Harvey Bartsch, Jr. v. Randy Frokjer

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.
March 10, 2026
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. 2024AP1425 Cir. Ct. No. 2022CV178

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

THE ESTATE OF HARVEY BARTSCH, JR.,

PLAINTIFF-APPELLANT,

V.

RANDY FROKJER,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Lincoln County:
LOUIS J. MOLEPSKE, JR., Judge. Affirmed.

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).

¶1 PER CURIAM. The Estate of Harvey Bartsch, Jr., appeals from a
circuit court order granting Attorney Randy Frokjer’s motion for summary
No. 2024AP1425

judgment. The court granted the motion for summary judgment on several
grounds. We conclude that one of those grounds is dispositive to this appeal: the
equitable doctrine of laches applies to bar the Estate’s claims as a matter of law,
and the court did not erroneously exercise its discretion by dismissing the Estate’s
lawsuit on that ground. Accordingly, we affirm.

BACKGROUND

¶2 In 2018, Harvey Bartsch, Jr., (“Bartsch Jr.”) retained Frokjer to
represent him in a Vilas County tax foreclosure case involving certain properties
that Bartsch Jr. owned and that were valued at over $1 million. At a January 10,
2019 hearing, the circuit court in the foreclosure case granted Bartsch Jr. one day
to “redeem his property by a payment in full of all outstanding taxes” and other
applicable fees and costs, totaling $136,469.36. Frokjer advised the court that the
payment could be made within that timeframe.

¶3 Prior to the circuit court’s ruling in the foreclosure case, a friend of
Harvey Bartsch III—Bartsch Jr.’s power of attorney—offered to loan Bartsch Jr.
the money necessary to cure the tax liens in exchange for repayment of the loan
“plus 25% of the loaned amount.” In addition, Bartsch III had arranged for a loan
from UW Credit Union as an alternative to his friend’s loan. However, following
the court’s ruling, Bartsch III could not obtain either loan within the time period
required by the court.

¶4 The Bartsches then informed Frokjer about the impossibility of
obtaining either loan, and Frokjer, according to Bartsch III, said “that he could
provide the money on the same terms that [Bartsch III’s friend] had offered.”
Bartsch III, as Bartsch Jr.’s power of attorney, and Frokjer entered into a written
agreement on January 11, 2019, whereby Frokjer agreed to pay the tax liens by the

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court-imposed deadline. The agreement further provided that Frokjer was entitled
to repayment of the loan and an additional $250,000 from the sale of the
properties. Bartsch III, still acting as power of attorney, also signed a “waiver of
conflict of interest” document. Thereafter, Frokjer paid the tax liens in accordance
with the written agreement.

¶5 Approximately one week later, Vilas County determined that it had
overcharged Bartsch Jr. by over $22,000, and it issued a refund. The refund was
sent to Frokjer, who kept the funds. Frokjer claimed that he informed Bartsch III
of the refund in July 2019 and that he deducted that amount from the money owed
under the agreement.

¶6 In June 2019, Frokjer commenced a lawsuit against both Bartsch Jr.
and Bartsch III for breach of contract. Frokjer alleged that the Bartsches had
violated the agreement by failing to list the properties for sale. The Bartsches did
not file any counterclaims against Frokjer.

¶7 In September 2019, a circuit court appointed a guardian for
Bartsch Jr. following Vilas County’s petition for temporary and permanent
guardianship. Frokjer’s lawsuit was voluntarily dismissed with prejudice in
February 2022 after the properties were sold by Bartsch Jr.’s guardian, and Frokjer
received the amount due under the agreement.

¶8 Bartsch Jr. passed away on December 30, 2021, and Bartsch III
became the personal representative of his estate. Shortly before Bartsch Jr.’s
death, Bartsch III filed a lawsuit against Bartsch Jr.’s guardian “with respect to the
sale of the … real estate transaction and other actions by” the guardian. That
lawsuit was later dismissed by the circuit court.

