Brian Stubitsch v. Brian M. Reeder, MD

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 26, 2024
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. 2023AP2221 Cir. Ct. No. 2021CV232

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

BRIAN STUBITSCH, LINDSAY STUBITSCH AND OLIVIA STUBITSCH,

PLAINTIFFS-APPELLANTS,

EDGERTON HOSPITAL AND HEALTH SERVICES,

INVOLUNTARY-PLAINTIFF-RESPONDENT,

V.

BRIAN M. REEDER, MD AND DEAN HEALTH SYSTEMS, INC.,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Dane County:
DIANE SCHLIPPER, Judge. Affirmed.

Before Kloppenburg, P.J., Blanchard, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP2221

¶1 PER CURIAM. Brian Stubitsch and Lindsay Stubitsch, and their
daughter Olivia Stubitsch, appeal a circuit court order granting the motion by
Dr. Brian Reeder and Dean Health Systems, Inc. for summary judgment
dismissing the Stubitsches’ medical negligence claims against them.1 The
Stubitsches’ claims arise out of medical treatment Olivia received for a broken
knee (referred to by the parties as a “patella avulsion fracture”) in 2017, when she
was seven years old. The Stubitsches allege that Reeder negligently prescribed an
adult-sized knee brace for Olivia and negligently instructed Brian and Lindsay to
tighten the brace, and that this tightening caused nerve damage (referred to by the
parties as a “peroneal nerve injury”). The Stubitsches retained Dr. Charles Klein
as an expert witness to support their allegations that Reeder was negligent and that
this negligence caused Olivia’s peroneal nerve injury. The circuit court granted
Reeder’s motion for summary judgment dismissing the Stubitsches’ claims on the
ground that the Stubitsches failed to rebut Reeder’s prima facie case that Klein’s
opinion that Reeder caused Olivia’s peroneal nerve injury is unreliable and,
therefore, his testimony is inadmissible under WIS. STAT. § 907.02(1) (2021-22).2

¶2 The Stubitsches argue that Reeder is not entitled to summary
judgment dismissing their claims for two reasons. First, they argue that the circuit

1
We refer to each of the Stubitsches individually by his or her first name and to them
collectively as the Stubitsches.

The Stubitsches also sued a number of healthcare entities for negligence. All other
parties except Dr. Brian Reeder and Dean Health Systems, Inc. have since been dismissed from
the action. We refer to the remaining defendants-respondents collectively as “Reeder.”
2
Under WIS. STAT. § 907.02(1), expert testimony is admissible if, among other things,
the expert has applied the expert’s experience and expertise “reliably to the facts of the case.”

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP2221

court erroneously exercised its discretion to exclude Klein’s testimony as
inadmissible under WIS. STAT. § 907.02(1) by erroneously concluding that his
opinion is unreliable. Second, the Stubitsches argue that the court ruled on the
issue of reliability as a basis for determining that Klein’s testimony is inadmissible
without providing adequate notice.

¶3 We conclude that the record establishes that Klein did not reliably
apply his medical experience and expertise to the facts and, therefore, the circuit
court properly exercised its discretion to exclude his testimony as inadmissible.
We also conclude that the record establishes that the parties had adequate notice of
and opportunity to brief and argue the issue of reliability. Because the Stubitsches
failed to present expert testimony to create a dispute of material fact as to whether
Reeder caused Olivia’s peroneal nerve injury, we affirm the circuit court’s order
granting Reeder’s motion for summary judgment dismissing the Stubitsches’
claims.

BACKGROUND

¶4 The following material facts are undisputed for the purposes of
summary judgment.

