Jessica Mabin v. Talgat Konkargaev

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.
September 25, 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. 2024AP162 Cir. Ct. No. 2018CV2424

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

JESSICA MABIN,

PLAINTIFF-APPELLANT,

V.

TALGAT KONKARGAEV,

DEFENDANT-RESPONDENT.

APPEAL from a judgment of the circuit court for Dane County:
STEPHEN E. EHLKE, Judge. Affirmed.

Before Graham, P.J., Blanchard, and Nashold, 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. 2024AP162

¶1 PER CURIAM. Jessica Mabin appeals a judgment entered in this
personal injury case. On appeal, Mabin challenges that portion of the circuit
court’s ruling that denied her motion for leave to amend the complaint to add
Bright Trucking Company as a defendant, and denied her motion for a
continuance of the jury trial. No respondent’s brief was filed. For the reasons
discussed below, we affirm the judgment of the circuit court.

¶2 This is the second appeal by Mabin stemming from a motor vehicle
accident that occurred in 2015, in which Mabin was rear-ended by a semi-truck,
causing her injuries. The driver of the truck identified himself as Talgat
Konkargaev. The truck was owned by CAS Transport, Inc. (CAS) and was being
operated by Bright Trucking Company.

¶3 In Mabin’s first appeal, we affirmed circuit court rulings that denied
Mabin’s request for a determination of uninsured motorist coverage, denied her
prior motions for leave to amend her complaint, and dismissed her action against
her insurer, Artisan and Truckers Casualty Company. See Mabin v. Konkargaev,
No. 2021AP188, unpublished slip op., ¶46 (WI App Mar. 24, 2022). Details of
the factual and procedural history of the case were included in the opinion issued
in Mabin’s first appeal, and we do not repeat those background details here except
as necessary to address the issues raised in the appellant’s briefing.

¶4 Mabin presents three main arguments in this appeal, and we address
them in a different order than they are presented in the appellant’s brief. We first
address the argument that the circuit court erroneously exercised its discretion by
“affirmatively alleging” a statute of limitations defense on behalf of Bright
Trucking. Mabin argues that the court alleged a statute of limitations defense on
behalf of Bright Trucking, and that by doing so, the circuit court judge violated

2
No. 2024AP162

WIS. STAT. § 757.22 (2023-24), which prohibits a judge from acting as an attorney
or counsel.1

¶5 We disagree with Mabin’s assertion that the circuit court
“affirmatively alleged” a statute of limitations defense for Bright Trucking, and we
reject Mabin’s argument that the judge acted in any manner as counsel for Bright
Trucking. Rather, as we now explain, we are satisfied that the court took the
statute of limitations into account as part of the proper exercise of its discretion
when considering Mabin’s motion to file a third amended complaint.

¶6 Whether to allow an amendment to a complaint when, as here, the
party does not have a right to amend is a matter within the discretion of the circuit
court. Butcher v. Ameritech Corp., 2007 WI App 5, ¶34, 298 Wis. 2d 468, 727
N.W.2d 546 (2006). “Among appropriate factors to consider … is whether the
amended complaint would withstand a motion to dismiss, and a circuit court may
properly deny the motion if it would not.” Id., ¶36. At the November 16, 2023
hearing, the court reasonably took into account the likelihood that, if Mabin were
permitted to amend the complaint to add Bright Trucking as a defendant, raising a
statute of limitations defense “would probably be the very first thing” Bright
Trucking would do. The court noted that the accident in this case took place in
September 2015 and that, at the time of the motion hearing in November 2023, the
three-year statute of limitations had long since run.

¶7 The circuit court also took notice of its prior oral ruling from
February 23, 2021, in which the court denied a prior motion by Mabin to amend

1
All references to the Wisconsin Statutes are to the 2023-24 version.

3
No. 2024AP162

the complaint to plead joint and several liability against entities that included
Bright Trucking. In the February 23, 2021 order, the court had reasoned that
Mabin should have been on notice of Bright Trucking’s potential liability early on
in this litigation. Specifically, the court had explained, Bright Trucking’s
“information was on the magnetic tag … that was affixed to the truck” and was
visible in “police photos taken on the day of the accident.” Therefore, Mabin
could not reasonably claim that she was unaware of the possibility of making
Bright Trucking a defendant until she learned of the existence and potential
relevance of Bright Trucking through discovery.

¶8 Similarly, this court stated in resolving Mabin’s first appeal that
photographs taken as part of the investigation of the accident scene “revealed that
two signs were attached to the driver-side door of the semi-truck tractor:
‘LEASED TO NOVA LINES’ and ‘BRIGHT TRUCKING US DOT #2783363
WOODRIDGE, IL.’” Mabin, No. 2021AP188, ¶19. Given that a sign affixed to
the semi-truck involved in the accident bore the name of Bright Trucking, and that
pictures from the investigation of the accident scene clearly show the sign, Mabin
should have been aware from the outset that Bright Trucking could be a possible
defendant.

¶9 In light of the above facts, we conclude that the circuit court did not
erroneously exercise its discretion when it denied Mabin’s motion to amend the
complaint a third time.

¶10 In reaching this conclusion, we also reject a second argument that
Mabin makes: that an amendment to the complaint to add Bright Trucking should
have been permitted pursuant to WIS. STAT. § 802.09(1), which provides that leave
to amend a pleading “shall be freely given at any stage of the action when justice

4
No. 2024AP162

so requires.” The record reflects that the circuit court considered the pleading
standard in § 802.09 and reasonably concluded that the facts and the law weighed
against permitting another amendment. The court stated that, “even viewing the
request to amend a complaint, you know, broadly or, you know, implying a liberal
policy that’s embodied in amendment of pleadings, it just doesn’t apply here
where the statute of limitations has run.”

¶11 Finally, we turn to Mabin’s argument that Bright Trucking should be
equitably estopped from asserting a statute of limitations defense because
Konkargaev, Bright Trucking, or others engaged in fraud. Mabin failed to
adequately develop the fraud argument in the circuit court, and also fails to
develop the argument on appeal. The appellant fails to develop coherent
arguments that apply relevant legal authority to the facts of record, and instead
relies largely upon conclusory assertions. “A party must do more than simply toss
a bunch of concepts into the air with the hope that either the trial court or the
opposing party will arrange them into viable and fact-supported legal theories.”
State v. Jackson, 229 Wis. 2d 328, 337, 600 N.W.2d 39 (Ct. App. 1999).
Consequently, this court need not consider arguments that are unsupported by
adequate factual and legal citations or are otherwise undeveloped. See Grothe v.
Valley Coatings, Inc., 2000 WI App 240, ¶6, 239 Wis. 2d 406, 620 N.W.2d 463
(lack of record citations), abrogated on other grounds by Wiley v. M.M.N. Laufer
Family Ltd. P’ship, 2011 WI App 158, 338 Wis. 2d 178, 807 N.W.2d 236; State
v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (undeveloped
legal arguments). Mabin fails to develop her fraud argument legally or to support
it factually, and we reject the argument on that basis.

By the Court.—Judgment affirmed.

5
No. 2024AP162

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

6