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¶9 The Estate then filed the present lawsuit against Frokjer on
December 20, 2022, alleging claims for breach of fiduciary duty; recission of the
agreement (based on fraud, unfairness, unreasonableness, unconscionableness,
duress, coercion, undue influence, breach of fiduciary duty, or other fraud); unjust
enrichment; and breach of contract. The Estate sought judgment against Frokjer in
the amount of $250,000. Frokjer filed a motion for summary judgment. As is
relevant here, Frokjer argued that the equitable doctrine of laches barred each of
the Estate’s claims.

¶10 The circuit court agreed with Frokjer. The court concluded that the
Estate unreasonably delayed bringing the lawsuit against Frokjer until four years
after the agreement was signed and that the lawsuit could have been brought as
early as January 2019. Moreover, the court stated that the issues surrounding the
agreement “potentially” “could have been brought” in Bartsch III’s lawsuit against
the guardian and that “[a]ll these issues were discussed in that case.” In addition,
the court determined that any admissible evidence did not support a finding that
Bartsch Jr. was incompetent during the relevant time period, and, therefore, the
delay was not reasonable.

¶11 According to the circuit court, Frokjer did not know that the Estate
would raise its claims, and he suffered prejudice as a result of the Estate’s delay in
bringing this lawsuit. Specifically, the court noted that Frokjer paid $50,000 in
irrecoverable income tax on the funds he received under the agreement, which “he
would not have otherwise … paid.” The court concluded that the payment of
taxes can constitute economic prejudice. The court further concluded that Frokjer
was prejudiced by the delay given the “[u]ncharged time” he put into satisfying his
duty under the agreement and clearing the titles to the property while not acting as
an attorney for Bartsch Jr. The court also noted that because of the delay,

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Bartsch Jr. was not there to “testify and tell the Court” his side of the story.
Accordingly, the court dismissed the lawsuit.

¶12 The Estate now appeals.1

DISCUSSION

¶13 Although the parties raise several issues on appeal related to the
circuit court’s granting of Frokjer’s motion for summary judgment, we conclude
that one issue is dispositive. Namely, the equitable doctrine of laches applies to
bar the Estate’s claims as a matter of law, and the circuit court did not erroneously
exercise its discretion by dismissing the Estate’s lawsuit on that ground. Because
this one issue is dispositive of this appeal, we limit our analysis accordingly.
See Barrows v. American Fam. Ins., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842
N.W.2d 508 (2013) (stating that we “need not address every issue raised by the
parties when one issue is dispositive”).

¶14 We review a grant of summary judgment de novo, using the same
methodology as the circuit court. Yahnke v. Carson, 2000 WI 74, ¶10, 236
Wis. 2d 257, 613 N.W.2d 102. Summary judgment shall be awarded if “there is
no genuine issue as to any material fact and … the moving party is entitled to a
judgment as a matter of law.” WIS. STAT. § 802.08(2).

1
The parties’ appellate briefs do not comply with WIS. STAT. RULE 809.19(8)(bm)
(2023-24), which requires a brief to “have page numbers centered in the bottom margin using
Arabic numerals with sequential numbering starting at ‘1’ on the cover.” Our supreme court has
explained that this pagination requirement “will match the page number to the page header
applied by the eFiling system, avoiding the confusion of having two different page numbers.”
S. CT. ORDER 20-07, 2021 WI 37, 397 Wis. 2d xiii (eff. July 1, 2021). We admonish both parties
that we expect them to follow our Rules of Appellate Procedure.

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

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¶15 “Laches is an affirmative, equitable defense designed to bar relief
when a claimant’s failure to promptly bring a claim causes prejudice to the party
having to defend against that claim.” Wisconsin Small Bus. United, Inc. v.
Brennan, 2020 WI 69, ¶11, 393 Wis. 2d 308, 946 N.W.2d 101. “In Wisconsin,
application of laches is premised on proof of 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., ¶12. “The party seeking application of laches bears the burden of
proving each element.” Id. “Whether that burden is carried is a question of law.”
Id. However, “[e]ven if all three elements are satisfied, application of laches is
left to the sound discretion of the court asked to apply this equitable bar.” Id.

