Scoll & Remeika, LLC v. Victoria Fueger

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.
January 24, 2025
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. 2023AP2001 Cir. Ct. No. 2018CV2142

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

SCOLL & REMEIKA, LLC,

PLAINTIFF-RESPONDENT,

V.

VICTORIA FUEGER,

DEFENDANT-APPELLANT,

AMERICAN FAMILY MUTUAL INSURANCE CO.,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County:

EVERETT D. MITCHELL, Judge. Dismissed.

Before Kloppenburg, P.J., Blanchard, and Graham, JJ.
No. 2023AP2001

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Victoria Fueger appeals an order dismissing the

complaint against her with prejudice. The dispositive issue is whether Fueger has

standing to appeal. We conclude that Fueger does not have standing. Therefore,

we dismiss the appeal.

¶2 The history of this case is long, but only the most recent events are

relevant to this appeal. Scoll & Remeika, LLC, is the plaintiff in a defamation

claim against Fueger. American Family Mutual Insurance Company provided

defense for Fueger as its insured and informed the circuit court that it had reached

a settlement with Scoll under which the case would be dismissed. Fueger objected

to dismissal, but the court dismissed the case with prejudice at the request of both

American Family and Scoll. Fueger appeals. Both American Family and Scoll

appear as respondents in the appeal.1

¶3 The respondents argue that Fueger lacks standing to appeal because

she is not aggrieved by the circuit court order. She is not aggrieved, they argue,

because the dismissal is with prejudice and does not require any payment or other

action by Fueger. Fueger argues that she is aggrieved because the settlement that

1
In this opinion we refer to the arguments as being made by “the respondents,” even
when an argument is made in only one of the respondent briefs.

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No. 2023AP2001

American Family and Scoll reached results in dismissal without a decision on the

merits in her favor.

¶4 As background, the circuit court held a hearing in September 2023.

Counsel for American Family informed the court that the insurer had settled the

case with Scoll, but that Fueger declined to sign a stipulation for dismissal.

Because Fueger refused to sign the stipulation, American Family and Scoll were

unable to file a stipulation signed by “all parties,” as required to effectuate a

dismissal without a court order. See WIS. STAT. § 805.04(1) (2021-22).2

American Family then asked the court to sign an order dismissing the case with

prejudice. Scoll’s counsel said: “The Plaintiff joins in American Family’s request

that the Court sign the proposed order that was filed by American Family on the

docket.” Fueger stated her objections to the settlement, and those were discussed

further by the parties and the court. The court then reached its decision:

The question whether or not … [Fueger] has to
agree to the stipulation as a prerequisite to the dismissal,
may be an interesting, novel question. But at least from my
perspective, I have been given no authority that allows for

2
WISCONSIN STAT. § 805.04(1) provides:

An action may be dismissed by the plaintiff without
order of court by serving and filing a notice of dismissal at any
time before service by an adverse party of responsive pleading or
motion or by the filing of a stipulation of dismissal signed by all
parties who have appeared in the action.

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

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No. 2023AP2001

me to [permit the] litigation at this point to continue if the
Plaintiff is asking for it to be dismissed.

So for that reason, I'm going to allow for the
agreement to move forward to allow for dismissal with
prejudice [of] this case so that this litigation can come to an
end, at least at this point.

¶5 The circuit court subsequently entered an order accepting the

voluntary dismissal at Scoll’s request under WIS. STAT. § 805.04(2).3 The order

stated:

The above-captioned matter having come before the
Court on the 8th day of September 2023, to address the
Intervenor Defendant American Family Mutual Insurance
Company’s request that the Court enter an order dismissing
the case based upon a settlement agreement that was
reached between American Family Mutual Insurance
Company and the plaintiff Scoll & Remeika, LLC, and the
Court having reviewed all of the pleadings on file and
having heard the statements from the parties, now,
therefore,

IT IS ORDERED that this case is hereby dismissed,
with prejudice, and without costs to any party.

¶6 The parties do not appear to dispute the law related to appellate

standing. A person may not appeal from a judgment or order unless the person is

aggrieved by it, and a person is aggrieved if the judgment bears directly and

3
WISCONSIN STAT. § 805.04(2) provides:

Except as provided in sub. (1) [for dismissal on
stipulation by all parties], an action shall not be dismissed at the
plaintiff’s instance save upon order of court and upon such terms
and conditions as the court deems proper. Unless otherwise
specified in the order, a dismissal under this subsection is not on
the merits.

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No. 2023AP2001

injuriously upon the person’s interests. Ford Motor Credit Co. v. Mills, 142

Wis. 2d 215, 217, 418 N.W.2d 14 (Ct. App. 1987).

¶7 Here, the terms of the dismissal order could not be more favorable to

Fueger, because it was an unconditional dismissal with prejudice. Therefore, she

is not aggrieved by that order and may not appeal.