¶5 In October 2017, Olivia, then seven years old, was seen at a Dean
Health clinic for treatment of a patella fracture. In mid-October 2017, Olivia had
her first appointment with Reeder, a board-certified pediatrician with an added
qualification in sports medicine. As part of Olivia’s treatment plan, Reeder
recommended that Olivia wear an immobilizing knee brace for nine weeks, after
which she would begin to wean out of the brace. On October 14, 2017, a nurse
fitted Olivia with an immobilizing knee brace. Brian and Lindsay communicated
their concerns that the brace was too big for Olivia to several Dean Health

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No. 2023AP2221

providers, both in person and over the phone. Lindsay was told that the brace
given to Olivia was the smallest brace they had available. In response to one of
Lindsay’s calls raising concerns about the brace sliding down Olivia’s leg,
Lindsay was told to tighten the brace strap just below Olivia’s knee and loosen the
two straps above Olivia’s knee.3

¶6 Olivia saw a pediatrician for her patella fracture and other concerns
on October 30, 2017, and the documentation from this appointment did not note
any symptoms of a peroneal nerve injury.

¶7 Olivia also had two follow-up appointments with Reeder, on
October 27 and November 27, 2017. During the October 27, 2017 visit, Lindsay
repeated her concern about the brace fitting improperly and Reeder adjusted the
brace. During the November 27, 2017 appointment, Reeder noted that Olivia was
doing well with minimal pain and recommended that Olivia follow up as needed.
Documentation from both appointments with Reeder noted no complaints or

3
The parties dispute what reasonable inferences may be made based on the summary
judgment materials about the level of Reeder’s involvement in selecting and fitting the brace and
in advising Lindsay to tighten the strap. Because the level of Reeder’s involvement is of no
consequence to the admissibility of Klein’s testimony and the outcome of the summary judgment
motion, it is not material and, therefore, we do not discuss it further. See Michael R.B. v. State,
175 Wis. 2d 713, 724, 499 N.W.2d 641 (1993) (“Material facts are those that are of consequence
to the merits of the litigation.”); Baxter v. DNR, 165 Wis. 2d 298, 312, 477 N.W.2d 648 (Ct.
App. 1991) (“[T]he ‘mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.’” (quoted source omitted)).

On a related note, Reeder moved for summary judgment on the alternative ground that
Reeder did not supervise the fitting or tightening of the brace. Because we resolve this matter
based on the unreliability of Klein’s opinion, we do not address this alternative ground. 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.”).

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No. 2023AP2221

observation of symptoms associated with a peroneal nerve injury. Olivia did not
complain of any numbness or tingling in her legs while wearing the brace.

¶8 Olivia did not see Reeder after the November 27, 2017 appointment.
Olivia stopped wearing the knee brace in late November or December 2017.
Lindsay did not notice any gait issues when Olivia stopped wearing the brace, but
noted that Olivia was “hesitant to, like, go running or, you know, to stop quickly,”
because she was concerned about “reinjuring her knee.”

¶9 At some point between a few months after the 2017 fracture and the
spring of 2019, Lindsay and Brian noticed that Olivia was having difficulty
running and that the toe of Olivia’s left shoe was wearing abnormally. In
January 2020, Lindsay sought a physical therapy referral for Olivia. Up until that
point, Olivia had been participating in physical education class, lacrosse, and other
sports. On January 14, 2020, Olivia was seen by a physical therapist, who noted
weakness in Olivia’s left foot and ankle. Due to these findings, Olivia was seen
by a pediatric neurologist on January 21, 2020, who diagnosed Olivia with a
peroneal nerve injury. Olivia underwent a peroneal nerve decompression surgery
in March 2020.4

¶10 In January 2021, the Stubitsches commenced this action for medical
negligence against Reeder, alleging that Reeder was negligent in providing health
care services to Olivia and that his negligence proximately caused the peroneal
nerve injury and related pain and impairment. In September 2021, the Stubitsches
retained Klein, an orthopedic surgeon with over 36 years of medical practice

4
Olivia underwent an additional surgery for this condition in August 2022, after this
action was commenced.

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No. 2023AP2221

experience, to serve as their expert witness. Klein authored an expert report in
January 2022, summarizing the materials he reviewed and providing his opinion as
to the cause of Olivia’s peroneal nerve injury. Klein based his opinion on his
specialized medical knowledge and experience, specifically in the field of general
orthopedics. The report states in pertinent part:

[I]t is my opinion that it is probable that [Olivia] Stubitsch
sustained a compression injury to her left common peroneal
nerve just below the knee due to the knee brace and the
tightening of the straps on the brace probably caused the
peroneal nerve injury.... All opinions are given to a
reasonable degree of medical certainty.

