COURT OF APPEALS

DECISION

DATED AND FILED

July 7, 2023

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2021AP1985 Cir. Ct. No. 2019CV2861

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

THUNDERBIRD ENGINEERING, INC.,

 PLAINTIFF-APPELLANT,

 V.

AMERICAN DESIGN, INC. AND JOHN T. WILLIAMS,

 DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Dane County: 

STEPHEN E. EHLKE, Judge. Affirmed. 

Before Fitzpatrick, Graham, 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).

¶1 PER CURIAM. Thunderbird Engineering, Inc. (“Thunderbird”) 

appeals an order denying its request for exemplary damages and partially denying 
No. 2021AP1985

2

its request for attorney fees pursuant to WIS. STAT. § 895.446(3) (2021-22).

1

 

Thunderbird also appeals the circuit court’s ruling denying its requests for attorney 

fees under WIS. STAT. § 802.05(3) associated with responding to an unsuccessful 

request for sanctions filed by American Design, Inc. (“American Design”) and John 

Williams (collectively, “Defendants”), and under WIS. STAT. § 804.12(2) for 

Defendants’ alleged discovery violations. We affirm.

BACKGROUND

¶2 This appeal arises in a somewhat unique procedural posture. The 

circuit court granted summary judgment to Thunderbird on its breach-of-contract 

and theft-by-contractor claims after Defendants failed to respond to Thunderbird’s 

requests for admission. Defendants do not challenge the court’s order granting 

summary judgment against them. Instead, Thunderbird appeals the court’s denial 

of its request for exemplary damages and the court’s award of only partial attorney 

fees on Thunderbird’s theft-by-contractor claims. Therefore, the following

background focuses on facts relevant to these limited issues. 

¶3 American Design is an architectural firm, with Williams as its 

president, majority owner, and sole active officer. In 2018, American Design 

entered into contracts to serve as the prime contractor for the renovation of two 

buildings in Milwaukee: the Andrew S. Douglas School (“Douglas project”),

owned by the Milwaukee Public Schools (“MPS”); and the Merchant & Farmers 

State Bank Building (“Bader project”), owned by Bader Philanthropies, Inc. 

 

1

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

noted.
No. 2021AP1985

3

¶4 American Design hired Thunderbird as one of its subcontractors, to

perform HVAC, plumbing, and electrical services on both projects. Shawn Woldt 

is the president of Thunderbird. 

¶5 American Design and Thunderbird entered into contracts for the 

Douglas and Bader projects (the “Douglas contract” and “Bader contract,” 

respectively). The Douglas contract required that American Design “attempt” to 

pay Thunderbird for its services within thirty days of receiving payment from MPS. 

The Bader contract required that American Design pay Thunderbird “promptly” 

after receiving payments from Bader Philanthropies, Inc. In addition, each contract 

required Thunderbird to name each project owner, MPS and Bader Philanthropies, 

respectively, as an additional insured under its general liability and umbrella 

liability insurance policies. Thunderbird’s failure to comply with these insurance 

requirements could result in American Design being in breach of its contract with 

the project owners.

¶6 Over the course of the projects, MPS and Bader Philanthropies timely 

paid American Design approximately $380,000. Out of those funds, American 

Design would ultimately owe Thunderbird a total of $87,495 for its work on the 

Douglas project and $41,520 for its work on the Bader project. 

Douglas Project

¶7 Thunderbird’s work on the Douglas project began in late 2018 or early 

2019, with most of the work completed by August 2019. On October 3, 2018, 

American Design’s office manager, Beverly Helbling, emailed Thunderbird’s 

business manager, requesting that Thunderbird send Helbling a copy of 

Thunderbird’s certificate of insurance (“COI”) naming MPS as an additional 

insured on its policies, as the contract required. Helbling repeated this request in 
No. 2021AP1985

4

emails sent on December 10 and 12, 2018. Despite Thunderbird’s attempts to 

rectify the insurance issues, as of April 4, 2019, Thunderbird still had not satisfied

the contract requirement that MPS be included as an additional insured. In addition, 

as the circuit court found, there continued to be “legitimate concerns regarding 

insurance in the months after April of 2019,” which “[e]ven Mr. Woldt admitted 

[to] in his deposition testimony.” Thunderbird did not produce a COI for the 

Douglas project containing the correct “additional insured” language until 

March 12, 2021, a few weeks before trial.

