The Bank of New York Mellon v. Carolyn M. Nelson

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 19, 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. 2024AP2552 Cir. Ct. No. 2022CV1954

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

THE BANK OF NEW YORK MELLON,

PLAINTIFF,

V.

CAROLYN M. NELSON, MICHAEL D. NELSON,
CAPITAL ONE BANK (USA) NA C/O CORPORATION SERVICE COMPANY,
HARKEY OPERATING TRUST, SAUK PRAIRIE HEALTHCARE, INC. AND
MICHAEL E. HARKEY,

DEFENDANTS,

WENDY ALISON NORA,

DEFENDANT-THIRD-PARTY PLAINTIFF-APPELLANT,

V.

FIRST HORIZON ALTERNATIVE MORTGAGE SECURITIES TRUST,
NATIONSTAR MORTGAGE LLC,
THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK,
FIRST HORIZON BANK, FIRST HORIZON CORPORATION,
FIRST HORIZON ASSET SECURITIES, INC.,
CREDIT SUISSE SECURITIES (USA) LLC, FHN FINANCIAL SECURITIES CORP.,
AND NATIONWIDE TITLE CLEARING LLC,
No. 2024AP2552

THIRD-PARTY DEFENDANTS-RESPONDENTS.

APPEAL from orders of the circuit court for Dane County:
JACOB B. FROST, Judge. Affirmed.

Before Kloppenburg, Nashold, and Taylor, 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. Wendy Alison Nora appeals circuit court orders
dismissing her third-party complaint in this foreclosure action with prejudice.
Nora argues that the court erred as a matter of law in dismissing the third-party
complaint in the following respects: (1) determining that the third-party complaint
fails to state a claim on which relief can be granted and that Nora lacks standing;
(2) dismissing the third-party complaint against third-party defendants that had not
yet appeared in the action; and (3) not allowing Nora the opportunity to amend the
third-party complaint. Nora also argues that the court erroneously permitted
multiple parties to be represented by counsel for one of the third-party defendants
without a written waiver of conflict of interest. Nora further argues that the court
deprived Nora of her due process rights when it denied her the opportunity to
present oral argument as to the motion to dismiss that had been filed by one of the
third-party defendants and to which she had responded in writing, and when it
dismissed the third-party complaint as to all of the third-party defendants both
before she had an opportunity to respond to two other third-party defendants’
motions to dismiss and before still other third-party defendants appeared.

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¶2 We reject Nora’s arguments, and, accordingly, we affirm.

BACKGROUND

¶3 We present here pertinent contextual facts, procedural facts, and
facts alleged in the third-party complaint, which we must take as true for purposes
of reviewing the circuit court’s decision granting the motion to dismiss that
complaint.

¶4 In January 2006, Michael Nelson executed a promissory note
evidencing a loan for $230,800. The note was secured by a mortgage executed by
Michael and Carolyn Nelson on a property in Madison (generally, the subject
property). The Nelsons stopped making payments on the loan in 2011, and had
their debts discharged in bankruptcy in 2014.

¶5 In June 2019, the Nelsons transferred the subject property by
quitclaim deed to Nora and to a trust of which Nora was a trustee. In
consideration for the transfer, Nora promised to: maintain the property “until the
identity of the entity with a superior interest in the [s]ubject [p]roperty was
determined”; and preserve the tenancy of the Nelsons’ grandson in the subject
property. Nora subsequently transferred by quitclaim deed the trust’s interest in
the property to herself.

¶6 In August 2022, the Bank of New York Mellon f/k/a the Bank of
New York as Trustee for First Horizon Alternative Mortgage Securities Trust
2006-AA1 (generally, Bank of New York Mellon as Trustee) filed a complaint
against Nora and other defendants, seeking to foreclose on the subject property.
Attached to the complaint are purported copies of the note, endorsed in blank; the
mortgage; and several assignments of mortgage. In September 2022, Nora moved

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to dismiss the complaint for failure to state a claim and for failure to join
Nationstar Mortgage LLC (Nationstar) as a necessary party, and in October 2022,
Nora filed motions to stay the proceedings and for “particularized” discovery. The
circuit court denied all of these motions in January 2023.

¶7 After the circuit court denied Nora’s motion to dismiss, Nora filed
an answer, affirmative defenses, cross-claims, and counterclaims in February
2023. Bank of New York Mellon as Trustee moved to dismiss Nora’s
counterclaims, and the court granted the motion in October 2023. In April 2024,
Nora filed an amended answer, affirmative defenses, cross-claims, and
counterclaims, and the court, on the motion of Bank of New York Mellon as
Trustee, dismissed the amended counterclaims with prejudice in October 2024.
The October 2023 and October 2024 decisions are not challenged in this appeal.

¶8 Also in April 2024, Nora filed a third-party complaint against First
Horizon Alternative Mortgage Securities Trust 2006-AA1 (generally, First
Horizon Trust); Nationstar; Bank of New York Mellon in its corporate capacity;
First Horizon Bank; First Horizon Corporation; First Horizon Asset Securities,
Inc.; Credit Suisse Securities (USA) LLC; FHN Financial Securities Corp.; and
Nationwide Title Clearing LLC (generally, Nationwide Title).

¶9 Nora’s allegations in the third-party complaint include the following:
First Horizon Trust was not lawfully created; the subject property was not lawfully
transferred to First Horizon Trust if the trust was lawfully created; Bank of New
York Mellon as Trustee either lacked the authority to commence the foreclosure
action or did not authorize the commencement of the action; the third assignment
of mortgage attached to the complaint in the foreclosure action “may be void” as a
forged document or as based on forged documents, or for lack of authority or

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capacity; and Nationstar recorded false documents and directed its agents to record
false documents when acting as the agent of Bank of New York Mellon as
Trustee.

¶10 Nora’s third-party complaint alleges the following causes of action:
(1) declaration of interests in real estate; (2) common law quiet title; (3) slander of
title; (4) negligent supervision of employees and agents; (5) tortious interference
with prospective business opportunity; (6) violations of the Wisconsin Organized
Crime Control Act; and (7) declaratory judgment that the documents relied on in
Bank of New York Mellon as Trustee’s complaint are invalid.

¶11 Nationstar moved to dismiss Nora’s third-party complaint in July
2024 for failure to state a claim on which relief can be granted, pursuant to WIS.
STAT. § 802.06(2)(a)6. (2023-24).1 Nora responded to Nationstar’s motion to
dismiss on August 7, 2024, and Nationstar filed a reply on August 19. First
Horizon and Nationwide Title each filed separate motions to dismiss Nora’s third-
party complaint on August 26 and August 29, 2024, respectively.2 The circuit
court set a briefing schedule for First Horizon’s motion to dismiss and noted that
the matter would be decided on the briefs and record unless oral argument was
specifically requested by one of the parties.

1
All references to the Wisconsin Statutes are to the 2023-24 version.
2
Third-party defendants First Horizon Bank and First Horizon Asset Securities, Inc.
(collectively, First Horizon) jointly filed a motion to dismiss Nora’s third-party complaint. In its
motion to dismiss, First Horizon stated that it was incorrectly named as First Horizon Alternative
Mortgage Securities Trust, First Horizon Corporation, and FHN Financial Securities Corp.

The two remaining third-party defendants named in the third-party complaint, Bank of
New York Mellon in its corporate capacity and Credit Suisse Securities (USA) LLC, did not file
an appearance or a response either to the third-party complaint or to the various motions to
dismiss.