¶11 At his deposition in May 2022, Klein testified to the following:
(1) the peroneal nerve injury was sustained in October or November 2017; (2) at
the time the peroneal nerve injury was sustained, Klein would have expected to
see “pain around the area of the peroneal nerve,” “numbness on the top of the
foot,” “weakness in the foot,” and/or “gait abnormalities,” including “toe
dragging”; (3) there was “no evidence that [Olivia] reported any symptoms
consistent with the compression-based [peroneal nerve] injury” at the time Reeder
was treating Olivia, but Olivia would have been experiencing acute symptoms
during this late-2017 timeframe, so they must have been overlooked; (4) Reeder
“failed to recognize [the] nerve injury that was present” at that time; and (5) none
of this was reflected in any of Olivia’s medical records until January 2020.

¶12 Klein further testified that he had never seen a pediatric patient
sustain a peroneal nerve injury as a result of excessive compression from a brace
and that there are a number of other conditions and injuries that could cause a
peroneal nerve injury of the type suffered by Olivia. Klein testified that “this is
one of those classic teachings in orthopedic surgery … whenever, … for example,
if you have … a brace on and the person starts exhibiting … symptoms of a

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No. 2023AP2221

peroneal problem, you immediately take the cast off, you immediately take the
brace off.” But, again, he also testified that there was no evidence in Olivia’s
medical records that Olivia exhibited any symptoms while wearing the brace, and
the first time Olivia presented to a medical provider with acute symptoms of a
peroneal nerve injury was January 2020.

¶13 Reeder moved for summary judgment on the ground that “[t]he
evidence is insufficient as a matter of law to prove that any allegedly negligent
acts or omissions by [Reeder] were a cause of injury to [Olivia]” because Klein’s
causation opinion is “based on pure speculation” and is therefore not “reliable” as
required for the admissibility of expert testimony under WIS. STAT. § 907.02(1)
and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The
Stubitsches opposed the motion, arguing that there is a sufficient basis for Klein’s
causation opinion. The circuit court stayed a decision on the motion and ordered
Klein to appear for a Daubert hearing on the date of the final pretrial conference.
When Klein did not appear for the hearing, the court determined that it would
proceed with the Daubert analysis and summary judgment motion based on the
record before it. Neither party objected to the court proceeding in this manner.

¶14 The circuit court granted Reeder’s motion for summary judgment on
the ground that Klein “fail[ed] to explain why his causation opinion applies
reliable principles to sufficient facts and data.” The court excluded Klein’s
testimony as inadmissible and dismissed the Stubitsches’ complaint based on the
Stubitsches’ failure to present the reliable expert testimony that is “require[d]” for
medical malpractice cases, citing Carney-Hayes v. Northwest Wisconsin Home
Care, Inc., 2005 WI 118, ¶37, 284 Wis. 2d 56, 699 N.W.2d 524.

¶15 This appeal follows.

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No. 2023AP2221

DISCUSSION

I. Applicable Standard of Review and Legal Principles

¶16 We first summarize the standard of review governing the
Stubitsches’ appeal of the circuit court’s decision excluding Klein’s opinion under
WIS. STAT. § 907.02(1). We then present the legal principles pertinent to the
admissibility of proffered expert witness testimony.

A. Standard of Review

¶17 The issue that the parties brief on appeal is nominally the grant of
summary judgment. However, the parties do not dispute that summary judgment
is appropriate if Klein’s testimony is inadmissible. As this court has explained,
summary judgment is appropriate when the plaintiff is unable to produce expert
testimony establishing a causal connection between the alleged negligence and the
plaintiff’s injury. See Estate of Hegarty v. Beauchaine, 2006 WI App 248, ¶154,
297 Wis. 2d 70, 727 N.W.2d 857 (“To establish causation in a medical
malpractice case where the issues involve … medical matters, beyond the common
knowledge or experience of jurors, testimony from medical experts is essential.
‘[T]he lack of expert testimony on the question of causation results in an
insufficiency of proof[.]’” (citation omitted) (quoting Bruss v. Milwaukee
Sporting Goods Co., 34 Wis. 2d 688, 696, 150 N.W.2d 337 (1967))). Thus, this
appeal requires that we review the circuit court’s decision to exclude Klein’s
testimony as inadmissible because his opinion is unreliable.

