the Zahrans
would be exclusively financially liable for demolishing it.

¶22 Moreover, the parties each paid $100,000 for the down payment and
$7,500 for earnest money, and, at some point early in the discussions, agreed that
they would split the cost of the property purchase in half. However, the parties also
discussed appraising the value of the cottage and, according to Robin, crediting the
appraised value to the Zahrans’ purchase price. As the Rademachers argue on
appeal, the property’s purchase would not be split in half if the cottage’s value was
credited to the purchase price for the Zahrans. See Headstart Bldg., LLC v.
National Ctrs. for Learning Excellence, Inc., 2017 WI App 81, ¶17, 379 Wis. 2d
346, 905 N.W.2d 147 (“Price is an essential term for a contract for the sale of real
estate; a contract is void unless the price is sufficiently ‘certain or capable of being
ascertained from the agreement itself.’” (citation omitted)). Nothing in the record
demonstrates that the parties agreed on how to split the cost of the property before,
or after, Ruth’s purchase of the property.

¶23 Even if there was evidence in the record for the Zahrans to
demonstrate by clear and satisfactory evidence that the elements of an oral contract
existed between the parties, we agree with the Rademachers that neither WIS. STAT.
§ 706.04(2) nor (3) apply. Section 706.04(3) applies when the “party against whom
enforcement is sought is equitably estopped from asserting the deficiency.” Id. This
section closely resembles the doctrine of part performance and requires: “(1) action
or inaction which induces, (2) good faith reliance by another, (3) to that person’s
detriment.” Gillespie v. Dunlap, 125 Wis. 2d 461, 466, 373 N.W.2d 61 (Ct. App.
1985).

10
Nos. 2023AP605
2023AP1411

¶24 Here, although the Zahrans made partial payments—one-half of the
earnest money and one-half of the down payment—the Rademachers offered the
Zahrans four options either to divide the property in various ways or to return the
money to the Zahrans. Under these circumstances, the Zahrans cannot now claim
that their refusal to accept one of the four options—including a complete refund of
their payments—resulted in a detriment to them because the “detriment so incurred”
may “be effectively recovered” without enforcing the original discussions of
dividing the property. See WIS. STAT. § 706.04(3).

¶25 Moreover, the Rademachers did not accept the Zahrans’ payments
knowing that it would be detrimental to the Zahrans. See WIS. STAT. § 706.04(3)(b).
The four options were provided to the Zahrans after the parties discovered that the
property could not be divided as originally envisioned and after Ruth purchased the
property. Further, the Zahrans did not have possession of the property at any point.
See § 706.04(3)(a) (requiring the “grantee” to be “admitted into substantial
possession or use of the premises” or to have retained “such possession or use after
termination of a prior right thereto”); Schaefer, 72 Wis. 2d at 609.

¶26 We further conclude that the Rademachers were entitled to summary
judgment because WIS. STAT. § 706.04(2) does not apply to the facts of this case.7
Section 706.04(2) applies when the “party against whom enforcement is sought
would be unjustly enriched if enforcement of the transaction were denied.” Id.
Unjust enrichment occurs when one party confers a benefit upon another party, the
other party appreciates or knows of the benefit, and retention of the benefit without

7
We therefore affirm the circuit court’s summary judgment order with respect to the
Zahrans’ “breach of constructive trust and unjust enrichment” claim on statute of frauds grounds.
See U.S. Oil Co. v. Midwest Auto Care Servs., Inc., 150 Wis. 2d 80, 88, 440 N.W.2d 825 (Ct. App.
1989) (concluding that we may sustain a circuit court’s holding even if the theory or reasoning we
rely upon is different than that relied upon by the circuit court).

11
Nos. 2023AP605
2023AP1411

payment would be inequitable. Halverson v. River Falls Youth Hockey Ass’n, 226
Wis. 2d 105, 115, 593 N.W.2d 895 (Ct. App. 1999). “Under unjust enrichment, a
person is seeking the return of money actually expended; there must be a benefit
conferred upon the defendant by the plaintiff.” Jorgensen v. Ketter, 82 Wis. 2d 80,
85, 260 N.W.2d 665 (1978). A down payment for property can constitute valuable
consideration warranting the applicability of unjust enrichment. See id.