2

¶8 In addition to the insurance issues, there were also issues involving 

Thunderbird’s failure to sign the Douglas contract. In November 2018, Helbling 

notified Thunderbird that American Design had not yet received a signed copy of 

the contract and Helbling twice emailed Thunderbird the contract for signature. 

About seven months later, in June 2019, following Woldt’s complaints to American 

Design about payment delays, Williams explained that he had needed to apply his 

“executive override” to pay Thunderbird because Woldt had not signed the contract. 

Williams requested that Woldt sign the contract. In July 2019, there were still 

ongoing emails and discussions about getting the Douglas contract signed, with 

Thunderbird ultimately signing the contract on July 23, 2019.

 

2

 Defendants state that, by the start of trial, American Design had asked Thunderbird to 

provide a compliant COI nine times but never received one. Thunderbird argues that this is a 

“blatant mischaracterization of the evidence.” However, in support of this assertion, Thunderbird

cites, among other things, Woldt’s own testimony at trial in which he twice agreed that Defendants 

had requested the insurance information nine times before receiving it. We therefore question 

Thunderbird’s characterization of Defendants’ statement as a “blatant mischaracterization.” It is 

unnecessary for purposes of our decision in this case, however, to determine the exact number of 

times that Defendants requested the COI. The circuit court concluded that there were ongoing 

“legitimate” concerns about the insurance issues, extending up through and after April 2019. 

Although Thunderbird argues that the insurance concerns expressed by Defendants were only a 

“pretext to cover up Defendants’ misuse of the project funds,” Thunderbird has not shown—or 

even argued—that the court’s contrary finding that Defendants’ insurance concerns were 

“legitimate” is clearly erroneous. See WIS. STAT. § 805.17(2).
No. 2021AP1985

5

¶9 During the same time period in which the parties were attempting to 

resolve the insurance and contract signature issues, Thunderbird was also attempting 

to obtain payments from American Design for work that Thunderbird had 

performed. In November 2018, Thunderbird attempted to send its first invoice to 

American Design but sent it to the wrong email address. Although the contract 

required that invoices be sent to Helbling, Woldt either attempted to or did email 

the November invoice to Williams instead. In an email from Williams to Woldt on 

January 29, 2019, Williams stated that American Design had not received any 

invoices from Thunderbird and, in a follow-up email in February 2019, he stated 

that American Design received its first invoice at the very end of January 2019.

Woldt responded, “It is our issue as my bookkeeper was not doing their job which 

was to verify the invoice was accepted.” Woldt also admitted during his trial 

testimony that the November invoice was not submitted properly and that 

Defendants had not received it when originally sent. American Design paid this 

invoice in March 2019.

¶10 Although some or all of the payments were overdue, by April 12, 

2019, American Design had paid Thunderbird fifty percent of the total that 

Thunderbird was owed regarding the Douglas contract. The circuit court credited 

Williams’ testimony that American Design made these payments to Thunderbird

despite the deficiencies in Thunderbird’s insurance policies because Williams 

believed Thunderbird would eventually come into compliance with the contract and 

because he wanted to help a fellow minority-owned firm. The court also credited 

Williams’ testimony, supported by contemporaneous emails, that in May and June

of 2019, Williams repeatedly traveled to San Diego to spend time with his sick 

mother and that, as summarized by the court, “[o]nce things settled down, he had a 

chance to look things over and he decided that before they paid more on the 
No. 2021AP1985

6

[Douglas] contract, they needed to get the contract signed and make sure everything 

else was in order.” 