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No. 2024AP2552

¶12 On September 6, 2024, after Nationstar’s motion to dismiss was
fully briefed but before Nora’s brief responding to First Horizon’s motion to
dismiss was due, the circuit court held a hearing at which it heard oral arguments
on several motions not at issue in this appeal. Nora told the court at the beginning
of the hearing that she was “not prepared to proceed on anything other than the
motions that were scheduled for today at [her] request,” which did not include any
of the motions to dismiss her third-party complaint. She also said that she had
“not requested oral argument yet” on any of the motions to dismiss. After
considering the motions noticed for hearing, the court stated that Nationstar’s
motion to dismiss the third-party complaint was fully briefed and that the court
was “ready to give a decision on it.” Nora said that she “did not request oral
argument on Nationstar’s motion to dismiss,” and the court responded that it was
“offering [her] a chance if [she] want[ed] to. Otherwise, I’ll just give you my
decision.” Nora made some arguments for allowing her to amend her
counterclaims but did not specifically address the third-party complaint or
Nationstar’s motion to dismiss.

¶13 The circuit court then stated that it was dismissing all of the claims
in the third-party complaint with prejudice. The court also stated that granting
Nationstar’s motion to dismiss would result in granting First Horizon’s motion to
dismiss, because the basis for the court’s ruling resolved the issues briefed by all
of the motions to dismiss. Specifically, the court concluded that Nora’s third-party
complaint fails to state a claim on which relief can be granted. The court also
concluded that Nora lacks standing to challenge the transfer of the note or the
assignments of the mortgage. The court further stated that Nora had no right to
amend her third-party complaint because there was no way to correct the defects
identified in her pleading, implicitly as to all of the third-party defendants. The

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No. 2024AP2552

court then, in response to a statement by Nora, provided additional reasoning for
its dismissal of each claim in the third-party complaint.

¶14 The circuit court issued an order on September 17, 2024, granting
First Horizon’s motion to dismiss the third-party complaint with prejudice for the
reasons stated in the hearing, and an order on October 7, 2024, granting
Nationstar’s motion to dismiss the third-party complaint against all third-party
defendants with prejudice. Nora appeals.3

3
We note that the parties’ appellate briefs fail to comply with the following rules,
thereby creating an unnecessary burden on this high-volume court, and we remind counsel and
Nora of the obligation to comply with these rules.

Nora’s and Nationstar’s briefs do not comply with WIS. STAT. RULE 809.19(8)(bm),
which addresses the pagination of appellate briefs. See RULE 809.19(8)(bm) (providing that,
when paginating briefs, parties should use “Arabic numerals with sequential numbering starting
at ‘1’ on the cover”). As our supreme court explained when it amended the rule in 2021, the
pagination requirement ensures that the numbers on each page of the brief “will match … the
page header applied by the eFiling system, avoiding the confusion of having two different page
numbers” on every page of an electronically filed brief. S. CT. ORDER 20-07, 2021 WI 37, 397
Wis. 2d xiii (eff. July 1, 2021).

Nora’s briefs do not comply with WIS. STAT. RULE 809.19(8)(b)3.e., which addresses the
minimum margins of appellate briefs. Nora’s initial appellant’s brief also does not comply with
RULE 809.19(8)(b)3.c., which addresses line spacing of appellate briefs.

Nationstar’s brief does not comply with WIS. STAT. RULE 809.19(1)(d), which requires
that factual assertions be supported by proper citations to the record. Citations to the appendix
are insufficient. See RULE 809.19(1)(d). Nationstar also purports to “incorporate[] and restate[]”
in its brief the arguments in its motion to dismiss. “[T]his is not permissible appellate advocacy;
at a minimum, it creates the potential for exceeding the allowable length of briefs and violates the
rule addressing the required form of appellate arguments.” Bank of Am. NA v. Neis, 2013 WI
App 89, ¶11 n.8, 349 Wis. 2d 461, 835 N.W.2d 527 (citing State v. Flynn, 190 Wis. 2d 31, 58,
527 N.W.2d 343 (Ct. App. 1994) and RULE 809.19(1)(e)).

First Horizon’s brief refers to the parties by their status on appeal, and not by their names,
contrary to WIS. STAT. RULE 809.19(1)(i).

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No. 2024AP2552

DISCUSSION

¶15 We address Nora’s arguments in turn.

I. Dismissal of the Third-Party Complaint

A. Failure to State a Claim

¶16 Nora argues that the circuit court erred as a matter of law in
dismissing the third-party complaint based on failure to state a claim on which
relief can be granted and lack of standing. Because our conclusion that the third-
party complaint fails to state a claim is dispositive of this aspect of Nora’s
challenge to the circuit court’s dismissal of the third-party complaint, we do not
address Nora’s standing argument. See Barrows v. American Fam. Ins. Co., 2014
WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (“An appellate court
need not address every issue raised by the parties when one issue is dispositive.”).

¶17 This court reviews a circuit court’s decision on a motion to dismiss
for failure to state a claim de novo. CreditBox.com, LLC v. Weathers, 2023 WI
App 37, ¶14, 408 Wis. 2d 715, 993 N.W.2d 802.

“A motion to dismiss tests the legal sufficiency of the
complaint. Upon a motion to dismiss, we accept as true all
facts well-pleaded in the complaint and the reasonable
inferences therefrom. However, a court cannot add facts in
the process of construing a complaint. Moreover, legal
conclusions asserted in a complaint are not accepted, and
legal conclusions are insufficient to withstand a motion to
dismiss. Therefore, our focus is on factual allegations
made in the complaint. We determine whether the facts
alleged state a claim for relief, which is a legal question
that we review independently.”

Badgerland Restoration & Remodeling, Inc. v. Federated Mut. Ins. Co., 2024
WI App 36, ¶12, 412 Wis. 2d 806, 8 N.W.3d 877 (quoted source omitted). In

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No. 2024AP2552

other words, to survive a motion to dismiss, “a complaint must plead facts, which
if true, would entitle the plaintiff to relief.” Data Key Partners v. Permira
Advisers LLC, 2014 WI 86, ¶21, 356 Wis. 2d 665, 849 N.W.2d 693.

¶18 “The complaint’s sufficiency depends on the substantive law that
underlies the claim,” Bank of New York Mellon v. Klomsten, 2018 WI App 25,
¶21, 381 Wis. 2d 218, 911 N.W.2d 364, because “it is the substantive law that
drives what facts must be pled,” Data Key, 356 Wis. 2d 665, ¶31. “‘It is the
sufficiency of the facts alleged that control[s] the determination of whether a claim
for relief is properly plead.’” Cattau v. National Ins. Servs. of Wis., Inc., 2019
WI 46, ¶6, 386 Wis. 2d 515, 926 N.W.2d 756 (quoting Strid v. Converse, 111
Wis. 2d 418, 422-23, 331 N.W.2d 350 (1983)). “For the purposes of this analysis,
we cannot permit [a claimant] to rely on hypothetical, speculative ‘facts’ that
might or might not be supplied by the discovery process.” Doe 67C v.
Archdiocese of Milwaukee, 2005 WI 123, ¶46, 284 Wis. 2d 307, 700 N.W.2d 180.