¶18 “Appellate courts review a circuit court’s decision to admit or
exclude expert testimony under an erroneous exercise of discretion standard.”
State v. Giese, 2014 WI App 92, ¶16, 356 Wis. 2d 796, 854 N.W.2d 687. We are

8
No. 2023AP2221

“highly deferential” to the circuit court’s discretionary decisions. State v.
Shomberg, 2006 WI 9, ¶11, 288 Wis. 2d 1, 709 N.W.2d 370. “As long as the
circuit court ‘examined the relevant facts, applied a proper legal standard, and,
using a demonstrated rational process, reached a reasonable conclusion,’ we will
not disturb its ruling.” Allsop Venture Partners III v. Murphy Desmond SC,
2023 WI 43, ¶23, 407 Wis. 2d 387, 991 N.W.2d 320 (quoted source omitted).

B. Admissibility of Expert Testimony

¶19 The admissibility of expert testimony is governed by WIS. STAT.
§ 907.02(1). Seifert v. Balink, 2017 WI 2, ¶¶6-7, 372 Wis. 2d 525, 888 N.W.2d
816. Section 907.02(1) provides as follows:

If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or
otherwise, if the testimony is based upon sufficient facts or
data, the testimony is the product of reliable principles and
methods, and the witness has applied the principles and
methods reliably to the facts of the case.

¶20 WISCONSIN STAT. § 907.02(1) now mirrors Federal Rule of
Evidence 702, which codified Daubert, 509 U.S. 579 (1993). Seifert, 372 Wis. 2d
525, ¶51. Before admitting expert testimony, the circuit court must “be satisfied
that the testimony is reliable.” Id., ¶¶58-59 (“Daubert makes the [circuit] court a
gatekeeper.”). The Federal Rules Advisory Committee provided a list of
nonexhaustive factors to guide the reliability analysis. Id., ¶63. These include:

(1) Whether experts are “proposing to testify about
matters growing naturally and directly out of research they
have conducted independent of the litigation, or whether
they have developed their opinions expressly for purposes
of testifying.”

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No. 2023AP2221

(2) Whether the expert has unjustifiably
extrapolated from an accepted premise to an unfounded
conclusion.

(3) Whether the expert has adequately accounted
for obvious alternative explanations.

(4) Whether the expert “is being as careful as [the
expert] would be in his regular professional work outside
[the expert’s] paid litigation consulting.”

Id. (citations omitted) (quoting commentary following the 2000 amendment to
Federal Rule of Evidence 702). However, the court is not required to consider
these factors and has wide latitude to conduct its reliability analysis. Id., ¶¶64-65.

¶21 Pertinent here, “experience-based expert evidence may pass muster
under the reliability requirement,” particularly in cases involving medical expert
testimony. Id., ¶¶67, 77-79. “If the witness is relying solely or primarily on
experience, then the witness must explain how that experience leads to the
conclusion reached, why that experience is a sufficient basis for the opinion, and
how that experience is reliably applied to the facts.” Id., ¶73 (quoting Federal
Rule of Evidence 702 Advisory Committee Note (2000)). “Daubert’s role of
ensuring that the courtroom door remains closed to junk science is not served by
excluding medical expert testimony that is supported by extensive relevant
medical experience. Such exclusion is rarely justified in cases involving medical
experts.” Id., ¶85 (footnote omitted). “The [circuit] court’s gatekeeping function
in regard to experience-based testimony, however, ‘requires more than simply
taking the expert’s word for it.’” Id., ¶74 (quoted source omitted). “[N]o matter
how good experts’ credentials may be, they are not permitted to speculate.” Giese,
356 Wis. 2d 796, ¶19 (alteration in original; internal quotation marks omitted)
(quoting Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 671 (6th Cir. 2010)).