¶11 As the circuit court found, on July 31, 2019, “things came to a head”

when Woldt sent an email to Sean Kane, an administrator with MPS, complaining

about Defendants’ nonpayment of invoices on the Douglas contract, with Williams 

copied on the email. After Kane asked the pair to work out their issues, Williams 

sent an email to Woldt on August 1, 2019, identifying the following problems: 

(1) Thunderbird’s third-party vendors failed to submit timely invoices; 

(2) Thunderbird failed to timely sign the Douglas contract; and (3) Thunderbird’s

COI was still deficient. Williams closed his email by saying he was out of town on 

a personal family emergency. 

¶12 Also on August 1, 2019, Woldt emailed Williams advising that he 

would be filing suit as a result of Defendants’ failure to pay invoices. At some point 

after Williams read this August 1 email, he informed Woldt that any future 

communication between them must be through Williams’ attorney.

¶13 As of Thunderbird’s July 2020 summary judgment motion, 

Defendants owed Thunderbird $46,050 on the Douglas project. This remaining 

amount was not paid until December 2020, after the circuit court granted summary 

judgment to Thunderbird, awarding it damages in that amount. 

Bader Project

¶14 Thunderbird’s work on the Bader project began in late 2018 or early 

2019, with most of the work completed in 2019. Thunderbird sent its first invoice 

to American Design on March 21, 2019, for $12,975; a second invoice on April 22, 

2019, for $25,950; and a third invoice on May 17, 2019, for $2,595. These invoices, 
No. 2021AP1985

7

reflecting the total of $41,520 owed on the Bader project, were paid between 

September 26, 2019 and October 18, 2019. 

¶15 As with the Douglas project, problems occurred with the COI for the 

Bader project. On September 12, 2019, Thunderbird’s business manager emailed a

copy of Thunderbird’s COI to Helbling and another American Design employee. 

That American Design employee emailed the Thunderbird manager, informing him 

that the COI lacked the language required by the Bader contract, and requested a 

proper COI. A few days later, an American Design employee followed up with 

Woldt and the Thunderbird manager, providing them with sample language from 

another subcontractor’s COI that complied with the Bader contract. On 

September 17, 2019, Thunderbird submitted a compliant COI for the Bader project.

Once it received the compliant COI, American Design paid all of the outstanding 

Bader invoices, with all payments sent within thirty days of Thunderbird achieving 

compliance. 

American Design’s Line of Credit

¶16 At trial, Williams testified regarding an open line of credit supplied 

by a family trust that American Design had used for decades due to the difficulties 

that Black-owned firms face in obtaining credit from traditional banks in 

Milwaukee. He testified that American Design used this “very common” financing 

tool in conjunction with its central bank account to manage the payments that it 

needed to make. Williams further testified that, between the bank account and line 

of credit (which varied but was around $100,000), American Design “always had 

the ability to pay Thunderbird’s invoices.” The circuit court found that “Williams 

testified convincingly and without contradiction regarding the line of credit.” 
No. 2021AP1985

8

Lawsuit Leading to Appeal

¶17 On October 15, 2019, Thunderbird filed suit against Defendants, 

alleging four counts of theft by contractor (one for each defendant for both the 

Douglas and the Bader projects) and one count of breach of contract against 

American Design. Thunderbird sought exemplary damages and attorney fees from

both Defendants on its theft-by-contractor claims, pursuant to WIS. STAT.

§ 895.446(3). 

¶18 From March through June 2020, Thunderbird served Defendants with 

multiple discovery requests, including requests for admission. Defendants did not

respond to any of Thunderbird’s discovery requests. Defendants also failed to 

appear for noticed depositions. Williams later represented that this failure to 

respond was on the advice of prior counsel, who advised that the contracts required 

Thunderbird to engage in arbitration or mediation. 

¶19 Among the unanswered discovery requests served on Defendants 

were requests for Defendants to admit that American Design breached its contracts 

with Thunderbird, that Defendants “committed theft by contractor,” and that 

Williams was “liable for civil theft.” 

