J. Steven Tikalsky v. Dean P. Laing

OFFICE OF THE CLERK
WISCONSIN COURT OF APPEALS
110 EAST MAIN STREET, SUITE 215
P.O. BOX 1688
MADISON, WISCONSIN 53701-1688
Telephone (608) 266-1880
TTY: (800) 947-3529
Facsimile (608) 267-0640
Web Site: www.wicourts.gov
DISTRICT II
October 14, 2026
To:
Hon. Michael P. Maxwell
Circuit Court Judge
Electronic Notice
Monica Paz
Clerk of Circuit Court
Waukesha County Courthouse
Electronic Notice
Dean P. Laing
Electronic Notice
Christa D. Wittenberg
Electronic Notice
Eleanor S. Tikalsky
Electronic Notice
J. Steven Tikalsky
Electronic Notice
You are hereby notified that the Court has entered the following opinion and order:
2025AP1240
2025AP1669
J. Steven Tikalsky v. Dean P. Laing (L.C. #2025CV67)
J. Steven Tikalsky v. Dean P. Laing (L.C. #2025CV67)
Before Gundrum, LoCoco, and Gill, JJ.
Summary disposition orders 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).
In these consolidated appeals, J. Steven Tikalsky (“Steven”) and his wife, Eleanor S.
Tikalsky (“Eleanor”), appeal a circuit court order dismissing their complaint against Steven’s
siblings (Susan M. Tikalsky, James Allen Tikalsky, and Terry Ann Stevens), a trust created by
Steven’s late parents, the Amended and Restated Donald J. and Betty Lou Tikalsky Trust, and
the siblings’ and trust’s attorney, Dean P. Laing. Steven and Eleanor also appeal an order
concluding that their complaint was frivolous and awarding attorney fees as a sanction.

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Based upon our review of the briefs and record, we conclude at conference that this case
is appropriate for summary disposition. See WIS. STAT. RULE 809.21 (2023-24).1 We affirm the
circuit court order dismissing Steven and Eleanor’s complaint but reverse the order concluding
the complaint was frivolous and awarding attorney fees as a sanction. We remand the matter for
further proceedings consistent with this opinion.
We begin by putting the present dispute into context. Steven’s parents explicitly
disinherited him from their estate plans. In 2015, after his parents’ deaths, Steven brought a
nine-count complaint against his three siblings and his late-parents’ trust (collectively, the Trust).
In 2016, when the Trust moved for summary judgment, Steven voluntarily dismissed six causes
of action. The circuit court then granted the Trust’s motion for summary judgment on Steven’s
claims for undue influence and constructive trust. It denied the Trust’s summary judgment
motion on Steven’s claim for intentional interference with expected inheritance, leaving it as the
sole remaining cause of action.
The circuit court’s order had the effect of creating a final order as to one sibling, Terry,
and Steven appealed the court’s grant of summary judgment on Steven’s claim for a constructive
trust as to Terry. While Steven’s appeal was pending, the parties and Steven engaged in
extensive discovery and motion practice on Steven’s intentional interference claim and a trial
was scheduled for August 2018. When the supreme court accepted review of Steven’s
constructive trust appeal, it stayed the trial. In Tikalsky v. Friedman, 2019 WI 56, 386 Wis. 2d
757, 928 N.W.2d 502, the court held “a constructive trust is not a cause of action and … Steven’s
1 All references to the Wisconsin Statutes are to the 2023-24 version.