¶27 The Rademachers do not dispute that the Zahrans issued payments to
them for the purchase of the property. The record also conclusively demonstrates
that Ruth used that money as a down payment to purchase the property. Therefore,
the Rademachers expended the Zahrans’ money and received a benefit in doing so.
However, the Rademachers attempted to return an amount equivalent to the
Zahrans’ payments to the Zahrans following the failed negotiations to divide the
property. The Zahrans refused to accept the Rademachers’ offer, and that money
has been held in a trust account owned by the Rademachers’ attorney. Therefore,
the Rademachers have already attempted to return the money, and the Zahrans can
collect that money at any time. In all, there were no genuine issues as to any material
fact, and the Rademachers were entitled to judgment as a matter of law.

¶28 The circuit court also granted the Rademachers’ motion for summary
judgment with respect to the Zahrans’ remaining three claims—strict and negligent
misrepresentation and “conversion and civil theft”—because the Zahrans’ brief filed
in opposition to the Rademachers’ motion was “non-responsive” regarding those

12
Nos. 2023AP605
2023AP1411

claims. On appeal, the Zahrans contend that they did, however, respond to each of
the Rademachers’ arguments with respect to those claims.8

¶29 In the Rademachers’ motion for summary judgment, they argued that
they were entitled to summary judgment on the Zahrans’ “conversion and civil
theft” claim because, among other things, the economic loss doctrine barred that
claim. The Zahrans failed to respond to this argument and, instead, restated the
elements of the claim and cited case law relating to constructive trusts. Thus, we
agree with the circuit court that the Zahrans’ reply was non-responsive, and we
affirm the court’s order on this claim.

¶30 We agree with the Zahrans, however, that they did respond to the
Rademachers’ motion for summary judgment with respect to the common law
misrepresentation claims. Nevertheless, the Zahrans’ brief simply recited their
argument in support of their fraud in the inducement claim, which applies only to
intentional misrepresentation. See Kaloti Enters., Inc. v. Kellogg Sales Co., 2005
WI 111, ¶42, 283 Wis. 2d 555, 699 N.W.2d 205. “[T]he economic loss doctrine
bars misrepresentation claims based in negligence and strict responsibility.” Kaloti
Enters., 283 Wis. 2d 555, ¶30. Therefore, we affirm the circuit court’s grant of
summary judgment on the Zahrans’ common law misrepresentation claims.
See U.S. Oil Co. v. Midwest Auto Care Servs., Inc., 150 Wis. 2d 80, 88, 440
N.W.2d 825 (Ct. App. 1989).

8
The Zahrans also assert that the circuit court granted the Rademachers summary
judgment on the Zahrans’ racketeering claim because the court found that their response brief was
“non-responsive.” However, the court granted the Rademachers summary judgment on the
Zahrans’ racketeering claim because it found that there were no genuine issues of material fact and
that the Zahrans were not entitled to relief as a matter of law based on the facts. The Zahrans do
not challenge the court’s holding in that regard, and we will not address that claim further.
See Service Emps. Int’l Union, Loc. 1, 393 Wis. 2d 38, ¶24.

13
Nos. 2023AP605
2023AP1411

II. Sanctions motion

¶31 The Zahrans next argue that the circuit court erred by granting the
Rademachers’ motion for sanctions without first providing the Zahrans adequate
notice and an opportunity to respond. According to the Zahrans, the court violated
their due process rights as well as WIS. STAT. §§ 801.14(1), 801.15(4), and 802.05.

¶32 First, WIS. STAT. § 802.05—which relates to sanctions for
misrepresentations to a circuit court—was not implicated below because the
Rademachers filed a motion for sanctions pursuant to the circuit court’s inherent
authority to issue sanctions for “egregious” conduct. See Schultz v. Sykes, 2001 WI
App 255, ¶¶9, 12, 248 Wis. 2d 746, 638 N.W.2d 604. The court issued its sanctions
order pursuant to that authority. Accordingly, § 802.05, and the timing
requirements contained therein, did not apply to the Rademachers’ motion. See Ten
Mile Invs., LLC v. Sherman, 2007 WI App 253, ¶5, 306 Wis. 2d 799, 743 N.W.2d
442.

¶33 In addition, WIS. STAT. § 801.14 does not require a circuit court to
hold a hearing. Section 801.14(1) states that “every written motion” must “be
served upon each of the parties.” See also Holman v. Family Health Plan, 227
Wis. 2d 478, 490, 596 N.W.2d 358 (1999). The Zahrans do not contend that they
failed to receive notice of the motion for sanctions or the motion itself. To be sure,
an affidavit of mailing was submitted to the circuit court, which showed that the
notice of the motion, the motion itself, and the exhibits submitted with the motion
were mailed to the Zahrans on October 18, 2022. These same documents were also
delivered to the Zahrans through the court’s electronic filing system. The Zahrans’
motion for judgment on the pleadings and to compel discovery filed in

14
Nos. 2023AP605
2023AP1411

December 2022 referenced the Rademachers’ sanctions motion, thus evidencing
that they received notice of the Rademachers’ motion.