¶20 The parties subsequently filed cross-motions for summary judgment. 

Defendants’ primary argument was that Thunderbird could not bring its claims due 

to arbitration and mediation provisions in the contracts, and that Thunderbird’s 

theft-by-contractor claims against Williams were improper because Williams was 

not individually a party to the contracts. In their summary judgment submissions, 

Defendants also requested sanctions against Thunderbird pursuant to WIS. STAT.

§ 802.05(2) for filing a “frivolous lawsuit.”
No. 2021AP1985

9

¶21 For its part, Thunderbird argued that its requests for admission were 

deemed admitted and that these admissions disposed of the entire case. In addition 

to actual damages, Thunderbird also requested exemplary damages and reasonable 

litigation costs in an amount to be determined, including attorney fees, pursuant to

WIS. STAT. § 895.446(3) on its theft-by-contractor claims. In its reply, Thunderbird 

also requested attorney fees under WIS. STAT. § 802.05(3)(a)1. associated with 

responding to Defendants’ sanctions motion, alleging that the motion did not 

comply with statutory requirements. 

¶22 On October 14, 2020, the circuit court denied Defendants’ motion for 

summary judgment but granted summary judgment to Thunderbird on its breachof-contract and theft-by-contractor claims based on Defendants’ failure to respond 

to Thunderbird’s requests for admission. The court also denied Defendants’ request 

for sanctions under WIS. STAT. § 802.05(3) on the ground that Defendants had not 

complied with that statute’s requirement that a motion for sanctions be made 

separately from other motions. The court reserved ruling on Thunderbird’s request 

for attorney fees associated with responding to Defendants’ improper sanctions 

motion. 

¶23 The circuit court awarded Thunderbird actual damages of $46,050. It

reserved ruling, however, on Thunderbird’s request for exemplary damages and 

reasonable litigation costs (including attorney fees) on the theft-by-contractor 

claims under WIS. STAT. § 895.446(3), stating that it was “loath to award” those 

damages, given the procedural posture of the case, which the court compared to a 

default situation due to Defendants’ failure to answer the admission requests. The 

court also instructed the parties to attempt to resolve these remaining issues, 

particularly given that Defendants’ new counsel had only been handling the case for 
No. 2021AP1985

10

a week. When efforts at resolving the case failed, the court held a two-day trial on 

the issues of exemplary damages and attorney fees.

¶24 Following the two-day trial and post-trial briefing, the circuit court 

denied Thunderbird’s request for exemplary damages and awarded partial attorney 

fees of $14,630 under WIS. STAT. § 895.446(3).

¶25 The circuit court also denied Thunderbird’s request for attorney fees 

related to Defendants’ request for sanctions under WIS. STAT. § 802.05(3). As 

discussed separately below, the court likewise denied Thunderbird’s request for 

attorney fees under WIS. STAT. § 804.12(2) for alleged discovery violations related 

to Defendants’ failure to produce bank records.

¶26 Thunderbird appeals.

DISCUSSION

I. Exemplary Damages and Attorney Fees for Theft by 

Contractor Under WIS. STAT. § 895.446(3).

¶27 Thunderbird challenges the circuit court’s denial of its request for 

exemplary damages and the court’s partial denial of attorney fees under WIS. STAT.

§ 895.446(3), arguing that the court’s determinations were the result of an erroneous 

exercise of discretion. For the reasons that follow, we disagree.

A. Criminal theft by contractor, remedies, and standard of review.

¶28 WISCONSIN STAT. § 779.02(5) is the civil theft by contractor 

provision. This provision states, in relevant part:

[A]ll moneys paid to any prime contractor ... by any owner 

for improvements, constitute a trust fund ... to the amount 

of all claims due or to become due or owing from the prime 

contractor ... for labor, services, materials, plans, and 
No. 2021AP1985

11

specifications used for the improvements, until all the claims 

have been paid .... The use of any such moneys by any 

prime contractor ... for any other purpose until all claims, 

expect those which are the subject of a bona fide dispute and 

then only to the extent of the amount actually in dispute, 

have been paid in full or proportionally in cases of a 

deficiency, is theft by the prime contractor .... 