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Complaint does not state a claim for relief against Terry. Therefore, the circuit court did not err
when it dismissed her from the case with prejudice.” See id., ¶44.
Upon remittitur, the circuit court scheduled a three-week trial for February 2020 on the
intentional interference claim. In December 2019, Steven voluntarily moved to dismiss his
intentional interference claim. The Trust did not contest the voluntary dismissal, but it moved
for attorney fees incurred in defending Steven’s action.
As relevant, Steven opposed the Trust’s request for attorney fees on the basis of unclean
hands. Generally, Steven advised the circuit court that, in 2017, after the court granted summary
judgment in favor of the Trust, it learned that there were material misrepresentations in the
Trust’s summary judgment filings. The Trust contested Steven’s allegations. Ultimately, the
court granted the voluntary dismissal and awarded the Trust attorney fees incurred in connection
with various motions during litigation. It rejected Steven’s unclean hands defense on the basis
that Steven had forfeited that argument by bringing the allegedly false statements to the court’s
attention in such a tardy fashion. Steven appealed.
In Tikalsky v. Tikalsky, No. 2020AP1345, unpublished slip. op., ¶¶2-3 (WI App Dec. 6,
2023), we affirmed both the circuit court’s grant of summary judgment on the undue influence
claim and the court’s award of attorney fees. Regarding the undue influence claim, we
concluded:
the evidence Steven submitted in response to the Trust’s summary
judgment motion does not come close to creating a genuine issue
of material fact regarding undue influence. Steven has failed to
adequately substantiate his undue influence claims under either the
four-element or two-element test. On these facts, no reasonable
fact finder could conclude that the wills and trust documents were
procured by undue influence.

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Id., ¶40. We also affirmed the circuit court’s determination that six of Steven’s original causes
of action were frivolous, which he dismissed when the Trust moved for summary judgment, that
two motions were brought for purposes of delay, and that Steven had forfeited any unclean hands
defense. Id., ¶3.
As to Steven’s unclean hands defense, we agreed with the circuit court that Steven had
forfeited any unclean hands argument by failing to raise the issue in a timely matter. Id., ¶62.
We explicitly rejected Steven’s argument that his earliest opportunity to raise his defense was at
the conclusion of the lawsuit. Id. We stated, “To the contrary, Steven had ample opportunity to
raise the issue of the alleged false testimony during the multi-year pendency of the litigation,
including by bringing a WIS. STAT. § 806.07(1)(c) motion alleging fraud.” Tikalsky,
No. 2020AP1345, ¶62. We also observed that the one-year time limitation in § 806.07(2) had
not run at the time Steven discovered the purported misrepresentations. Tikalsky, No.
2020AP1345, ¶62 n.24. We explained that, “in any event, the time limitation set forth in WIS.
STAT. § 806.07(2) would not have precluded Steven from filing an independent action
challenging the [summary judgment] order on equitable grounds. See generally Walker v.
Tobin, 209 Wis. 2d 72, 568 N.W.2d 303 (Ct. App. 1997).” Tikalsky, No. 2020AP1345, ¶62
n.24.
Finally, because we affirmed the circuit court’s determination of frivolousness, we
remanded the case to the circuit court to award the Trust attorney fees in connection with
defending the frivolousness determination on appeal. Id., ¶¶66-67. Steven did not petition the
supreme court to review our decision.

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Instead, in January 2025, Steven and his wife, Eleanor, filed the underlying action—a
232-page complaint against the Trust and the Trust’s attorney (now, collectively the Trust).
They alleged that, based on our footnote in Tikalsky, No. 2020AP1345, ¶62 n.24 (where we
advised Steven that he had had ample opportunities to raise the issue of the alleged false
testimony during the multi-year pendency of the litigation, including by bringing an independent
action on equitable grounds), they were now bringing an independent action to challenge the
summary judgment order on equitable grounds.
Broadly, Steven and Eleanor’s new complaint refuted arguments and affidavits that were
filed by the Trust in support of its summary judgment motion from the previous lawsuit. Steven
and Eleanor alleged that because of the Trust’s filings in the previous case, they were entitled to
equitable relief from the circuit court’s grant of summary judgment on Steven’s undue influence
claim, and equitable restitution from Steven’s siblings based on their wrongful conduct in the
form of Steven’s expected one-quarter share of inheritance. Steven and Eleanor also argued the
Trust abused the process by making various statements during the course of the prior litigation in
relation to the Trust’s summary judgment motion.
In lieu of an answer, the Trust moved to dismiss Steven and Eleanor’s complaint for a
variety of independent reasons. The Trust also moved for a determination that the complaint was
frivolous and sought attorney fees as a sanction. Following briefing and argument, the circuit
court dismissed the complaint for some of the reasons offered by the Trust, including application
of the litigation privilege, claim preclusion, laches, and statute of limitations.
The circuit court also expressed concern that Steven and Eleanor’s complaint was
frivolous. It advised the parties that it would require briefing as to whether the complaint was