¶19 Nora does not develop any arguments in her appellate briefs
specifically explaining how the allegations in the third-party complaint suffice to
satisfy the elements of each claim.4 We could reject on this basis this aspect of her
challenge to the dismissal of the third-party complaint. See State v. Pettit, 171

4
Rather, Nora argues that the circuit court made certain errors as it issued its oral ruling,
separate from whether the allegations satisfy the elements of each claim in the third-party
complaint. We do not address these arguments given our de novo review. In addition, we note
that some of Nora’s arguments misrepresent the court’s ruling. For example, Nora asserts that the
court “erred in concluding that documents attached to the [t]hird-[p]arty [c]omplaint and
incorporated by reference therein … cannot be relied upon to avoid dismissal of the [t]hird-
[p]arty [c]omplaint for failure to state a claim.” However, the court did not determine that Nora
could not cite, and the court could not consider, the documents attached to the third-party
complaint; it explained that “[s]imply referring to a bunch of documents and saying this is all a
scheme, and not explaining it and not connecting all the dots in a way that makes any sense, is not
enough.”

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No. 2024AP2552

Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (explaining that this court
need not consider arguments that are undeveloped). However, for the sake of
completeness and because our review is de novo, we now independently review
each of the seven claims in the third-party complaint and explain why it fails to
state a claim on which relief can be granted.

1. Declaration of Interests in Real Estate

¶20 The third-party complaint seeks declaratory relief under WIS. STAT.
§ 841.01, which provides that “[a]ny person claiming an interest in real property
may maintain an action against any person claiming a conflicting interest, and may
demand a declaration of interests.” § 841.01(1). Under that statute,

[t]he complaint shall describe the real property, the interest
of the plaintiff and how the plaintiff acquired the interest,
the interest of each person claiming an interest known to be
adverse to the plaintiff, including unborn and unknown
persons, and demand that the interest of the plaintiff be
established against adverse claims.

WIS. STAT. § 841.02.

¶21 In support of this claim for relief, the third-party complaint alleges
as follows. Bank of New York Mellon as Trustee, the plaintiff in the underlying
foreclosure action, alleges that it is in possession of the original note through its
attorneys, which gives it the right to foreclose on the subject property. But, First
Horizon Bank “should be in possession” of the original note under the terms of the
agreement governing First Horizon Trust, and First Horizon Bank “has a duty to
assure that documents being presented by Nationstar and its agents on behalf of
The Bank of New York Mellon as Trustee of [First Horizon] Trust … are genuine
and authentic.” In addition, various other third-party defendants participated in a
“securitization scheme” in which they “fraudulently induced the Nelsons to sign

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No. 2024AP2552

the [m]ortgage … by failing to disclose the identity of the entity or entities which
are the actual source of the funding of the transaction, … or the intended use of the
… [n]ote and [m]ortgage in a securitization scheme.” Finally, various third-party
defendants “may have interests” in the subject property “through purchase and re-
purchase agreements and hypothecation and re-hypothecation of the [notes and
mortgages or deeds of trust].”

¶22 As stated, the third-party complaint must describe “the interest of
each person claiming an interest known to be adverse to the plaintiff.” WIS. STAT.
§ 841.02. The third-party complaint does not satisfy this requirement. First, the
third-party complaint does not allege facts showing that any of the third-party
defendants claims an interest in the subject property. Second, the third-party
complaint merely alleges that some of the third-party defendants “may have
interests,” but does not describe what those interests are. More specifically, the
third-party complaint does not describe what interest each third-party defendant
has in the subject property as a result of its alleged fraudulent participation in a
securitization scheme. Nor does the third-party complaint describe what interest
First Horizon Bank has in the subject property, or how its alleged obligation to
ensure that the documents relied on by Bank of New York Mellon as Trustee are
authentic gives it any such interest.5 And, while the third-party complaint alleges

5
Nora refers to evidence outside of the third-party complaint to show that First Horizon
Bank “is responsible for” bringing the foreclosure action. Nora also asserts that she would have
objected to First Horizon’s argument in its motion to dismiss that it does not have any interest in
the subject property, as well as pointed to the evidence referenced in her brief, if she had been
given an opportunity to respond to First Horizon’s motion to dismiss. However, we rely neither
on material outside of the third-party complaint nor on First Horizon’s argument in the circuit
court, but on the allegations in the third-party complaint. As explained above, Nora does not
point to, and we do not discern, allegations in the third-party complaint showing that First
Horizon claims or has an interest in the subject property beyond general speculation.

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No. 2024AP2552

that Bank of New York Mellon as Trustee has alleged that it is the holder of the
note with the right to foreclose on the subject property, the complaint names as a
third-party defendant Bank of New York Mellon in its corporate capacity, not in
its capacity as trustee. At most, these allegations establish only a speculative
suggestion that some third-party defendants may have some kind of interest in the
property. This is insufficient to state a claim for a declaration of interests on
which relief can be granted, and the circuit court properly dismissed this claim.

2. Quiet Title

¶23 The third-party complaint seeks to quiet title to the subject property
pursuant to WIS. STAT. § 895.01(1)(am)13. That statute provides that equitable
actions “to quiet the title to real estate” survive in Wisconsin law.
§ 895.01(1)(am)13. Such equitable actions were referred to in the common law as
“quia timet,” Maxon v. Ayers, 28 Wis. 612, 614 (1871), or actions to “remove a
cloud” on the title to real estate, Burhop v. City of Milwaukee, 18 Wis. 431, 433
(1864). To maintain an action for common law quia timet, “there must exist an
apparent [e]ncumbrance upon the land,” and the plaintiff must have no adequate
remedy at law. Pier v. City of Fond du Lac, 38 Wis. 470, 480-81 (1875). To
show the “apparent [e]ncumbrance upon the land,” the plaintiff must allege facts
showing that the defendant claims an interest in the land. See Mitchell v. Lyons,
163 Wis. 399, 402, 158 N.W. 70 (1916) (a person who claims no interest or title in
a property is not a proper party to a quiet title action).6

6
See also Action, BLACK’S LAW DICTIONARY (12th ed. 2024) (defining an “action to
quiet title” as “[a] proceeding to establish a plaintiff’s title to land by compelling the adverse
claimant to establish a claim or be forever estopped from asserting it”).

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No. 2024AP2552

¶24 Here, as stated above, the third-party complaint contains no
allegation that any of the third-party defendants claims an interest in the subject
property. Nor, as also explained above, to the extent that a quiet title claim shares
the same elements as a declaration of interests claim, is there any allegation
beyond speculation describing the interest in or encumbrance on the subject
property that any of the third-party defendants has, even if not claimed. See
Village of Hobart v. Oneida Tribe of Indians of Wis., 2007 WI App 180, ¶12, 303
Wis. 2d 761, 736 N.W.2d 896 (“Actions for a declaration of interests were
formerly known as quiet title actions.”). For these reasons, the third-party
complaint fails to state a claim of common law quiet title on which relief can be
granted, and the circuit court properly dismissed this claim.

3. Slander of Title

¶25 The third-party complaint brings a claim for slander of title pursuant
to WIS. STAT. § 706.13. Section 706.13 provides that

any person who submits for … recording[] any lien, claim
of lien, lis pendens, writ of attachment, financing
statement[,] or any other instrument relating to a security
interest in or the title to real or personal property, and who
knows or should have known that the contents or any part
of the contents of the instrument are false, a sham or
frivolous, is liable in tort to any person interested in the
property whose title is thereby impaired, for punitive
damages of $1,000 plus any actual damages caused by the
filing, entering or recording.

§ 706.13(1). In other words, to state a claim for slander of title, a party must
allege that: (1) a person submitted a lis pendens or “other instrument relating to a
security interest in or the title to real … property” for recording; (2) that person
knew or should have known that some or all of the contents of the instrument “are
false, a sham[,] or frivolous”; (3) the party claiming slander of title has an interest

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in the property; and (4) that party’s title was impaired by the recording of the
instrument. See § 706.13(1).