¶34 Under these circumstances, we further conclude that the circuit court
did not commit reversible error by failing to hold a hearing on the sanctions motion
pursuant to WIS. STAT. § 801.15(4). That statute states, in relevant part, that “[a]ll
written motions shall be heard on notice unless a statute or rule permits the motion
to be heard ex parte.” Both parties in this case filed competing motions for sanctions
pursuant to the court’s inherent authority to issue sanctions. The Zahrans filed their
motion on September 28, 2022, and the Rademachers filed their motion on October
17, 2022.

¶35 Importantly, the Zahrans’ motion for sanctions requested that the
circuit court hold an evidentiary hearing or, “in the alternative, issue an order”
granting the Zahrans’ motion without a hearing. Further, the Zahrans sent a letter
to the court on October 19, 2022, asking it to “grant judgment against the
[Rademachers]” because the Rademachers “failed to respond” to the Zahrans’
motion. Similarly, the Rademachers’ motion for sanctions requested an evidentiary
hearing but also moved the court for an order granting sanctions against the Zahrans.
At no point did either party request a hearing on the other party’s motion for
sanctions.

¶36 Thus, to the extent that WIS. STAT. § 801.15(4) required the circuit
court to hold an evidentiary hearing on a sanctions motion, the Zahrans—and the
Rademachers—expressly asked the court to issue a sanctions decision without first
holding a hearing, and then both parties failed to respond to the other’s motion.
See Atkinson v. Mentzel, 211 Wis. 2d 628, 642-43, 566 N.W.2d 158 (Ct. App.
1997) (“Generally, we will not review invited error.”).

15
Nos. 2023AP605
2023AP1411

¶37 For similar reasons, the Zahrans were not denied due process when
the circuit court granted the Rademachers’ sanctions motion and denied the
Zahrans’ sanctions motion without first holding a hearing. “The fundamental
requirement of procedural due process is the opportunity to be heard at a meaningful
time and in a meaningful manner.” American Eagle Ins. Co. v. Wisconsin Ins. Sec.
Fund, 2005 WI App 177, ¶44, 286 Wis. 2d 689, 704 N.W.2d 44 (citation omitted).

¶38 Over five months passed between the time the parties filed their
motions for sanctions and the time the circuit court issued its order addressing those
motions. During that time, neither party filed a response to the other’s motion for
sanctions, despite the fact that both had ample opportunity to file responses.
Accordingly, the court was free to base its decisions on the voluminous record
before it.

¶39 The Zahrans next take issue with the circuit court’s decision to issue
sanctions against Robin. A circuit court is “empowered to protect itself from those
egregious practices which threaten the dignity of the judicial process.” Schultz, 248
Wis. 2d 746, ¶12. “Wisconsin permits dismissal as a sanction for misconduct only
where the plaintiff has acted in bad faith or engaged in egregious acts of
misconduct.” Id., ¶14. Egregious misconduct has been defined as misconduct
which is extreme, substantial, and persistent, though not necessarily intentional.
See Dane Cnty. Dep’t of Hum. Servs. v. Mable K., 2013 WI 28, ¶70, 346 Wis. 2d
396, 828 N.W.2d 198. A circuit court has the inherent authority to sanction a party
for misconduct that occurs during litigation by ordering payment of the opposing
party’s attorney fees. See State ex rel. Godfrey & Kahn, S.C. v. Circuit Ct. for
Milwaukee Cnty., 2012 WI App 120, ¶43, 344 Wis. 2d 610, 823 N.W.2d 816.

16
Nos. 2023AP605
2023AP1411

¶40 “[W]e review a circuit court’s decision to impose sanctions, as well
as the particular sanction it chooses, for an erroneous exercise of discretion.”
Schultz, 248 Wis. 2d 746, ¶8. Under this standard, we will affirm the court’s
decision if it examined the relevant facts, applied a proper standard of law, and
reached a reasonable conclusion. Id.

¶41 Here, the circuit court issued monetary sanctions against Robin,
although the court also stated that it would have dismissed the Zahrans’ claims as a
sanction if it had not already granted the Rademachers’ motion for summary
judgment. Specifically the court found that Robin’s “behavior was egregious”
because:

1. The volume of filings and emails were completely over
the top and unwarranted in this relatively simple case.

2. The use of name calling is out of line.

3. Asserting [that the Rademachers’ attorney] was treating
[Robin] a particular way due to his ethnicity was
inappropriate, unjustified and down[]right disgusting.

