Lynn Garner Robbins v. Russ Darrow-Madison, LLC

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 2, 2023
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2022AP1126 Cir. Ct. No. 2018CV3322

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

LYNN GARNER ROBBINS,

PLAINTIFF-APPELLANT,

NANCY K. SKIDMORE,

PLAINTIFF,

ALEX M. AZAR, III AND ROBERT WILKIE,

SUBROGATED PLAINTIFFS,

V.

RUSS DARROW-MADISON, LLC,
UNIVERSAL UNDERWRITERS COMPANY SERVICES CORP.,
AND BRICKNER’S OF ANTIGO, INC.,

DEFENDANTS-RESPONDENTS.
No. 2022AP1126

APPEAL from an order of the circuit court for Dane County:
EVERETT MITCHELL, Judge. Reversed and cause remanded for further
proceedings.

Before Blanchard, P.J., Fitzpatrick, 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).

¶1 PER CURIAM. Lynn Garner Robbins appeals an order of the Dane
County Circuit Court that dismissed her lawsuit against Russ Darrow-Madison,
LLC, Universal Underwriters Company Services Corp., and Brickner’s of Antigo,
Inc. as a sanction for her spoliation of evidence. Robbins argues that the circuit
court erroneously exercised its discretion in dismissing her lawsuit because: (1) she
discharged her duty to preserve the missing evidence; (2) the missing evidence
could be obtained from other sources; and (3) the circuit court did not determine
that her spoliation of the evidence was “egregious,” and that determination is
necessary to impose the sanction of dismissal. Robbins’s first two arguments fail.
However, we conclude that the circuit court did not properly exercise its discretion
in dismissing Robbins’s lawsuit because it did not determine that Robbins’s
spoliation of evidence was egregious. Therefore, we reverse the circuit court’s order
and remand for the circuit court to set forth its findings of fact regarding a sanction
for the spoliation, apply the proper legal standard, and provide its reasoning as to
the proper sanction, if any, for Robbins’s conduct.

BACKGROUND

¶2 For purposes of deciding the issues raised in this appeal, there is no
dispute as to the following material facts.

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No. 2022AP1126

¶3 Robbins purchased a Jeep Cherokee in 2015. Several months after the
purchase, Robbins began experiencing issues with the Jeep’s transmission. The
manufacturer authorized the installation of a new transmission pursuant to the
vehicle’s warranty, and the new transmission was installed in April 2016 by Russ
Darrow-Madison, LLC (“Russ Darrow”), a car dealership in Madison.1

¶4 In May 2016, a few weeks after Russ Darrow installed the new
transmission, a power surge occurred while Robbins was driving the Jeep, and the
power surge caused the vehicle’s power steering to freeze. The Jeep left the road
and crashed into a ravine, and Robbins and her passenger suffered injuries. Robbins
then took the Jeep to Brickner’s of Antigo, Inc. (“Brickner’s”), a car dealership in
Antigo. Brickner’s performed repairs on the transmission and returned the Jeep to
Robbins.

¶5 About a month later, Robbins’s vehicle experienced another power
surge that resulted in the Jeep colliding with a post. Robbins informed Brickner’s
of the collision, and at that time Brickner’s did not take any action concerning the
vehicle. A few weeks later, while driving on a highway, Robbins experienced
another power surge that caused the power steering to freeze. The Jeep left the road
and crashed into a berm, tree, and log, and Robbins suffered further injuries.

¶6 On June 1, 2016, two weeks prior to the final incident, Robbins filed
a warranty claim against FCA US LLC, the manufacturer of the Jeep. In March
2017, with the assistance of counsel, Robbins signed a settlement agreement in
which she agreed to withdraw her warranty claim against the manufacturer in
exchange for credit to purchase a new vehicle. In addition, in the same settlement

1
For convenience, we refer to Russ Darrow and its insurer, Universal Underwriters
Services Corp., collectively as “Russ Darrow.”

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No. 2022AP1126

agreement, Robbins agreed to surrender the Jeep to the manufacturer, which she did
in April 2017. The settlement agreement released the manufacturer from liability.
The settlement agreement also stated that any “authorized dealers”2 were not
released from liability regarding “claims of personal injury or negligence arising out
of allegations of negligent repair [of the vehicle].”