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frivolous and whether it should grant sanctions against Steven and Eleanor in the form of
attorney fees. Following briefing and argument, the court concluded Steven and Eleanor’s
complaint was entirely frivolous, and it awarded attorney fees as a sanction for the frivolous
filing. Steven and Eleanor appeal.
We first consider Steven and Eleanor’s equitable claims for restitution and for relief from
the circuit court’s summary judgment order from the previous litigation. Broadly, these claims
are based on Steven and Eleanor’s assertion that the Trust’s summary judgment materials from
the previous lawsuit contained misrepresentations and Steven and Eleanor did not learn of these
misrepresentations until 2017, after the court had granted summary judgment. The court
dismissed Steven and Eleanor’s equitable claims based, in part, on the doctrine of laches.
“Laches considers whether a party has brought an equitable claim within a reasonable
time.” Kaiser v. Townline CTH-N LLC, 2024 WI App 59, ¶49, 414 Wis. 2d 50, 13 N.W.3d 251.
“It is based on the ‘notion that equity aids the vigilant, and not those who sleep on their rights to
the detriment of the opposing party.’” Id., ¶50 (citation omitted). “The party raising laches must
prove three elements: ‘(1) a party unreasonably delays in bringing a claim; (2) a second party
lacks knowledge that the first party would raise that claim; and (3) the second party is prejudiced
by the delay.’” Id. (citation omitted). If all the elements are proven, application of laches is left
to the discretion of the circuit court. Id.
Here, we agree with the circuit court that laches bars Steven and Eleanor’s equitable
claims against the Trust. Steven and Eleanor could have sought equitable relief years ago, and
instead waited until the appeal rights from the previous case had been exhausted before bringing

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more claims against the Trust. There is also no indication that the Trust knew Steven and
Eleanor would file a second lawsuit against them alleging additional claims.
As for the third element, prejudice “may be economic or evidentiary” and “it is ‘generally
held to be anything that places the party in a less favorable position.’” Id. (citation omitted).
“[E]videntiary prejudice arises when the plaintiff’s ‘delay in bringing an action has curtailed the
defendant’s ability to present a full and fair defense on the merits due to the loss of evidence, the
death of a witness, or the unreliability of memories.’” Id. (citation omitted). “Economic
prejudice arises when the ‘costs to the defendant have significantly increased due to the delay.’”
Id. (citation omitted).
In this case, the Trust alleged both evidentiary prejudice (“a number of witnesses are now
dead”) and economic prejudice (the Trust “will need to spend time and attorneys’ fees to
relitigate the same issues previously litigated over eight years … in the prior lawsuit”) in its
dismissal motion. In Steven and Eleanor’s opposition brief, they responded to the Trust’s
prejudice argument by stating that the Trust has access to the record and evidence from the prior
case. Given the circumstances of this case, we conclude that at a minimum, it is economically
prejudicial to require the Trust to now litigate equitable causes-of-action that could have been
brought before the close of the prior case.
The circuit court applied the doctrine of laches, reasoning:
it’s not equitable for this Court to allow claims to proceed today
that could have been and ought to have been and would have been
and in some cases [were] litigated in the prior action. Under the
doctrine of laches, … these claims have now been brought many
times, but it is not equitable for the Court to determine that these
types of cases or claims can be brought today, when they were
brought previously, could have been brought previously and in