Id.3“By its terms, ... § 779.02(5) makes misappropriation of contractor trust funds 

punishable as a theft under WIS. STAT. § 943.20.” Tri-Tech Corp. of Am. v. 

Americomp Servs., Inc., 2002 WI 88, ¶2, 254 Wis. 2d 418, 646 N.W.2d 822. 

Section 943.20(1)(b), in turn, provides criminal penalties for whoever, “[b]y virtue 

of his or her office, business or employment,” has “possession or custody of money

... of another” and “intentionally uses, transfers, conceals, or retains possession of 

such money, ... without the owner’s consent, contrary to his or her authority, and 

with intent to convert to his or her own use or to the use of any other person except 

the owner.” 

¶29 In addition to criminal penalties for violations of WIS. STAT. § 943.20, 

civil remedies may also be awarded for such violations. WISCONSIN STAT.

§ 895.446(3) “provides a civil treble damages remedy to victims of certain 

intentional property crimes [and] includes ... § 943.20 as one of the predicate 

criminal offenses for which the remedy is available.” Tri-Tech, 254 Wis. 2d 418, 

¶2.4 Section 895.446(1) provides that “[a]ny person who suffers damage or loss by 

 

3

 This case also involves WIS. STAT. § 779.16, the theft-by-contractor statute for public 

projects, because the Andrew S. Douglas School is owned by the public. However, WIS. STAT.

§§ 779.02 and 779.16 are substantially the same. See Century Fence Co. v. American Sewer 

Serv., Inc., 2021 WI App 75, ¶9 n.6, 399 Wis. 2d 742, 967 N.W.2d 32. Therefore, we do not 

separately address § 779.16.

4

 In Tri-Tech Corp. of America v. Americomp Services, Inc., 2002 WI 88, ¶2, 254 Wis. 2d 

418, 646 N.W.2d 822, the court refers to WIS. STAT. § 895.80 (2001-02), which was amended in 

2004 by 2003 Wis. Act 138, §§ 19-25, and renumbered to WIS. STAT. § 895.446 by 2005 Wis. Act 

155, § 70. As to attorney fees, both versions of the statute allow for recovery of “[a]ll costs of 
No. 2021AP1985

12

reason of intentional conduct ... that is prohibited under [§] 943.20 ... has a cause 

of action against the person who caused the damage or loss.” “The burden of proof 

in a civil action under sub. (1) is with the person who suffers damage or loss to prove 

a violation of [§] 943.20 ... by a preponderance of the credible evidence.” 

Sec. 895.446(2). 

¶30 WISCONSIN STAT. § 895.446(3) authorizes the following damages and 

costs for violations under § 895.446(1):

(3) If the plaintiff prevails in a civil action under 

sub. (1), he or she may recover all of the following:

(a) Actual damages, including the retail or 

replacement value of damaged, used, or lost property, 

whichever is greater, for a violation of [§] 943.20 ....

(b) All costs of investigation and litigation that were 

reasonably incurred, including the value of the time spent by 

any employee or agent of the victim.

(c) Exemplary damages of not more than 3 times the 

amount awarded under par. (a). No additional proof is 

required under this section for an award of exemplary 

damages under this paragraph.

 

investigation and litigation that were reasonably incurred.” See § 895.446(3)(b); WIS. STAT.

§ 895.80(3)(b) (2001-02). Regarding exemplary damages, the only difference between the two 

versions of the statutes is that the prior version allowed for recovery of “treble damages,” whereas 

the current version allows for recovery of “[e]xemplary damages of not more than 3 times the 

amount awarded under par. (a) [actual damages].” See § 895.446(3)(c); § 895.80(3)(a) (2001-02). 