¶7 In December 2018, Robbins filed the complaint that initiated this
action against Russ Darrow and Brickner’s (collectively, “the dealerships”) alleging
that the negligence of the dealerships’ employees caused her injuries.3 In response,
the dealerships moved to dismiss Robbins’s claims with prejudice as a sanction for
spoliation of evidence. The dealerships argued that Robbins “knowingly and
flagrantly” disposed of the Jeep as part of the settlement of the warranty claim with
the manufacturer before she commenced this negligence action against the
dealerships. According to the dealerships, Robbins’s disposal of the Jeep before she
commenced this lawsuit prejudiced the dealerships because they are prevented from
inspecting or evaluating the Jeep.

¶8 At a hearing, the circuit court granted the dealerships’ motions and
entered an order dismissing Robbins’s claims with prejudice. Robbins appeals.

¶9 Additional material facts are set forth in the following discussion.

2
The parties do not dispute that Russ Darrow and Brickner’s are “authorized dealers”
within the meaning of that term in the settlement agreement.
3
Keith Skidmore, a passenger in the vehicle during one of the above-mentioned accidents,
was also named as a plaintiff in Robbins’s complaint. Mr. Skidmore died in 2021, and Nancy K.
Skidmore, the personal representative of Mr. Skidmore’s estate, was substituted as a plaintiff.
Robbins also added as subrogated plaintiffs in the circuit court Alex M. Azar, II, then-Secretary of
the United States Department of Health and Human Services, and Robert Wilkie, then-Secretary of
the United States Department of Veterans Affairs. Because Nancy Skidmore, Azar, and Wilkie
have not participated in this appeal, we do not address those parties further in this opinion.

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No. 2022AP1126

DISCUSSION

¶10 On appeal, Robbins argues that, for three reasons, the circuit court
erroneously exercised its discretion in dismissing her claims: (1) she discharged her
duty to preserve the Jeep as evidence; (2) evidence as to the condition of the Jeep
can be obtained from other sources; and (3) the circuit court did not determine that
her conduct was “egregious” as is necessary to impose the sanction of dismissal.
We address each argument in turn.

I. Robbins Did Not Discharge Her Duty to Preserve Evidence.

¶11 “Every potential litigant and party to an action has a duty to preserve
evidence that is essential to a claim that will likely be litigated.” Mueller v. Bull’s
Eye Sport Shop, LLC, 2021 WI App 34, ¶18, 398 Wis. 2d 329, 961 N.W.2d 112.
However, a party or potential litigant that establishes a “legitimate reason to destroy
evidence” may discharge its duty to preserve relevant evidence within its control by
providing the opposing party or potential litigant with each of the following:
“(1) reasonable notice of a possible claim; (2) the basis for that claim; (3) the
existence of evidence relevant to the claim; and (4) reasonable opportunity to
inspect that evidence” before it is destroyed. American Fam. Mut. Ins. Co. v.
Golke, 2009 WI 81, ¶28, 319 Wis. 2d 397, 768 N.W.2d 729. “The specific method
or frequency of such notice is less significant. Rather, the trial court must use its
own judgment, its own discretion, to determine whether the content of the notice is
sufficient in light of the totality of the circumstances.” Id., ¶29.

¶12 Initially, Robbins’s argument fails because she does not develop any
argument that she had “a legitimate reason to destroy evidence.” That, alone, is a
sufficient basis to reject Robbins’s argument. See State v. Pettit, 171 Wis. 2d 627,

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No. 2022AP1126

647, 492 N.W.2d 633 (Ct. App. 1992) (holding that this court “cannot serve as both
advocate and judge”).