The court stated that it had never experienced a case as “over litigated as much as
this case has been by the [Zahrans], in particular, [Robin].” It found that Robin’s
litigation strategy in the case was “victory by submission.” For those reasons, the
court granted the Rademachers’ motion for sanctions and ordered Robin to pay the
Rademachers’ attorney for his work on the case during the period in which the
Zahrans appeared pro se.

¶42 As the Rademachers argue, the Zahrans’ arguments against the circuit
court’s findings focus almost entirely on whether there was an agreement to
purchase and divide the property and whose fault it was that agreement never came

17
Nos. 2023AP605
2023AP1411

to fruition. However, these arguments do not explain how or why the court’s
findings regarding Robin’s conduct during this litigation were clearly erroneous.

¶43 Robin sent the Rademachers’ attorney more than 250 emails, many
unsolicited, throughout, and leading up to, the litigation, even after the attorney
repeatedly asked Robin to stop. In many of these emails, Robin attempted to
intimidate the Rademachers’ attorney, used abusive language, and baselessly
accused the Rademachers and their attorney of intentionally committing fraud and
perjury.9 For example, Robin stated in an email that he has “nothing against Jews,
many are and were associates in [b]usiness and partners,” “but obviously you may
be acting this way and going out of your way because I am of Palestinian de[s]cent.”
At least four of the emails included statements that the Rademachers and their
attorney would face legal consequences if the Rademachers’ attorney did not
convince his clients to accept the Zahrans’ offers to settle or withdraw various
motions.

¶44 Robin’s accusations of fraud and perjury continued in his circuit court
filings. The Zahrans filed multiple motions alleging that the Rademachers and their
attorney were engaging in fraud to “mislead the court.” The Zahrans also accused
the Rademachers’ attorney in a court filing of making “untruthful and deceptive
representations to the court and coaching witnesses at their depositions and
coordinating defendants’ answers to interrogatories and plaintiffs’ complaint.”

¶45 Given the above evidence, the Zahrans fail to explain how the circuit
court’s findings in support of its sanctions decision were clearly erroneous. Based

9
Importantly, both on appeal and in the circuit court, the Zahrans failed to provide
evidence that the Rademachers or their attorney engaged in fraud or perjury.

18
Nos. 2023AP605
2023AP1411

on the court’s findings, which are supported by the record, the court could
reasonably conclude that Robin persistently, and to a substantial degree, engaged in
misconduct.10

III. Attorney fees

¶46 Notwithstanding the above analysis, we agree with Robin that he was
denied due process when the circuit court issued a judgment requiring him to pay
attorney fees without first allowing him to review or challenge the amount and
accounting.

¶47 The circuit court awarded the Rademachers attorney fees and ordered
the Rademachers’ attorney to file, under seal, a detailed accounting of the work he
performed on the case. As stated earlier, the attorney’s accounting was submitted
under seal, and the court issued a judgment requiring Robin to pay the
Rademachers’ attorney over $28,000. See WIS. STAT. § 801.21. The court never
provided Robin with an opportunity to review and, if necessary, object to the
accounting prior to ordering Robin to pay the amount. Instead, the court conducted
an in camera review and determined whether the fees were appropriate without input
from the Zahrans.

¶48 Consequently, Robin never had an opportunity to be heard regarding
the reasonableness of the fees sought as a sanction. See American Eagle Ins. Co.,
286 Wis. 2d 689, ¶44; Jensen v. McPherson, 2004 WI App 145, ¶¶36-38, 275
Wis. 2d 604, 685 N.W.2d 603 (stating that an attorney fees award must be
reasonable). “Like other sanctions, attorney[] fees certainly should not be assessed

10
Robin does not take issue with the nature of the circuit court’s sanction—requiring him
to pay the Rademachers’ attorney fees. We therefore need not consider whether that was an
appropriate remedy.

19
Nos. 2023AP605
2023AP1411

lightly or without fair notice and an opportunity for a hearing on the record.”
Roadway Exp., Inc. v. Piper, 447 U.S. 752, 767 (1980). Thus, we reverse the circuit
court’s judgment awarding $28,000 to the Rademachers’ attorney, and we remand
with instructions to allow Robin to review the claimed fees and object if necessary
prior to awarding attorney fees.

¶49 No costs to either party.

By the Court.—Orders and judgment affirmed in part; reversed in part
and cause remanded with directions.

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

20