¶26 The third-party complaint alleges that Nora obtained an interest in
the subject property in June 2019, and that the claim for slander of title is based on
the recording of the second and third assignments of mortgage and the second and
third lis pendens. We make the following reasonable inferences from the
allegations in the third-party complaint regarding, in chronological order, the
second assignment of mortgage and the second lis pendens, and the third
assignment of mortgage and the third lis pendens.

¶27 The second assignment of mortgage, recorded on May 22, 2014,
purports to assign the mortgage from First Horizon Home Loans, a Division of
First Tennessee Bank National Association, by Nationstar Mortgage LLC, its
attorney-in-fact, to Bank of New York Mellon as Trustee. This assignment “was
purportedly executed by an individual identified as Tyler Driver in the claimed
capacity of ‘Vice President of Loan Documentation’” for Nationstar, but Driver
was actually an employee of Nationwide Title. “[I]t appears that Nationstar
directed the creation of [this assignment] for the purpose of having [the
assignment] recorded in the public land records in an effort to deceive the public
as to the substance and true nature of the underlying transaction.” The second lis
pendens was recorded on September 24, 2019, by Gray & Associates, LLP. This
lis pendens was based on the false second assignment of mortgage that had been
fraudulently executed by an employee of Nationwide Title at the direction of
Nationstar.

¶28 The third assignment of mortgage was recorded on June 8, 2022.
This assignment of mortgage had been fraudulently executed on behalf of

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No. 2024AP2552

Nationstar, as Bank of New York Mellon as Trustee’s attorney-in-fact. The
person who executed the third assignment of mortgage did not hold the position
stated on that instrument, and Nationstar was not Bank of New York Mellon as
Trustee’s attorney-in-fact. The third lis pendens was recorded by Phillip A.
Norman, P.C., on August 19, 2022. This lis pendens was based on the false third
assignment of mortgage.

¶29 When recording the second and third lis pendens, Gray &
Associates, LLP, and Phillip A. Norman, P.C., respectively, were acting as agents
of Nationstar. In creating the false assignments of mortgage on which the second
and third lis pendens were based, Nationstar was acting as the agent of Bank of
New York Mellon as Trustee.

¶30 As an initial matter, the third-party complaint does not allege actions
by any third-party defendants other than Nationstar. For this reason, the complaint
fails to state a slander-of-title claim against the remaining third-party defendants,
and Nora’s claim against those parties was properly dismissed.

¶31 We now turn to the third-party complaint’s allegations, and any
reasonable inferences that can be derived from these allegations, with respect to
Nationstar. As stated, one of the elements of a slander-of-title claim is that the
claimant’s “title is thereby impaired” by the recording of a false, sham, or
frivolous instrument. WIS. STAT. § 706.13(1). Neither statutes nor case law
illuminate what it means to “impair” a person’s “title.” Consequently, we turn to
Black’s Law Dictionary, which includes an apt definition of “impair” as “[t]o
diminish the value of (property or a property right),” Impair, BLACK’S LAW
DICTIONARY (12th ed. 2024), and “title” as “[t]he union of all elements …
constituting the legal right to control and dispose of property,” Title, BLACK’S

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LAW DICTIONARY (12th ed. 2024). Black’s Law Dictionary also contains an apt
definition of “slander of title” as “[a] false statement, made orally or in writing,
that casts doubt on another person’s ownership of property and thereby causing
damage or loss.” Slander of Title, BLACK’S LAW DICTIONARY (12th ed. 2024).
We now consider whether the third-party complaint alleges that Nationstar’s
recording of the assignments of mortgage and lis pendens diminished the value of
Nora’s legal right to control and dispose of her property, causing damage or loss.

¶32 The third-party complaint alleges that Nora suffered actual damages
of “costs and expenses in defending against the second and third attempted
foreclosure actions and her lost prospective business opportunity to engage in the
best and most profitable use of the [s]ubject [p]roperty.” However, the allegations
in the complaint do not connect the recording of either the assignments of
mortgage or the lis pendens in any way to these alleged injuries. Any alleged
injury Nora suffered by “defending” against foreclosure was independently caused
by the filing of “the second and third attempted foreclosure actions,” not by the
recording of the lis pendens, which merely provided notice of the pending
foreclosure actions. See Gaugert v. Duve, 2001 WI 83, ¶24, 244 Wis. 2d 691, 628
N.W.2d 861 (explaining that the statutory requirement to file a lis pendens is
“intended to provide the means for third parties to obtain notice of the pending
litigation and the court’s power to enforce the outcome of that dispute against a
subsequent purchaser or encumbrancer”). To the extent that the allegations about
the lis pendens mean to challenge the validity of the foreclosure action by Bank of
New York Mellon as Trustee, Nora remains free to prove those allegations in
defense against that action.

¶33 With respect to the assignments of mortgage, the third-party
complaint also fails to connect the recording of those instruments to any

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diminishment in the value of Nora’s title. See WIS. STAT. § 706.13 (defining
slander of title as an act that impairs a party’s title); Impair, BLACK’S LAW
DICTIONARY (12th ed. 2024) (“[t]o diminish the value of (property or a property
right)”). The third-party complaint alleges that Nora took title to the subject
property with knowledge of the mortgage lien on the property and does not allege
that the assignments of mortgage in any way impaired her title beyond any
impairment caused by the mortgage she knew encumbered the subject property.
Again, to the extent that the allegations about the assignments of mortgage mean
to challenge the validity of the foreclosure action by Bank of New York Mellon as
Trustee, Nora remains free to prove those allegations in defense against that
action.

¶34 The failure to allege facts showing impairment of title caused by the
recording of the second and third assignments of mortgage and second and third
lis pendens is fatal to the slander-of-title claim. For this reason, the third-party
complaint fails to state a claim for slander of title on which relief can be granted,
and the circuit court properly dismissed this claim.

4. Negligent Supervision of Employees and Agents

¶35 The third-party complaint alleges that the third-party defendants
negligently supervised their employees or agents. To state a claim for negligent
supervision,

a plaintiff must show: (1) the employer owed a duty of care
to the plaintiff, (2) the employer breached its duty, (3) a
wrongful act or omission of an employee was a cause-in-
fact of the plaintiff’s injury, and (4) an “act or omission of
the employer was a cause-in-fact of the wrongful act of the
employee.”

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No. 2024AP2552

Hansen v. Texas Roadhouse, Inc., 2013 WI App 2, ¶18, 345 Wis. 2d 669, 827
N.W.2d 99 (2012) (quoting Doe 67C, 284 Wis. 2d 307, ¶43). A key analysis
within negligent supervision is the issue of causation, which must establish “a
nexus between the negligent … supervision and the act of the employee.” Miller
v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 262, 580 N.W.2d 233 (1998).
“[I]ntent and negligence are mutually exclusive and one cannot intend to injure
someone by negligent conduct.” State v. Asfoor, 75 Wis. 2d 411, 428, 249
N.W.2d 529 (1977); cf. Talley v. Mustafa, 2018 WI 47, ¶¶20, 33, 381 Wis. 2d
393, 911 N.W.2d 55 (“A plaintiff’s attempt to reconfigure a claim of assault and
battery as a claim of negligence will not transform an intentional act into an
accidental one.”); WIS JI—CIVIL 1383 (for negligent supervision claim, jury must
find that employer “was negligent” by, “without intending to do harm, do[ing]
something … with respect to the … supervision … of an employee”).