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some cases were litigated previously to adverse decisions that
[Steven and Eleanor] don’t or won’t accept.
We conclude the court properly dismissed the equitable claims based on laches. See id. Because
we affirm the court’s dismissal of the equitable claims on the basis of laches, we do not discuss
whether the court appropriately dismissed these claims based on other doctrines and defenses.
See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) (cases should be
decided on the “narrowest possible ground”).
We next turn to Steven and Eleanor’s various claims for abuse of process. “An abuse of
process occurs when a person uses a legal process against another primarily to accomplish a
purpose for which it is not designed.” WIS JI—CIVIL 2620. Steven and Eleanor’s abuse-of-
process claims are generally based on statements the Trust made during the course of the prior
litigation in relation to the Trust’s summary judgment motion. The complaint generally alleges
that the Trust abused the process by making statements that attempted to induce Steven to
dismiss his original complaint before the Trust moved for summary judgment, by using summary
judgment to make statements that were not based on personal knowledge and/or were false, and
by using summary judgment to make statements that caused emotional distress to Steven and
Eleanor.
The applicable statute of limitations, which the parties stipulate is three years, see WIS.
STAT. § 893.57, forecloses claims based on much of the conduct alleged in the complaint. To the
extent anything survives the statute of limitations, Steven and Eleanor fail to account for the rule
that “[s]tatements ‘pertinent or relevant to the case’ that are made in the process of judicial
proceedings are absolutely privileged and insulate the speaker from liability.” Ladd v. Uecker,
2010 WI App 28, ¶¶13, 15, 323 Wis. 2d 798, 780 N.W.2d 216 (citation omitted). As such, we

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agree with the Trust that these statements cannot form a basis for Steven and Eleanor’s abuse-of-
process claims. Steven and Eleanor do not adequately develop other bases for these claims. We
therefore affirm the circuit court’s dismissal of Steven and Eleanor’s abuse-of-process claims
based on the statute of limitations and the litigation privilege. Because we affirm the court’s
dismissal of the abuse-of-process claims on these bases, we do not discuss whether the court
appropriately dismissed these claims based on other doctrines and defenses. See Blalock, 150
Wis. 2d at 703.
Finally, we turn to the circuit court’s determination that Steven and Eleanor’s complaint
was frivolous and its award of attorney fees as a sanction. Steven and Eleanor do not challenge
the amount of the attorney fees awarded on appeal. Instead, they only challenge the court’s
determination that their complaint was frivolous.
At the order to show cause hearing, the circuit court observed that to defeat a frivolous
determination, Steven and Eleanor needed to show that they “had a good faith basis for the
application of either existing law or a nonfrivolous argument for the extension, modification, or

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reversal of existing law, or establishment of new law under [WIS. STAT. §] 802.05.”2 However,
the court determined that, based on the briefs and argument, Steven and Eleanor failed to
establish they had a good faith basis for the application of either existing law or a nonfrivolous
argument for the extension, modification, or reversal of existing law, or establishment of new
law.
We disagree. As explained above, the circuit court’s application of laches was
discretionary, and as for the other defenses raised and applied, Steven and Eleanor presented
sufficiently reasonable arguments why they might not apply to the specific claims they asserted.
Accepting the factual allegations in Steven and Eleanor’s complaint as true, as we are required to
do at this stage, Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶18, 356 Wis. 2d
665, 849 N.W.2d 693, we are unable to conclude that Steven and Eleanor lacked a good faith
basis in the law for this action.
Because we reverse the circuit court’s ruling that the complaint is frivolous, we deny the
Trust’s request for attorney fees in connection with its defense of the circuit court’s frivolousness
2 WISCONSIN STAT. § 802.05(2) provides, in relevant part:
By presenting to the court, … a pleading, written motion, or other paper,
an attorney … is certifying that to the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable under the
circumstances, all of the following:
….
(b) The claims, defenses, and other legal contentions stated in the
paper are warranted by existing law or by a nonfrivolous argument for
the extension, modification, or reversal of existing law or the
establishment of new law.
Id.

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finding on appeal. See Riley v. Isaacson, 156 Wis. 2d 249, 262, 456 N.W.2d 619 (Ct. App.
1990) (if a complaint is correctly adjudged to be frivolous in the circuit court, it is frivolous
per se on appeal).
Therefore,
IT IS ORDERED that the dismissal order is summarily affirmed, the frivolousness and
sanctions order is summarily reversed, and the cause is remanded for further proceedings
consistent with this opinion. See WIS. STAT. RULE 809.21.
IT IS FURTHER ORDERED that the Trust’s request for attorney fees on appeal is
denied.
IT IS FURTHER ORDERED that this summary disposition order will not be published.
Samuel A. Christensen
Clerk of Court of Appeals