The parties do not argue that this statutory change makes any difference to our interpretation of 

Tri-Tech or to the outcome in this matter. In discussing Tri-Tech, this opinion substitutes the 

current numbering of the statute for the prior numbering.
No. 2021AP1985

13

“[A]ttorney fees are included with the meaning of ‘costs of investigation and 

litigation’ under ... § 895.446(3)(b).” Estate of Miller v. Storey, 2017 WI 99, ¶49, 

378 Wis. 2d 358, 903 N.W.2d 759 (quoted source omitted).

5

¶31 In Tri-Tech, our supreme court examined the interplay between WIS.

STAT. §§ 779.02(5), 943.20, and 895.446. The court concluded that “the treble 

damages remedy of WIS. STAT. § [895.446] is available for civil theft by contractor 

under ... § 779.02(5), by operation of WIS. STAT. § 943.20.” Tri-Tech, 254 Wis. 2d

418, ¶43. 

¶32 However, the supreme court further concluded that specific 

requirements must be satisfied in order to establish a violation of the criminal 

theft-by-contractor provision and thereby unlock exemplary damages under WIS.

STAT. § 895.446(3). See id., ¶¶24, 43. Specifically, in order to qualify for 

exemplary damages, “the elements of both the civil and the criminal statutes [must 

be] proven, albeit to the civil preponderance burden of proof.” Id., ¶24. “Stated 

differently, the basis of liability for criminal theft by contractor is a violation of the 

trust fund provisions of WIS. STAT. § 779.02(5), plus the criminal intent required by 

WIS. STAT. § 943.20(1)(b).” Id., ¶24 (alteration to original) (citing State v. Wolter, 

85 Wis. 2d 353, 362-63, 270 N.W.2d 230 (Ct. App. 1978), for the proposition that 

criminal intent is the difference between civil and criminal theft by contractor). 

“Indeed, it is specific criminal intent that makes the civil offense punishable 

criminally: ‘some additional element of culpability, whether it be denominated as 

wrongful, criminal, fraudulent, felonious, or wrongfully fraudulent, must be shown 

 

5

 For ease of reading, going forward, this opinion refers to “attorney fees” when discussing 

WIS. STAT. § 895.446(3)(b).
No. 2021AP1985

14

to sustain a criminal conviction for theft by contractor.’” Id., ¶30 (quoted source 

omitted).

¶33 The intent element for criminal theft by contractor under WIS. STAT.

§§ 943.20(1)(b) and 779.02(5) is “specific criminal intent, to-wit, that the defendant 

knowingly retained possession of or used contractor trust funds without the owner’s 

consent, contrary to [the defendant’s] authority, and with intent to convert such 

funds for [the defendant’s] own use or the use of another.” Id., ¶2.

¶34 As we discuss in more detail below, the parties agree—and the circuit 

court determined—that an award of exemplary damages and attorney fees under 

WIS. STAT. § 895.446(3) is discretionary rather than mandatory. See, e.g.,

§ 895.446(3) (“If the plaintiff prevails in a civil action under sub. (1), he or she may

recover” actual damages, all costs of investigation and litigation reasonably 

incurred, and “exemplary damages of not more than 3 times” the actual damages.

(emphasis added)). The parties further agree that the court’s decision denying

exemplary damages and partially denying attorney fees is reviewed for an erroneous 

exercise of discretion. 

B. The circuit court’s decision.

¶35 In reaching its determinations, the circuit court first explained that 

awards of exemplary damages and attorney fees are discretionary rather than 

mandatory. The court then separately addressed Thunderbird’s requests for 

exemplary damages and attorney fees. With regard to exemplary damages, the court 

concluded that Thunderbird had not established the type of “egregious conduct

necessary to warrant” their imposition, and that “[n]othing about the course of 

conduct related to those contracts justifies the imposition of exemplary damages.” 

The court noted Defendants’ “ongoing” and “legitimate” concerns regarding 
No. 2021AP1985

15

insurance issues and “needing the [Douglas] contract to be signed.” The court also 

observed that “[b]oth [parties] agree that defendant[s] [were] not required to 

segregate the funds [they] received for each project in this case” but that “it seems 

to be an open question in Wisconsin whether having a line of credit available to pay 

any subcontractors satisfies the requirement that the assets of the trust be preserved.”