¶36 The third-party complaint alleges that the third-party defendants

owe a duty [to] supervise their employees and agents to
prevent the recording of documents forged and uttered in
violation of WIS. STAT. § 943.38(1) and (2) with the Dane
County Register of Deeds … [and] to prevent production of
copies of documents, including assignments of mortgage
and forged documents purporting to be copies of original
[n]otes in court proceedings which are forged and uttered in
violation of … § 943.38(1) and (2) with the Dane County
Register of Deeds.

The third-party complaint also alleges that

[t]he recording and uttering of forged documents in the
public land records and in court proceedings involving the
[s]ubject [p]roperty has injured [Nora] by causing her to
have to engage in litigation in the [s]econd and [t]hird
[f]oreclosure [a]ctions, interfering with the peaceful
enjoyment of the [s]ubject [p]roperty and preventing her
from putting the [s]ubject [p]roperty to its best and highest
use.

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No. 2024AP2552

¶37 The third-party complaint further alleges that Nationstar and
Nationwide Title directed their employees to create, execute, and record false,
forged, or otherwise invalid assignments of mortgage. Specifically, the third-party
complaint alleges that Nationstar and Nationwide Title directed their employees to
execute the assignments of mortgage as employees of companies they did not
work for, and therefore that those employees did not have authority to execute
those assignments of mortgage.

¶38 It is apparent from these allegations that the negligent supervision
claim is directed only at Nationstar and Nationwide Title. It is further apparent
from these allegations that the third-party complaint alleges not negligent
supervision on the part of Nationstar or Nationwide Title, but rather intentional
wrongful conduct by Nationstar and Nationwide Title. For this reason, the third-
party complaint fails to state a claim for negligent supervision of employees or
agents on which relief can be granted, and the circuit court properly dismissed this
claim.

5. Tortious Interference with Prospective Business Opportunity

¶39 The third-party complaint alleges that “[t]he creation, production,
recording and uttering of forged documents into the Dane County Register of
Deeds related to the [s]ubject [p]roperty has interfered with [Nora’s] prospective
business opportunity to her detriment or damage.” Nora points to no statute or
published case law recognizing a claim for “tortious interference with prospective
business opportunity” in so many words, and our research reveals none, and so we
analyze whether the third-party complaint states a claim for what we understand to
be a claim of tortious interference with a prospective contractual relationship. See
Hubbard v. Neuman, 2024 WI App 22, ¶16, 411 Wis. 2d 586, 5 N.W.3d 852

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No. 2024AP2552

(“[W]hat controls whether a complaint properly states a claim for relief are the
factual allegations pled in the complaint, and not the causes of action that are
explicitly identified in the complaint.”). The elements of that claim are: “‘(1) the
plaintiff had a contract or prospective contractual relationship with a third party;
(2) the defendant interfered with the relationship; (3) the interference was
intentional; (4) a causal connection exists between the interference and the
damages; and (5) the defendant was not justified or privileged to interfere.’”
Burbank Grease Servs., LLC v. Sokolowski, 2006 WI 103, ¶44, 294 Wis. 2d 274,
717 N.W.2d 781 (quoted source omitted).

¶40 The third-party complaint makes no allegations that Nora had a
“prospective contractual relationship with a third party,” or, using the terms of the
complaint, a prospective business opportunity, at the time of the alleged actions by
the third-party defendants in “[t]he creation, production, recording and uttering of
forged documents” regarding the subject property. Because the third-party
complaint fails to satisfy this element of the claim, we need not consider the
remaining elements. Accordingly, the third-party complaint fails to state a claim
for tortious interference with a prospective business opportunity or contractual
relationship on which relief can be granted, and the circuit court properly
dismissed this claim.

6. Wisconsin Organized Crime Control Act

¶41 The third-party complaint alleges that the third-party defendants
“have combined to operate an enterprise in violation of WIS. STAT. § 946.82(2) to
foreclose on the [s]ubject [p]roperty” and “have engaged in a pattern of
racketeering conduct in violation of … § 946.82(3) since October 24, 2011 when
the [f]irst [f]oreclosure [a]ction was commenced by agents of First Horizon

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No. 2024AP2552

Bank’s predecessor in interest using forged and uttering forged documents in
violation of WIS. STAT. § 943.38(1) and (2).” The third-party complaint further
alleges that Nora “has been injured by the racketeering enterprise by which [Bank
of New York Mellon as Trustee] and [t]hird-[p]arty [d]efendants are operating in
concert to damage her interests in the [s]ubject [p]roperty in an amount to be
proven at trial.”

¶42 The Wisconsin Organized Crime Control Act specifically provides a
civil cause of action to a private plaintiff “who is injured by reason of any
violation of [WIS. STAT. §] 946.83.” WIS. STAT. § 946.87(4).

¶43 WISCONSIN STAT. § 946.83(2) and (3) provide:

(2) No person, through a pattern of racketeering activity,
may acquire or maintain, directly or indirectly, any interest
in or control of any enterprise or real property.

(3) No person employed by, or associated with, any
enterprise may conduct or participate, directly or indirectly,
in the enterprise through a pattern of racketeering activity.

¶44 A “pattern of racketeering activity” is defined as

engaging in at least 3 incidents of racketeering activity that
have the same or similar intents, results, accomplices,
victims or methods of commission or otherwise are
interrelated by distinguishing characteristics, provided …
that the last of the incidents occurred within 7 years after
the first incident of racketeering activity. Acts occurring at
the same time and place which may form the basis for
crimes punishable under more than one statutory provision
may count for only one incident of racketeering activity.

WIS. STAT. § 946.82(3). “Racketeering activity” includes, pertinent here, “the
attempt, conspiracy to commit, or commission of any of the felonies specified in
… [WIS. STAT. §] 943.38.” § 946.82(4).

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No. 2024AP2552

¶45 WISCONSIN STAT. § 943.38, “Forgery,” provides:

(1) Whoever with intent to defraud falsely makes or alters a
writing or object of any of the following kinds so that it
purports to have been made by another, or at another time,
or with different provisions, or by authority of one who did
not give such authority, is guilty of a Class H felony:

(a) A writing or object whereby legal rights or obligations
are created, terminated[,] or transferred, or any writing
commonly relied upon in business or commercial
transactions as evidence of debt or property rights[.]

….

(2) Whoever utters as genuine or possesses with intent to
utter as false or as genuine any forged writing or object
mentioned in sub. (1), knowing it to have been thus falsely
made or altered, is guilty of a Class H felony.

¶46 The third-party complaint contains the following allegations in
support of the Wisconsin Organized Crime Control Act claim.

¶47 The first assignment of mortgage “purports to have been executed on
December 8, 2011 by Patrick J. Bowman in the capacity of Assistant Secretary of
Mortgage Registration Systems, Inc. when … Bowman was actually an employee
of Nationstar, according to his self-report on linkedin.com.”

¶48 On May 21, 2014, the second assignment of mortgage “was
purportedly executed by an individual identified as Tyler Driver in the claimed
capacity of ‘Vice President of Loan Documentation’” on behalf of “First Horizon
Home Loans, a Division of First Tennessee Bank National Association, by
Nationstar Mortgage LLC, its Attorney-In-Fact,” when “‘First Horizon Home
Loans, a Division of First Tennessee Bank National Association’ was not the
assignee named in” the first assignment of mortgage. Apparently inconsistently,
the third-party complaint also alleges that the assignee named in the first

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No. 2024AP2552

assignment of mortgage is “‘First Horizon Home Loans, a Division of First Tenn
National Association.” Continuing with the second assignment of mortgage, the
third-party complaint further alleges that “Tyler Driver was not Vice President of
Loan Documentation for Nationstar Mortgage LLC but was, in fact, employed by
Nationwide Title Clearing, LLC.” The second assignment of mortgage was
recorded with the Dane County Register of Deeds on May 22, 2014.