¶13 In addition, as to the four requirements set forth by our supreme court
in Golke, Robbins argues that she discharged her duty to preserve the Jeep because
she contacted the dealerships regarding the vehicle’s power surges4 and took the
Jeep to Brickner’s for repairs. According to Robbins, these facts establish that both
dealerships were informed of the basis of Robbins’s negligence claim, were aware
of the existence of the Jeep, and had the opportunity to inspect the Jeep before she
surrendered it to the manufacturer. But Robbins does not make any viable argument
that she satisfied the first requirement in Golke that the dealerships had “reasonable
notice” of her claims and the fourth requirement that she gave the dealerships a
reasonable opportunity to inspect the vehicle. See Golke, 319 Wis. 2d 397, ¶28.
Rather, as the dealerships argue and Robbins does not dispute in this appeal,
Robbins first notified the dealerships of her intent to pursue negligence claims
against them when her attorney sent the dealerships a letter in May 2017—more
than a month after she had surrendered the Jeep to the manufacturer—that she had
retained counsel to pursue claims based on “negligent repairs.” We will not develop
these arguments for Robbins. See Pettit, 171 Wis. 2d at 647. Thus, we conclude
that Robbins has failed to demonstrate that she discharged her duty to preserve the
Jeep.

4
Robbins asserts that she attempted to contact Russ Darrow after the vehicle’s third power
surge that occurred in June 2016 but was told that Russ Darrow would not examine the vehicle and
that Robbins would have to talk to “Corporate.” In support of this factual assertion, Robbins cites
only to her response brief in the circuit court proceedings, which in turn cites to audio files that are
not in the record. Nonetheless, the dealerships do not dispute that Robbins contacted Russ Darrow
after that power surge or that Russ Darrow told Robbins to talk to “Corporate.”

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No. 2022AP1126

II. Other Sources of the Missing Evidence and the Circuit
Court’s Sanction of Dismissal.

¶14 Robbins argues that the circuit court erroneously exercised its
discretion because the court failed to determine whether the missing evidence could
be obtained from other sources, and the circuit court failed to make a determination
of egregiousness in support of the sanction of dismissal. We begin our analysis by
setting forth further governing principles and our standard of review regarding these
issues.

A. Governing Principles and Standard of Review Regarding Spoliation of
Evidence and Discretionary Decisions.

¶15 In determining whether spoliation of evidence has occurred and
whether a sanction should be imposed, Wisconsin courts apply a “multi-step
analytical process.” Mueller, 398 Wis. 2d 329, ¶19 (citing Milwaukee
Constructors II v. Milwaukee Metro. Sewerage Dist., 177 Wis. 2d 523, 532, 502
N.W.2d 881 (Ct. App. 1993)). First, the court identifies, with as much specificity
as possible, the evidence that is alleged to have been destroyed, altered, or lost. Id.
After the destroyed, altered, or lost evidence has been identified, the court makes a
factual inquiry into the following three factors: (1) the relationship of the destroyed,
altered, or lost evidence to the issues in the present action; (2) the extent to which
the destroyed, altered, or lost evidence can now be obtained from other sources; and
(3) whether the party responsible for the evidence destruction, alteration, or loss
knew or should have known at the time he or she caused the destruction, alteration,
or loss of evidence that litigation against the opposing parties was a distinct
possibility. Id. Finally, the court must decide whether, in light of the circumstances
disclosed by the court’s factual inquiry into the three previously identified factors,

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No. 2022AP1126

sanctions should be imposed upon the party responsible for the evidence
destruction, alteration, or loss and, if so, what the sanction should be. Id.

¶16 A circuit court’s decision whether to impose sanctions for the
spoliation of evidence, and what sanction to impose, is committed to the circuit
court’s discretion. Id., ¶22. This court will affirm the circuit court’s decision on
spoliation sanctions if the circuit court “has examined the relevant facts, applied a
proper standard of law, and, utilizing a demonstratively rational process, reached a
conclusion that a reasonable judge could reach.” Id. When reviewing a circuit
court’s discretionary decision, we review any questions of law independently, but
we will not disturb the circuit court’s factual findings unless those are clearly
erroneous. Xiong v. Vang, 2017 WI App 73, ¶46, 378 Wis. 2d 636, 904 N.W.2d
814.

¶17 A discretionary decision must be supported by “evidence in the record
that discretion was in fact exercised.” County of Kenosha v. C & S Mgmt., Inc.,
223 Wis. 2d 373, 407, 588 N.W.2d 236 (1999). “We generally look for reasons to
sustain discretionary decisions,” and, “[w]hen the [circuit] court’s reasoning is
inadequate or incomplete, we may independently review the record to look for
additional reasons to support the court’s exercise of discretion.” Wolnak v.
Cardiovascular & Thoracic Surgeons of Cent. Wis., S.C., 2005 WI App 217, ¶55,
287 Wis. 2d 560, 706 N.W.2d 667. However, this court “may not exercise the
[circuit] court’s discretion.” State v. Hydrite Chem. Co., 220 Wis. 2d 51, 65, 582
N.W.2d 411 (Ct. App. 1998). Accordingly, if the circuit court did not provide the
reasoning for its discretionary decision or did not make the factual findings
necessary to support that decision, we may reverse the court’s ruling and remand
the matter so that the court may set forth its findings of fact and reasoning with
respect to its decision. See id.