¶16 The Estate does not challenge the circuit court’s conclusion that
Frokjer met his burden on the first and second elements of laches, and we do not
address those elements further. See A.O. Smith Corp. v. Allstate Ins., 222 Wis. 2d
475, 491, 588 N.W.2d 285 (Ct. App. 1998).

¶17 Under the third element, “[w]hat amounts to prejudice … depends
upon the facts and circumstances of each case, but it is generally held to be
anything that places the party in a less favorable position.” Brennan, 393 Wis. 2d
308, ¶19 (citation omitted). There are generally two types of prejudice in the
context of laches: evidentiary and economic. State ex rel. Wren v. Richardson,
2019 WI 110, ¶33, 389 Wis. 2d 516, 936 N.W.2d 587. Economic prejudice occurs
when the “costs to the defendant have significantly increased due to the delay.”
Id., ¶33 n.26 (citation omitted).

¶18 The Estate’s main contention on appeal is that the circuit court erred
by relying on Frokjer’s payment of income tax on the funds he received under the

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agreement to conclude that the delay in bringing the claims resulted in economic
prejudice to him. The Estate argues that if a $250,000 judgment were entered
against Frokjer, he “could deduct that expense and recover the taxes he previously
paid.” According to the Estate, a decision affirming the circuit court’s holding
“would greatly expand the application of the laches defense and would
dramatically shorten the period in which any sort of financial claim could be
brought.”

¶19 We disagree with the Estate for several reasons. First, Frokjer was
economically prejudiced by the unreasonable delay, in part, because he paid
income tax without knowledge of the Estate’s intent to challenge the agreement.
Here, the Estate sought judgment against Frokjer in the amount of $250,000—the
same amount upon which Frokjer paid income tax. As the circuit court
recognized, the income tax Frokjer paid is money that Frokjer cannot recover. In
other words, judgment against Frokjer on the Estate’s claims would place him in a
less favorable position (i.e., $50,000 less income), thereby increasing his costs due
to the unreasonable delay. Even if Frokjer could recoup his losses by later tax
filings, prejudice would still result in the short term by depriving Frokjer of
$50,000. Had the Estate brought its claims either before or soon after Frokjer
received his benefit under the agreement, the claims could have been addressed
prior to the income tax being paid, or, at the very least, Frokjer would have been
placed on notice that the $250,000 might need to be repaid to the Estate if the
Estate were ultimately successful in its lawsuit.

¶20 Second, we agree with the circuit court that Frokjer was
economically prejudiced by the unreasonable delay, in part, because he invested
unpaid time and resources into satisfying his end of the agreement, enforcing the
agreement, and clearing the properties’ titles without knowledge of the Estate’s

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intent to challenge the agreement after Frokjer paid the tax liens necessary to
avoid foreclosure on the properties. As Frokjer explains, his purchase of the
properties via the agreement contained significant risk. In particular, Frokjer was
aware at the time he entered the agreement that all but one of the properties may
have required environmental cleanup due to contamination issues. In fact, the
Forest Administrator for Vilas County testified at the January 10, 2019 hearing
regarding the environmental issues and stated that the County hired a consultant to
perform an environmental assessment. The consultant concluded that there might
need to be “further investigation … to determine whether or not there may be
some environmental contamination of those properties.” Despite these concerns,
given the court-imposed deadline, Frokjer fulfilled his obligations under the
agreement without conducting an environmental assessment.

¶21 Afterward, Frokjer spent approximately 30 to 40 hours “cleaning up
the titles” and obtaining “documents satisfactory to the title company in order to
issue title insurance.” Frokjer completed this work as an investor and, therefore,
did not receive attorney fees. Later, Frokjer was required to file a lawsuit against
the Bartsches for their failure to comply with the agreement to sell the properties.
Eventually, the properties were sold, and the lawsuit was dismissed. At no time
during this process was Frokjer made aware of the Estate’s dissatisfaction with the
agreement or of any intent to file claims against him. Stated differently, judgment
against Frokjer on the Estate’s claims would reward the Estate’s delay in filing its
lawsuit with the fruits of Frokjer’s efforts, thereby placing Frokjer in a less
favorable position than he would have occupied had the lawsuit been filed years
previously.