¶49 On June 2, 2022, the third assignment of mortgage was “created and
executed by Tsedale Alemu purporting to be Vice President of ‘The Bank of New
York Mellon F/K/A The Bank of New York as Trustee … by Nationstar Mortgage
LLC its Attorney-in-Fact,” at the direction of Nationstar. “Alemu was not a Vice
President of The Bank of New York Mellon … as Trustee … and Nationstar was
not Attorney-in-Fact for The Bank of New York Mellon … as Trustee … because
there is no entity in existence known as” the trust for which Bank of New York
Mellon is listed as trustee. The third assignment of mortgage was recorded with
the Dane County Register of Deeds on June 8, 2022.

¶50 Because a pattern of racketeering activity is defined as three or more
incidents of racketeering activity occurring within seven years of each other, WIS.
STAT. § 946.82(3), not all of the actions alleged by Nora can be considered. The
only three pertinent actions alleged in the third-party complaint that occurred
within seven years of each other are: (1) the execution of the first assignment of
mortgage on December 8, 2011; (2) the execution of the second assignment of
mortgage on May 21, 2014; and (3) the recording of the second assignment of
mortgage on May 22, 2014. The third assignment of mortgage was allegedly
created in June 2022, over eight years after the second assignment of mortgage
was alleged to have been recorded, and thus cannot be considered for purposes of

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No. 2024AP2552

determining whether the third-party complaint sufficiently alleges a violation of
the Wisconsin Organized Crime Control Act. See § 946.82(3).

¶51 A civil action under the Wisconsin Organized Crime Control Act
must be commenced within six years “after a violation under [WIS. STAT.
§§] 946.80 to 946.88 terminates or the cause of action accrues.” § 946.88(1). The
only alleged pattern of racketeering activity alleged in the third-party complaint
terminated in May 2014. Nora did not commence this action until April 2024,
well past the end of six-year statute of limitations. Accordingly, the third-party
complaint fails to state a Wisconsin Organized Crime Control Act claim on which
relief can be granted, and the circuit court properly dismissed this claim.7 See Enz
v. Duke Energy Renewable Servs., Inc., 2023 WI App 24, ¶38, 407 Wis. 2d 728,
991 N.W.2d 423 (statute of limitations may be considered at the motion to dismiss
stage).

7. Declaratory Judgment

¶52 The third-party complaint asserts a claim for declaratory judgment,
pursuant to WIS. STAT. § 806.04, asking that the circuit court enter a judgment
declaring that “any or all of the documents” that the Bank of New York Mellon as
Trustee relies on in its complaint in the underlying foreclosure action are “false,
fraudulent, forged or otherwise invalid.”

7
We take no position on whether the allegations in the third-party complaint with
respect to the execution and recording of the first and second assignments of mortgage would
suffice to state a claim under the Wisconsin Organized Crime Control Act if they did not fall
outside of the statute of limitations.

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No. 2024AP2552

¶53 Generally, “a declaratory judgment is fitting when a controversy is
justiciable.” Putnam v. Time Warner Cable of Se. Wis., 2002 WI 108, ¶41, 255
Wis. 2d 447, 649 N.W.2d 626. A controversy is justiciable when: (1) “a claim of
right is asserted against one who has an interest in contesting it”; (2) the
controversy is “between persons whose interests are adverse”; (3) the party
seeking a declaratory judgment has “a legally protectible interest”; and (4) the
issue is “ripe for judicial determination.” Id. However, “declaratory relief is
disfavored if there is a ‘speedy, effective and adequate’ alternative remedy.”
Voters with Facts v. City of Eau Claire, 2017 WI App 35, ¶35, 376 Wis. 2d 479,
899 N.W.2d 706 (quoting Lister v. Board of Regents of Univ. of Wis. Sys., 72
Wis. 2d 282, 307-08, 240 N.W.2d 610 (1976)).

¶54 Here, the only party that “has an interest in contesting” the claim that
the note and assignments of mortgage are invalid is the plaintiff in the foreclosure
action, Bank of New York Mellon as Trustee. See Putnam, 255 Wis. 2d 447, ¶41
(explaining that declaratory judgment may be appropriate when “a claim of right is
asserted against one who has an interest in contesting it”). But, the third-party
complaint does not name Bank of New York Mellon as Trustee as a third-party
defendant, and does not allege facts showing that any of the third-party defendants
claims any interest in the subject property. Accordingly, there is no justiciable
controversy between Nora and the third-party defendants. Rather, to the extent
that these allegations mean to challenge the validity of the foreclosure action
brought by Bank of New York Mellon as Trustee, Nora remains free to prove
them in defense against that action.

¶55 Further, it is questionable whether the third-party complaint alleges
that Nora has a legally protectible interest in determining the validity of the
assignments of mortgage, as only the note has legal significance for purposes of

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No. 2024AP2552

the foreclosure action. See Dow Fam., LLC v. PHH Mortg. Corp., 2013 WI App
114, ¶26, 350 Wis. 2d 411, 838 N.W.2d 119, aff’d, 2014 WI 56, 354 Wis. 2d 796,
848 N.W.2d 728 (plaintiff “did not need to prove a written assignment of
mortgage” when it possessed the note); Klomsten, 381 Wis. 2d 218, ¶22 (the
holder of the note may show that it is entitled to foreclose on the mortgage
securing the note); Dow Fam., LLC v. PHH Mortg. Corp., 2014 WI 56, ¶47, 354
Wis. 2d 796, 848 N.W.2d 728 (explaining that “a mortgage automatically passes
by operation of law upon the assignment of a mortgage note” under the doctrine of
equitable assignment). If, under the doctrine of equitable assignment, the
assignments of mortgage are irrelevant to the foreclosure, then Nora has no legally
protectible interest in determining their validity, and thus the claim for declaratory
judgment fails to state claim on which relief can be granted on this basis as well.
See Putnam, 255 Wis. 2d 447, ¶41 (declaratory judgment is appropriate only
when the party seeking a declaratory judgment has “a legally protectible interest”).

¶56 In addition, Nora has a “speedy, effective and adequate” remedy
available to determine the validity of the documents attached to Bank of New
York Mellon as Trustee’s complaint. See Lister, 72 Wis. 2d at 307-08. As stated,
Nora denied the validity of the documents relied on by Bank of New York Mellon
as Trustee in her amended answer to Bank of New York Mellon as Trustee’s
complaint. As part of adjudicating the foreclosure action, the circuit court will be
required to determine whether Bank of New York Mellon as Trustee is a
qualifying holder of the note, and whether the note is valid. See Klomsten, 381
Wis. 2d 218, ¶¶22-23, 32 (party seeking to foreclose “must prove that it has the
right to enforce the … note” and “that it is in possession of the original note”). To
the extent that the assignments of mortgage attached to the complaint have any

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No. 2024AP2552

bearing on the right to foreclose on the subject property, their validity may be
determined in the foreclosure action as well.

¶57 For all these reasons, the third-party complaint fails to state a
declaratory judgment claim on which relief can be granted, and the circuit court
properly dismissed this claim.