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No. 2022AP1126

B. The Circuit Court Properly Exercised its Discretion in Considering
Whether the Missing Evidence Is Available From Other Sources.

¶18 As noted, Robbins argues that the circuit court erroneously exercised
its discretion in dismissing her claims because it did not determine whether the
missing evidence could be obtained from other sources.5 See Mueller, 398 Wis. 2d
329, ¶19. According to Robbins, the court failed to address whether the evidence
of the Jeep’s condition could be obtained from the Jeep’s maintenance records or
from a report that Robbins’s expert prepared based on those maintenance records.
For the following reasons, we conclude that the court adequately addressed this
factor of the factual inquiry.

¶19 In its oral ruling, the court addressed whether evidence of the Jeep’s
condition could be obtained from other sources:

And I’m still stuck on this -- the number three of this
decision: Can it be obtained from other sources? … I think,
artfully, [Robbins’s attorney] did kind of articulate that there
are, you know, maintenance records; but I’m still struggling
with whether or not those particular records are the same
kind of records that a defendant would need in order to assess
whether or not the Jeep was functioning or not functioning
in a manner that’s consistent with what the plaintiff is
alleging in her petition.

So while, in most cases, I like to have cases just [be
decided based on the] evidence and allow for that evidence
to be heard and then give maybe a curative instruction after
we’ve heard most of it; but, in this case, it seems like I’d be
stuck with trying to hear theories that allow the maintenance
records and other evidence, but still not [be able] to hear

5
Robbins does not argue that the circuit court erroneously exercised its discretion as to
the other factual aspects of the spoliation test. Therefore, we need not, and do not, address in this
opinion whether the court properly exercised its discretion as to the following: (1) identifying the
Jeep as the evidence that is alleged to have been destroyed, altered, or lost; (2) determining the
relationship of the Jeep to the issues in the present action; and (3) determining whether Robbins
knew or should have known at the time she surrendered the Jeep that litigation against the
dealerships was a distinct possibility. See Mueller v. Bull’s Eye Sport Shop, LLC, 2021 WI App
34, ¶19, 398 Wis. 2d 329, 961 N.W.2d 112.

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No. 2022AP1126

evidence because the defendant never had the piece of
property to be investigated whether or not the piece of
evidence actually performed in the manner or didn’t perform
in the manner that the plaintiff asserts.

So I think, … given what I’ve heard and the briefs
I’ve [read] and the filing of motions, … in this rare situation,
… granting the defendant’s motion is appropriate; and I will
dismiss this case … because I do believe that the issue of not
having the particular Jeep is a fundamental flaw.

¶20 This portion of the court’s ruling demonstrates that the circuit court
adequately considered this factor of the spoliation factual inquiry. Significantly, the
court explained that the unavailability of the Jeep was a “fundamental flaw” because
it deprived the dealerships of the opportunity to investigate Robbins’s claims. The
court also explained that the maintenance records were not an adequate evidentiary
substitute for the Jeep because those did not provide the dealerships with the
necessary information to determine whether the repairs to the Jeep were performed
negligently. The court did not explicitly state that evidence of the Jeep’s condition
was not available from other sources, but the only reasonable interpretation of the
circuit court’s ruling is that the court concluded that information regarding the
condition of the Jeep could not be obtained from the maintenance records or the
expert report. See State v. Jeske, 197 Wis. 2d 905, 912, 541 N.W.2d 225 (Ct. App.
1995) (“[The exercise of discretion] need not be a lengthy process. While reasons
must be stated, they need not be exhaustive.”).