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No. 2023AP2221

II. Analysis

¶22 On appeal, we understand the Stubitsches to argue that Reeder is not
entitled to summary judgment because Klein’s testimony establishes that there are
genuine issues of material fact as to Reeder’s negligence. More specifically, the
Stubitsches argue that the circuit court erred in determining that Klein’s opinion is
unreliable and, therefore, his testimony is inadmissible, because, the Stubitsches
assert, the “substance [of Klein’s opinion] is supported by the medical records …,
the deposition transcripts …, and [Klein’s] 38-plus years of experience as a
general orthopedist.” The Stubitsches assert that the court failed to consider
Klein’s methodology and instead “acted as a factfinder and substituted [the
court’s] judgment on causation.” We reject the Stubitsches’ argument because the
record provides a reasonable basis for the court’s ruling and establishes that it
properly exercised its discretion. See State v. Hammer, 2000 WI 92, ¶21, 236
Wis. 2d 686, 613 N.W.2d 629 (“If there was a reasonable basis for the court’s
determination, then we will not find an erroneous exercise of discretion.”).

¶23 We conclude that the circuit court here “examined the relevant facts”
submitted by the parties, properly conducted an analysis of Klein’s testimony
under WIS. STAT. § 907.02(1) and Daubert, and used a “demonstrated rational
process” to conclude that Klein’s testimony is “little more than ipse dixit.” See
Allsop, 407 Wis. 2d 387, ¶23. In performing its analysis, the court accepted as
undisputed that Klein has the specialized knowledge and experience required by
§ 907.02(1). With that assumption, the court focused on the reliability of Klein’s
opinion, and, by implication, on the methodology that he used to reach that
opinion:

In this case, Klein opines that Reeder caused Olivia’s
peroneal nerve injury in October or November 2017 by

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No. 2023AP2221

fitting her with a brace. As best the Court can tell, Klein’s
only explanation for why the brace must have caused the
nerve injury is because “this is one of those classic
teachings in orthopedic surgery, okay?” And, to explain
why Reeder’s November 27, 2017, examination of Olivia
did not uncover any of the symptoms of the injury
predicted by those classic teachings, Klein opines “it looks
like he did not recognize the peroneal nerve problem ….”
An expert can sometimes ignore the facts of a particular
case and recite the classic teachings of their field, but [the
fact that an expert has] knowledge in a field does not also
mean [that the] expert applied that knowledge to sufficient
facts and data in reaching a reliable opinion.

(Ellipsis in original; citations omitted.)

¶24 As stated, Klein opined that the tightening of the brace in 2017
caused Olivia’s peroneal nerve injury. He opined that the peroneal nerve injury
was sustained and presented in 2017, but no one recognized it. He acknowledged
that he saw no evidence of any symptoms of a peroneal nerve injury before 2020
in any of the records he reviewed, despite opining that Olivia would exhibit acute
symptoms at the time she sustained the injury. He acknowledged that there are
other potential causes of peroneal nerve injuries sustained by pediatric patients.
The only explanation he gave to support his conclusion that the brace caused
Olivia’s peroneal nerve injury is that “if you have a … brace on and the person
starts exhibiting, you know, symptoms of a peroneal problem, … you immediately
take the brace off. It’s one of these -- one of these common things that you are
taught in orthopedic surgery.” However, as the circuit court explained, there is no
evidence that Olivia exhibited symptoms of a “peroneal problem” when she was
wearing the brace in 2017, and, therefore, we are asked to “‘simply tak[e] the
expert’s word for it.’” See Seifert, 372 Wis. 2d 525, ¶74 (quoted source omitted).
In other words, Klein did not “‘explain … why [his] experience is a sufficient
basis for [his] opinion, and how that experience is reliably applied to the facts.’”
See id., ¶73 (quoted source omitted). Klein “‘unjustifiably extrapolated from an

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No. 2023AP2221

accepted premise,’” i.e., that braces can cause peroneal nerve injuries, “‘to an
unfounded conclusion’”: that this brace caused a peroneal nerve injury in 2017
despite the undisputed fact that no one noticed the symptoms for two years. See
id., ¶63 (quoted source omitted).