B. Dismissal Against Non-Appearing Parties

¶58 Nora argues that the circuit court erred when it dismissed the third-
party complaint against third-party defendants that had not yet appeared in the
action.

¶59 Nora cites two cases in support of her argument: Wengerd v.
Rinehart, 114 Wis. 2d 575, 587, 338 N.W.2d 861 (Ct. App. 1983), and Bill
Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983). However, Nora
does not explain how either case supports her argument, and our independent
review reveals that they do not.

¶60 In Wengerd, this court concluded that orders “not made on notice”
were “defective” because they granted relief that was not sought by the motion,
and because “[d]ue process requires that an individual whose rights will be
affected by judicial decree be given notice reasonably calculated to inform the
person of the proceeding and to afford that person an opportunity to object and
defend [that person’s] rights.” Wengerd, 114 Wis. 2d at 587. Here, the order of
dismissal granted by the circuit court was made on notice: Nationstar’s motion to
dismiss specifically requested dismissal of Nora’s third-party complaint “against
third parties” “in its entirety,” and Nora filed a brief opposing that motion. In

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No. 2024AP2552

addition, Nora was given an opportunity to argue against the dismissal of the third-
party complaint at the motion hearing.

¶61 The other case that Nora cites, Bill Johnson’s Restaurants,
concerned whether the National Labor Relations Board can halt the prosecution of
a state-court lawsuit “brought by an employer to retaliate against employees for
exercising federally-protected labor rights, without also finding that the suit lacks
a reasonable basis in fact or law.” Bill Johnson’s Restaurants, 461 U.S. at 733.
Reasoning that “the right of access to the courts is an aspect of the First
Amendment right to petition the Government for redress of grievances,” the
United States Supreme Court concluded that it could not. Id. at 741, 743. Here,
Nora was given access to the courts, and the circuit court dismissed the third-party
complaint on several grounds including that it fails to state a claim on which relief
can be granted. Nora does not explain how the dismissal of the third-party
complaint against non-appearing defendants violated her First Amendment rights.
Both Wengerd and Bill Johnson’s Restaurants are inapposite.

¶62 We find further support for our conclusion that the circuit court’s
dismissal of the third-party complaint with respect to all parties was proper in Enz,
407 Wis. 2d 728, ¶1 n.1. In Enz, which involved two defendants, only one of
whom filed a motion to dismiss, this court concluded that the circuit court’s
dismissal of the complaint “in its entirety” applied to both defendants. Id. Enz is
not exactly on point because both parties in Enz had appeared in the action.
However, Enz supports the idea that circuit courts can dismiss a complaint “in its
entirety” with respect to all parties, even those who have not themselves filed or
joined a motion to dismiss. See id.

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No. 2024AP2552

¶63 For all these reasons, we reject Nora’s argument that the circuit court
erred when it dismissed the third-party complaint against third-party defendants
that had not yet appeared in the action.

C. Opportunity to Amend

¶64 Nora asserts that she “should be permitted a final opportunity to
amend her [t]hird-[p]arty [c]omplaint” and implicitly argues that the circuit court
erred in dismissing the third-party complaint without giving her that opportunity.
Generally, a circuit court’s decision to grant or deny a motion to amend a
complaint is discretionary. Mach v. Allison, 2003 WI App 11, ¶20, 259 Wis. 2d
686, 656 N.W.2d 766 (2002). However, here, Nora did not file a motion to amend
the third-party complaint in the circuit court. To the extent that Nora attributes
error to the court, she has forfeited that issue by not raising it first in the circuit
court. See Village of Trempealeau v. Mikrut, 2004 WI 79, ¶15, 273 Wis. 2d 76,
681 N.W.2d 190 (“‘Issues that are not preserved at the circuit court … generally
will not be considered on appeal.’” (quoted source omitted)). To the extent that
Nora asks that this court remand with directions to order the circuit court to allow
her to amend the third-party complaint, we do not have the authority to do so. See
Vlies v. Brookman, 2005 WI App 158, ¶33, 285 Wis. 2d 411, 701 N.W.2d 642
(“The function of an appellate court is not to exercise discretion in the first place,
but to review the circuit court’s exercise of discretion.”). For these reasons,
Nora’s arguments on this issue fail.

II. Conflict of Interest

¶65 Nora argues that the circuit court erred by declining to address her
argument that the same counsel improperly represented multiple parties without a
written waiver of conflict of interest. Typically, a circuit court’s decision on

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No. 2024AP2552

whether to disqualify counsel is reviewed for an erroneous exercise of discretion.
Batchelor v. Batchelor, 213 Wis. 2d 251, 260, 570 N.W.2d 568 (Ct. App. 1997).

¶66 In the circuit court, Nora indicated her opposition to the multiple
representation of Nationstar, Nationwide Title, and Bank of New York Mellon as
Trustee in her brief responding to Nationstar’s motion to dismiss the third-party
complaint, stating that there was no written waiver of conflict of interest and that
she “reserves her right to seek disqualification” of the firm and counsel. In
addition, at the hearing at which the court granted Nationstar’s motion to dismiss,
Nora stated: “The ground[] that I assert is that … Nationstar actually retained the
counsel that is claiming to represent the purported plaintiff, and has again
appeared before this court on behalf of other parties. And that is a conflict of
interest on its face, which I would have briefed.” In the circuit court, Nora cited
SCR 20:1.7 and 20:1.8 of the Wisconsin Code of Professional Conduct in support
of her argument. However, “[v]iolations of the Code of Professional Conduct are
determined only by means of disciplinary action”; accordingly, the court
appropriately declined to address Nora’s argument. See Foley-Ciccantelli v.
Bishop’s Grove Condo. Ass’n, Inc., 2011 WI 36, ¶2, 333 Wis. 2d 402, 797
N.W.2d 789 (“Violations of the Code of Professional Conduct are determined only
by means of disciplinary action.”).

¶67 Nora cites Foley-Ciccantelli, 333 Wis. 2d 402, ¶5, for the
proposition that she has standing to move for the disqualification of an opposing
party’s attorney. That case does not support her argument. Foley-Ciccantelli
dealt with a defendant’s motion to disqualify the attorney representing the
plaintiffs on the ground that the attorney’s law firm had previously represented the
defendant’s property manager and had communicated with the property manager
regarding the case at issue. Id., ¶¶2-3. Here, Nora did not move to disqualify

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No. 2024AP2552

Nationstar’s attorney; she merely asserted in her brief in response to Nationstar’s
motion to dismiss that she “reserves her right to seek disqualification.” Because
Nora did not argue in the circuit court that Nationstar’s counsel should be
disqualified, she forfeited that argument, and we need address it no further. See
Townsend v. Massey, 2011 WI App 160, ¶25, 338 Wis. 2d 114, 808 N.W.2d 155
(“the forfeiture rule focuses on whether particular arguments have been preserved,
not on whether general issues were raised before the circuit court”); State v.
Rogers, 196 Wis. 2d 817, 828-29, 539 N.W.2d 897 (Ct. App. 1995) (explaining
that, to preserve its right to appeal, a party must do more than “signal its general
interest in” making an argument; the forfeiture rule “requires that the appellant
articulate each of its theories to the [circuit] court”).

¶68 Moreover, Nora fails to develop an argument in this court as to how
she would be injured by the multiple representation by the same counsel of
Nationstar, Nationwide Title, Bank of New York Mellon as Trustee, and the non-
appearing third-party defendants, and, therefore, fails to show that she has
standing to challenge that representation. See Foley-Ciccantelli, 333 Wis. 2d 402,
¶40 (standing requires that the party’s interest will be injured or adversely affected
by the issue in controversy).