¶21 Robbins contends that the circuit court did not identify any relevant
information about the condition of the Jeep that was missing from the maintenance
records or expert report. We are not persuaded because Robbins’s contention misses
the point. Robbins fails to establish that the information in the maintenance records
or the expert report would serve as an adequate substitute. Rather, Robbins gives

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No. 2022AP1126

only conclusory assertions without any factual basis in her briefing in this court to
support her argument.

¶22 Because the transcript of the court’s oral ruling demonstrates that the
court examined the relevant facts, applied the proper standard of law, and used a
rational process to reach a reasonable conclusion, we conclude that the court
properly considered this factor as part of its discretionary decision.

C. Sanction for Spoliation of Evidence.

¶23 Next Robbins argues that the circuit court erroneously exercised its
discretion in dismissing her claims because it did not determine that her conduct
was “egregious.” We next set forth governing principles regarding sanctions for
spoliation of evidence.

¶24 When spoliation is an issue, a circuit court has “a broad canvas upon
which to paint in determining what sanctions are necessary.” Milwaukee
Constructors II, 177 Wis. 2d at 538. In determining which sanction to impose, the
court should be mindful of the two main purposes served by sanctions for spoliation
of evidence: “to uphold the judicial system’s truth-seeking function” and “to deter
parties from destroying evidence.” Mueller, 398 Wis. 2d 329, ¶20. This court has
recognized a number of possible sanctions that a circuit court may impose, including
discovery sanctions, monetary sanctions, exclusion of evidence, reading the
spoliation negative inference instruction (WIS JI—CIVIL 400) to the jury, and
dismissal of one or more claims. Id. The party seeking the imposition of a sanction
for the spoliation of evidence has the burden of proving that a sanction is
appropriate. See Estate of Neumann v. Neumann, 2001 WI App 61, ¶¶82-83, 242
Wis. 2d 205, 626 N.W.2d 821; Milwaukee Constructors II, 177 Wis. 2d at 534
(holding that the parties moving for sanctions had not “presented evidence” that

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No. 2022AP1126

dismissal was appropriate); Jagmin v. Simonds Abrasive Co., 61 Wis. 2d 60, 80-
81, 211 N.W.2d 810 (1973) (“[T]he plaintiff had not proven to a reasonable
certainty by evidence which was clear, satisfactory and convincing that the
defendant intentionally destroyed, or fabricated evidence.” (footnote omitted)).

¶25 Dismissal of one or more of a party’s claims is a particularly harsh
sanction that should rarely be granted. Garfoot v. Fireman’s Fund Ins. Co., 228
Wis. 2d 707, 719, 599 N.W.2d 411 (Ct. App. 1999); Morrison v. Rankin, 2007 WI
App 186, ¶20, 305 Wis. 2d 240, 738 N.W.2d 588. “[D]ismissal as a sanction for
spoliation is appropriate only when the party in control of the evidence acted
egregiously in destroying that evidence.” Golke, 319 Wis. 2d 397, ¶42.
“Egregious” conduct in this context is “a conscious attempt to affect the outcome of
the litigation or a flagrant, knowing disregard of the judicial process.” Id. If a
party’s spoliation of evidence is not “egregious”—for instance, if the spoliation is
merely “negligent” or “volitional”—the circuit court may impose only lesser
spoliation sanctions such as discovery sanctions and the spoliation negative
inference instruction. Id.; Milwaukee Constructors II, 177 Wis. 2d at 535; Jagmin,
61 Wis. 2d at 81.

¶26 As noted, the circuit court dismissed Robbins’s lawsuit as a sanction
for Robbins’s spoliation of evidence. However, the court did not state in its ruling
that Robbins’s conduct was egregious nor did it find that Robbins intended to affect
the outcome of any future litigation or knowingly disregarded the judicial process.
Instead, the court apparently dismissed Robbins’s claims because Robbins’s
spoliation of evidence prejudiced the dealerships and prevented them from
mounting a defense to Robbins’s claims. We recognize that prejudice is an
important consideration when a court decides what sanction to impose, if any, for
spoliation of evidence. See Garfoot, 228 Wis. 2d at 731-32. However, a court may