¶22 Lastly, although not addressed by either party on appeal, we agree
with the circuit court that Frokjer was evidentiarily prejudiced by the delay

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because a key witness, Bartsch Jr., passed away prior to the Estate’s lawsuit.2
“Evidentiary prejudice … may arise where a 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.” Wren, 389 Wis. 2d 516, ¶33 (citation omitted). “The death of key
witnesses is precisely the kind of thing laches is aimed at, particularly
where … ‘the decedent’s knowledge is crucial to a party’s defense.’” Id., ¶34
(citation omitted).

¶23 Here, the allegations against Frokjer involved his representation of
Bartsch Jr., including that Frokjer breached his fiduciary duty as Bartsch Jr.’s
attorney; “induced by fraud” the agreement; and “procured” the agreement by
coercion, duress, and undue influence. According to the Estate, Bartsch Jr. “was
not given a reasonable opportunity to seek the advice of independent legal
counsel” regarding the agreement, and the agreement was not “fair and
reasonable.”

¶24 In response to the lawsuit, Frokjer disputed the allegations against
him pertaining to the agreement and his representation of Bartsch Jr. For example,
Frokjer alleged that he expressly terminated his representation of Bartsch Jr.
following the foreclosure ruling and that Bartsch Jr. had informed Frokjer that he

2
In a conclusory fashion, the Estate asserts that “Bartsch Jr. was an incompetent man”
and that the delay in bringing the lawsuit was therefore reasonable. The Estate raises this
argument for the first time on appeal in its reply brief, and we therefore need not consider it
further. See A.O. Smith Corp. v. Allstate Ins., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App.
1998). Regardless, the Estate fails to address how the circuit court erred by determining that any
evidence relied on to show that Bartsch Jr. was incompetent during the relevant time period
would be inadmissible. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App.
1992) (stating that we need not consider undeveloped arguments).

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was happy with the agreement and Frokjer’s representation in the foreclosure case.
Accordingly, Bartsch Jr.’s testimony—as Frokjer’s former client and the
individual with whom Frokjer entered the agreement—would be essential to
Frokjer’s defense on most, if not all, of the claims filed by the Estate. Bartsch Jr.
did not pass away until December 2021, almost three years after the agreement
was signed.

¶25 In all, Frokjer faced both economic and evidentiary prejudice as a
result of the Estate’s unreasonable delay in filing the present lawsuit. Frokjer
prevented Vilas County from foreclosing on Bartsch Jr.’s properties, and, in doing
so, he accepted all of the initial expense and risk associated with fulfilling his
obligations under the agreement. The Estate now seeks to undo Frokjer’s efforts
in this regard years after the agreement was entered into; years after Frokjer spent
unpaid time and effort to clear the titles; years after Frokjer sued to obtain the
bargained-for income; and, importantly, almost a year after a key witness passed
away.3 The Estate was not necessarily required to file a lawsuit prior to Frokjer
paying his income tax on the $250,000. However, when the prejudicial factors are
considered as a whole, including the income tax Frokjer paid and the loss of a key
evidentiary witness, Frokjer was prejudiced by the Estate’s delay in bringing the
lawsuit.

3
The Estate further argues that a conclusion that Frokjer’s payment of income tax
constitutes economic prejudice is “not the only reasonable conclusion, as would have to be the
case to make a finding of laches on summary judgment.” However, as we have explained above,
whether the party seeking application of laches met his or her burden of proving each element is a
question of law. See Wisconsin Small Bus. United, Inc. v. Brennan, 2020 WI 69, ¶12, 393
Wis. 2d 308, 946 N.W.2d 101. Because there are no material factual issues surrounding the
income tax Frokjer paid, we can determine economic prejudice as a matter of law.

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¶26 The Estate does not argue that, if Frokjer met his burden of
establishing the three elements of laches, the circuit court erroneously exercised its
discretion by dismissing the lawsuit. See A.O. Smith Corp., 222 Wis. 2d at 491.
Therefore, having established that Frokjer met his burden on the three elements of
laches as a matter of law, we affirm.

By the Court.—Order affirmed.

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

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