¶69 For these reasons, we reject Nora’s argument that the circuit court
erred by allowing counsel for Nationstar to represent Bank of New York Mellon
as Trustee and multiple third-party defendants.

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No. 2024AP2552

III. Due Process

A. Dismissal Before Opportunity to Respond

¶70 Nora argues that the circuit court deprived her of due process when
it dismissed the third-party complaint before she had an opportunity to respond to
some third-party defendants’ motions to dismiss and before other third-party
defendants appeared. Whether a party’s due process rights were violated is a
question of law that we review de novo. Xerox Corp. v. DOR, 2009 WI App 113,
¶12, 321 Wis. 2d 181, 772 N.W.2d 677.

¶71 “The fundamental requirements of procedural due process are notice
and an opportunity to be heard.” Northbrook Wis., LLC v. City of Niagara, 2014
WI App 22, ¶21, 352 Wis. 2d 657, 843 N.W.2d 851. Here, the circuit court did
not give advance notice that it would be ruling on Nationstar’s motion to dismiss
at the hearing at which it granted that motion, and Nora did not before the hearing
respond to First Horizon’s or Nationwide Title’s motions to dismiss. However,
the arguments that Nationstar put forth in its motion to dismiss applied to all of the
third-party defendants, and Nora was given a meaningful opportunity to be heard
in response to Nationstar’s motion: she filed a brief opposing that motion and was
given the opportunity to present oral argument. Accordingly, Nora’s opportunity
to be heard with respect to Nationstar’s motion to dismiss gave her the opportunity
to respond to arguments that applied to all of the third-party defendants, including
those who had filed their own motions to dismiss and those who had not yet
appeared in the action. Specifically pertinent here, Nationstar’s argument that the
third-party complaint fails to state a claim applied to all of the third-party
defendants, and we have explained above that the third-party complaint does fail

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No. 2024AP2552

to state a claim as to all of the third-party defendants. Accordingly, we conclude
that Nora’s due process rights were not violated.

¶72 Nora does not develop an argument to the contrary. Instead, Nora
cites without explanation three cases: Neylan v. Vorwald, 124 Wis. 2d 85, 95, 368
N.W.2d 648 (1985); William B. Tanner Co. v. Estate of Fessler, 100 Wis. 2d 437,
446-47, 302 N.W.2d 414 (1981), abrogated on other grounds by Sears, Roebuck
& Co. v. Plath, 161 Wis. 2d 587, 468 N.W.2d 689 (1991); and Bill Johnson’s
Restaurants, 461 U.S. at 741. None of these cases support her argument.

¶73 The issue in Neylan was whether a circuit court could sua sponte
dismiss a complaint for failure to prosecute without giving actual notice to the
parties. Neylan, 124 Wis. 2d at 86. There, our supreme court concluded that a
dismissal entered “without actual notice before entry precluded the opportunity to
be heard” and, therefore, violated due process. Id. at 95. The court explained that
“[i]f there had been actual notice given of the dismissal, the plaintiffs’ counsel
could have proceeded under [the statute] governing relief from judgments[,] …
which ‘renders the lack of prior notice of less consequence.’” Id. at 95-96 (quoted
source omitted). The court further explained that “‘[t]he adequacy of notice and
hearing respecting proceedings that may affect a party’s rights turns, to a
considerable extent, on the knowledge which the circumstances show such party
may be taken to have of the consequences of [the party’s] own conduct.’” Id. at
90 (quoted source omitted).

¶74 Here, Nora had notice that Nationstar moved to dismiss the third-
party complaint in its entirety. She also had an opportunity to be heard regarding
that motion, both via her written response to Nationstar’s motion to dismiss and
via the opportunity the circuit court provided to her to orally argue against the

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motion at the hearing, which opportunity she did not take. The court then
provided notice at the hearing that its decision on Nationstar’s motion to dismiss
was “going to grant and affect the other two [motions to dismiss filed by two other
third-party defendants] [because] [t]hey all raise the same arguments…. I think
I’m resolving the issue[s] that they all brief.” Unlike the plaintiffs in Neylan,
Nora was given notice that the court was going to dismiss her claims and had an
opportunity to present oral argument, ask for a continuance to respond to the other
motions to dismiss to the extent that they made arguments not made in
Nationstar’s motion, or move for reconsideration. See id. at 95 (“If there had been
actual notice given of the dismissal, the plaintiffs’ counsel could have proceeded
under [the statute] governing relief from judgments.”). Given this material
difference in “the circumstances” between Neylan and this case, see id. at 90,
Neylan does not support Nora’s argument.

¶75 In Estate of Fessler, our supreme court explained that “when the
rights or interests of a person are sought to be affected by judicial … decree, due
process requires that the individual be given notice reasonably calculated to
inform the person of the pending proceeding and to afford [the individual] an
opportunity to object and defend [the individual’s] rights.” Estate of Fessler, 100
Wis. 2d at 447. To repeat, Nora was given notice that Nationstar’s motion to
dismiss effectively sought to dismiss the third-party complaint in its entirety as to
all third-party defendants, and the circuit court provided her with an opportunity to
oppose that motion both with her brief in response and with argument at the
hearing. Thus, Nora had notice of and opportunity to be heard on the motion to
dismiss the third-party complaint as to all third-party defendants, including the
argument that the third-party complaint fails to state a claim. Nora also had the
opportunity at the hearing to object to the court applying its ruling to grant First

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Horizon’s and Nationwide Title’s motions to dismiss on the same basis as it
granted Nationstar’s motion. Estate of Fessler does not support Nora’s argument
that her due process rights were violated here.

¶76 As explained above, the United States Supreme Court in Bill
Johnson’s Restaurants held that, under the First Amendment, the National Labor
Relations Board could not halt a state-court lawsuit brought by an employer
without finding that the suit lacked a reasonable basis in fact or law. Bill
Johnson’s Restaurants, 461 U.S. at 733, 743. Here, the circuit court dismissed
Nora’s third-party complaint on the basis that it fails to state a claim on which
relief can be granted. Nora does not explain how the dismissal of the third-party
complaint pursuant to Nationstar’s motion to dismiss violated her First
Amendment rights.

¶77 For these reasons, we reject Nora’s argument that the circuit court
deprived her of her due process rights by dismissing the third-party complaint
before she had an opportunity to respond to some third-party defendants’ motions
to dismiss and before other third-party defendants appeared.

B. Dismissal Before Oral Argument

¶78 Nora asserts that the circuit court deprived her of her due process
rights when it denied her the opportunity to present oral argument in opposition to
Nationstar’s motion to dismiss. However, at the hearing she declined the court’s
invitation to present oral argument in opposition to Nationstar’s motion. More
generally, Nora fails to develop an argument supported by citations to relevant
legal authority as to why she was entitled to oral argument as to any of the three
motions to dismiss, and we reject this assertion on that basis. See Pettit, 171 Wis.

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2d at 646-47 (explaining that this court need not consider arguments that are
unsupported by legal authority or are otherwise undeveloped).

CONCLUSION

¶79 For the reasons stated above, we conclude that the circuit court
properly dismissed Nora’s third-party complaint for failure to state a claim on
which relief can be granted. We also reject Nora’s remaining claims of error.
Accordingly, we affirm.

By the Court.—Orders affirmed.

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

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