¶8 Fueger appears to recognize that she is not aggrieved by the terms of

the dismissal order itself. Instead, she argues that she is aggrieved by the effects

of the dismissal order. Specifically, Fueger argues that she has standing based on

her intent to make a future claim against plaintiff Scoll for malicious prosecution

based on this case. As part of such a claim, Fueger would be required to show that

this case was terminated in her favor. See Monroe v. Chase, 2021 WI 66, ¶¶11,

20-22, 397 Wis. 2d 805, 961 N.W.2d 50 (describing the termination element of

such a claim). Fueger argues that, because American Family’s settlement included

payment to Scoll, she will be unable to show that the case was terminated in her

favor.

¶9 However, as we explain below, whether or not Fueger may be

aggrieved in some sense by the settlement agreement, the settlement agreement is

not an appealable decision. The circuit court did not rule on the validity of the

agreement, the dismissal order is not conditioned on the validity of the agreement,

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No. 2023AP2001

and no question about the validity of the agreement itself is before us in an appeal

from the dismissal order.

¶10 We first address two arguments by the respondents that we do not

regard as a basis to conclude that Fueger lacks standing. First, they assert that she

does not have a legally recognizable interest in blocking the settlement and forcing

American Family to continue litigation, because her American Family policy gives

the right to settle to the insurer. However, this would potentially be a question to

be decided in an appeal that reviews the merits of Fueger’s objections to the

settlement. The respondents are essentially arguing that Fueger lacks standing to

appeal because she would lose on the merits of the appeal. They cite no law to

support such a broad interpretation of standing, and we are not aware of any.

Moreover, as explained below, this appeal does not involve a challenge to the

settlement.

¶11 Second, the respondents assert that continued litigation of this

defamation claim would not provide Fueger with a successful malicious

prosecution claim, even if the defamation settlement does not occur and she

ultimately prevails on the defamation claim. They argue that her malicious

prosecution claim would still fail due to her inability to satisfy another element

necessary for such a claim. However, we do not believe that a standing analysis in

this appeal can properly become a vehicle for litigating the merits of a future

malicious prosecution claim.

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No. 2023AP2001

¶12 We focus instead on the decision that was actually made by the

circuit court. The dismissal order itself is entirely favorable to Fueger. The order

dismisses the claim with prejudice and does not require her to take any action or

impose any legal obligation on her. The dismissal is also unconditional. The

order refers to the settlement agreement, but the order does not require the parties

to comply with the agreement or otherwise make the voluntary dismissal by Scoll

contingent on that agreement. Although the parties made assertions in the circuit

court and in filings about the content of the agreement, the agreement itself does

not appear to have been placed in the record.

¶13 Because the dismissal order is, on its face, entirely favorable to

Fueger, there is no basis for us to conclude that this order, by itself, would impair

any future malicious prosecution claim by Fueger. In other words, Fueger is not

aggrieved by the dismissal order’s effect on such a future claim.

¶14 Instead, any such impairment would flow from the terms of the

settlement agreement. But the current appeal cannot raise any issue about the

validity of that agreement. The settlement agreement itself is not an appealable

decision, because only judgments and orders may be appealed. See WIS. STAT.

§ 808.03(1). Furthermore, the circuit court did not rule on any question about the

agreement. Instead, the court’s focus, as quoted above, was entirely on whether

there was a legal basis to stop Scoll from dismissing its own suit with prejudice.

The court concluded that Fueger had given no such reason, but this decision does

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No. 2023AP2001

not imply a conclusion about the validity of the settlement agreement. It does not

because, although Fueger stated her objections to the agreement to the court, the

court’s ruling against her was not based on a rejection of the substance of her

arguments. Instead, the ruling was, in practical effect, a determination that her

arguments about the agreement were not legally relevant to whether Scoll would

be permitted to dismiss its own suit with prejudice. Her arguments were not

relevant because, even if the settlement agreement were not valid, that invalidity

had still not been shown to be a legal basis to prevent Scoll from voluntarily

dismissing its own case, which a plaintiff may choose to do even in the absence of

a settlement.

¶15 In short, we conclude that Fueger is not aggrieved by the dismissal

order because its terms are entirely favorable to her. Whether or not Fueger may

be aggrieved by the settlement agreement, the agreement itself cannot be appealed,

and no question about that agreement has been decided by the circuit court, and

therefore no such question is before us in this appeal.

¶16 Fueger also argues that she is aggrieved because she has invested

time in this case and has paid insurance premiums that are not being properly used

by American Family to clear her name, and because dismissal of the case creates

the “aesthetic” appearance that she defamed Scoll. However, none of these

qualify as “direct” injuries for the purpose of establishing that Fueger is aggrieved

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No. 2023AP2001

by the order dismissing Scoll’s case against her. See Ford Motor Credit, 142

Wis. 2d at 217.

By the Court.—Appeal dismissed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.

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