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No. 2022AP1126

dismiss one or more of a party’s claims only if the court determines that the party’s
spoliation of evidence was egregious in that it was “a conscious attempt to affect
the outcome of the litigation or a flagrant, knowing disregard of the judicial
process.” Golke, 319 Wis. 2d 397, ¶42. Prejudice alone is not a sufficient
justification for dismissal. See id.; Mohns Inc. v. BMO Harris Bank Nat’l Ass’n,
2021 WI 8, ¶36, 395 Wis. 2d 421, 954 N.W.2d 339. Therefore, we conclude that
the circuit court erroneously exercised its discretion because it did not apply the
proper standard of law.6

¶27 The dealerships concede that the court did not explicitly state that
Robbins’s spoliation was egregious. Nonetheless, they argue that we should affirm

6
Based on our review of the parties’ briefing to the circuit court and the transcript of the
motion hearing, we observe that confusion may have been generated in the circuit court by a
misstatement of the legal standards by Robbins—a misstatement that was contrary to her own
interest. In her response brief to the dealerships’ motion for sanctions, Robbins asserted: “In rare
instances then, dismissal may be proper where egregious conduct is absent but an opposing party’s
ability to defend is impaired to the degree that a fair trial is not possible.” Robbins repeated this
assertion during the motion hearing: “Egregious conduct must be found to sustain dismissal of an
action except if it is an extraordinary case where there is no possible way for the defendants to
fairly defend.” For support, Robbins cited this court’s decision in Sentry Insurance v. Royal
Insurance Co. of America, 196 Wis. 2d 907, 539 N.W.2d 911 (Ct. App. 1995). However, this
court specifically rejected this interpretation of Sentry in Garfoot v. Fireman’s Fund Insurance
Co., 228 Wis. 2d 707, 599 N.W.2d 411 (Ct. App. 1999). In Garfoot, this court concluded that
Sentry did not modify the standard for dismissal and stated that a finding of egregious conduct is
necessary to dismiss one or more of a party’s claims. Garfoot, 228 Wis. 2d. at 723-24. This court’s
statement in Garfoot was reaffirmed by our supreme court. American Fam. Mut. Ins. Co. v. Golke,
2009 WI 81, ¶¶41-42, 319 Wis. 2d 397, 768 N.W.2d 729.

Despite the fact that Robbins misstated the legal standard (to her disadvantage) in the
circuit court, we do not address whether she forfeited her appellate argument on the “egregious”
topic based on this misstatement to the circuit court. On appeal, Robbins provides this court with
the proper standard for dismissal, although without acknowledging that she provided a different
standard during the circuit court proceedings. For their part, the dealerships provided the proper
standard for dismissal in their main brief to the circuit court. However, the dealerships did not
mention in their reply brief to the circuit court or during the circuit court motion hearing that
Robbins provided the court with the wrong standard. In their response brief on appeal, the
dealerships do not contend that Robbins failed to make an argument in the circuit court under the
correct legal standard or that Robbins otherwise forfeited her argument regarding this legal
standard.

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No. 2022AP1126

the circuit court’s dismissal order because it can be inferred that the court
determined that Robbins’s surrender of the Jeep was egregious. According to the
dealerships, the court must have determined that Robbins’s conduct was egregious
because it is undisputed that Robbins’s counsel was involved in the settlement of
the manufacturer warranty claim and was aware that the settlement agreement did
not release liability for claims of negligent repair against the dealerships. These
facts certainly could provide support for a determination by the circuit court that
Robbins intended to affect the outcome of any future litigation or flagrantly
disregarded the judicial process. However, it is up to the circuit court to determine
if those and other material facts necessarily lead to that conclusion. Here, the circuit
court did not make any findings of fact regarding Robbins’s mental state or apply
the proper legal standard for dismissal, so we lack a sufficient basis to conclude that
it properly exercised its discretion. As explained above, we may not exercise the
court’s discretion. Hydrite Chem., 220 Wis. 2d at 65. Therefore, we reverse the
court’s order dismissing Robbins’s claim as a sanction for spoliation of evidence
and remand the matter so the court may set forth its findings of fact, apply the proper
legal standard, and provide its reasoning as to the proper sanction, if any, for
Robbins’s conduct.

CONCLUSION

¶28 For the foregoing reasons, the order of the circuit court is reversed,
and the cause is remanded for further proceedings consistent with this opinion.

By the Court.—Order reversed and cause remanded for further
proceedings.

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No. 2022AP1126

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2021-22).

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