¶25 In sum, we conclude that the record supports the circuit court’s
exercise of discretion in excluding Klein’s expert testimony under WIS. STAT.
§ 907.02(1) on the ground that his opinion is unreliable. And because, as
explained above, the lack of expert testimony on causation in a medical negligence
case “results in an insufficiency of proof,” Reeder is entitled to summary judgment
dismissing the complaint. See Hegarty, 297 Wis. 2d 70, ¶154 (quoting Bruss, 34
Wis. 2d at 696); see also Kaufman v. State St. Ltd. P’ship, 187 Wis. 2d 54, 58-59,
522 N.W.2d 249 (Ct. App. 1994) (“‘[I]t is the burden of the party asserting a claim
on which it bears the burden of proof at trial to make a showing sufficient to
establish the existence of an element essential to that party’s case.’” (quoted
source omitted)).

¶26 In the alternative, the Stubitsches argue that summary judgment was
improperly granted because the circuit court failed to give adequate notice of the
issue of reliability as a basis for determining that Klein’s opinion is inadmissible,
thereby preventing either party from adequately briefing or supplying evidence on
that issue. The Stubitsches assert that Reeder’s motion for summary judgment
addressed the admissibility of Klein’s testimony on the ground that his opinion is
based on speculation, not that his opinion is unreliable, and that speculation and
reliability are distinct concepts. The Stubitsches argue that this shift from
speculation to unreliability resulted in the motion decided by the court being a
different motion from that which was brought by Reeder. The record soundly
refutes this argument.

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No. 2023AP2221

¶27 Reeder’s brief in support of his motion for summary judgment
squarely raised the issue of reliability. Reeder argued that Klein’s opinion “is
inadmissible because it is not ‘reliable’ as defined by WIS. STAT. § 907.02(1) and
interpretive case law [including Daubert].” While one of the headings in Reeder’s
brief stated that “the causation opinion by the plaintiffs’ expert is purely
speculative,” the substance of that section argued that Klein’s testimony is not
admissible because his opinion is unreliable. In that section, Reeder argued that
“[i]n order for Dr. Klein’s opinions to be admissible at trial, they must be …
reliable.” Reeder then contended that Klein’s causation opinion “is not admissible
because it is not reliable. Dr. Klein’s [causation] opinion is based on nothing more
than his own speculative ipse dixit.” The Stubitsches’ brief responded to this
argument by explaining that Klein’s medical experience constitutes a reliable basis
for his opinion, citing Seifert, 372 Wis. 2d 525, ¶77, and referencing Daubert and
its admissibility analysis. Indeed, the word “reliable” or some variation thereof
was used fourteen times in Reeder’s brief and six times in the Stubitsches’ brief.

¶28 In response to this briefing on the summary judgment motion, the
circuit court issued an order on October 2, 2023, requiring Klein to appear for a
Daubert hearing. In this order, the court unambiguously stated that it would be
examining whether Klein’s opinions are admissible under the standard set out in
WIS. STAT. § 907.02(1), that is, “if the testimony is based upon sufficient facts or
data, the testimony is the product of reliable principles and methods, and the
witness has applied the principles and methods reliably to the facts of the case,” in
order to rule on the summary judgment motion. The court proceeded to rule on
exactly this issue.

¶29 In other words, the Stubitsches’ alternative argument that the circuit
court “sua sponte” raised the WIS. STAT. § 907.02(1) reliability issue lacks any

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No. 2023AP2221

basis in the record. The court ruled on that issue, which was squarely put before it
by Reeder, of which both Reeder’s brief and the court’s scheduling order gave the
Stubitsches notice, and to which the Stubitsches attempted to respond in their
opposing brief.5

CONCLUSION

¶30 For the reasons stated above, we affirm.

By the Court.—Order affirmed.

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

5
The Stubitsches cite Larry v. Harris, 2008 WI 81, 311 Wis. 2d 326, 752 N.W.2d 279, in
support of their argument, but that case is easily distinguished. In Harris, our supreme court held
that the circuit court erred when it sua sponte ruled on a summary judgment motion without
providing the parties an opportunity to brief the issues. Id., ¶¶43-45. Here, as explained in the
text, the circuit court ruled on Reeder’s summary judgment motion after the parties had an
adequate opportunity to brief the issues.

15