After discussing pertinent case law, the court stated that “because the law is 

uncertain on this point, I am not going to impose exemplary damages on defendants

for [their] use of this method.” The court also found that Williams “testified 

convincingly and without contradiction regarding the line of credit and so I conclude

his use of funds in his co-mingled account while having available a line of credit is 

not the type of conduct which deserves imposition of exemplary damages.” 

¶36 Regarding attorney fees, the circuit court stated it would not award 

Thunderbird all of the fees requested, such as those related to the original filing or 

for the two-day hearing on exemplary damages and attorney fees. Again, the court

noted that “there were legitimate issues” that would make attorney fees for this part 

of the litigation inappropriate. However, the court awarded Thunderbird attorney 

fees incurred for addressing Defendants’ arguments on summary judgment. The 

court stated that, “given the posture of this case with requests for admissions on file 

with no response,” “[i]t was clear once that motion [for summary judgment] had 

been filed [by Thunderbird, that Thunderbird] was going to recover and the 

[Defendants’] briefing and response was no response at all, practically, and 

[Thunderbird] then had to file a reply.” 

¶37 Both parties construe the circuit court’s decision on exemplary 

damages and attorney fees to have been based, at least in part, on a conclusion that

Thunderbird had not established the requisite intent element as required by Tri-
No. 2021AP1985

16

Tech, discussed above. Based on this assumption, Thunderbird argues that the court 

erroneously exercised its discretion in reaching this conclusion, whereas Defendants

argue that the court properly exercised its discretion in this regard. 

¶38 But Defendants also argue (as they did in their post-trial circuit court 

brief) that, even if Thunderbird had satisfied the intent element, the court could

nevertheless, in its exercise of discretion, decline to award exemplary damages (and 

presumably, attorney fees).

6

 It is clear from the court’s statements that the court 

based its ruling at least in part on its conclusion that the award of exemplary 

damages and attorney fees under WIS. STAT. § 895.446(3) is discretionary rather 

than mandatory, even assuming the intent element as articulated in Tri-Tech is 

satisfied. For example, the court led its discussion on these issues by observing that 

§ 895.446(3) states that a court “may” make such awards, which the court stated 

“ordinarily suggests that the recovery is permitted, not required, and thus is subject 

to the exercise of discretion.” The court also discussed pertinent case law, which 

we discuss in more detail below, that supports the conclusion that such awards are 

discretionary. In denying exemplary damages, the court summarized its rationale 

as follows: “In sum, I conclude [that Thunderbird] has failed to establish the type 

of egregious conduct necessary to warrant the imposition of exemplary damages.”

¶39 In addition, during a pretrial ruling in which the circuit court allowed 

Defendants to introduce emails and other evidence at trial, the court stated that the 

evidence was relevant to the issue of intent as explained in Tri-Tech, but the court 

also offered another basis for its admission: “I’m also allowing ... this evidence 

 

6

 The parties do not separately discuss exemplary damages and attorney fees under WIS.

STAT. § 895.446(3). Rather, the parties’ arguments appear to focus on the issue of exemplary 

damages while presuming that all of the arguments pertaining to that issue also pertain to the issue 

of attorney fees. 
No. 2021AP1985

17

because exemplary damages and attorney’s fees are discretionary with the court and 

the evidence may bear on the exercise of the court’s discretion.” This further 

demonstrates that the court considered Defendants’ culpability and the 

egregiousness of the conduct, not simply for purposes of determining the intent issue 

under Tri-Tech, but also for purposes of exercising its discretion apart from the TriTech analysis.7

¶40 Moreover, the circuit court awarded partial attorney fees under WIS.

STAT. § 895.446(3), which both the court and the parties appear to agree also 

requires a finding of the requisite intent under Tri-Tech. Thus, if the court

concluded that Thunderbird failed to establish intent, it is unclear why it would have

awarded attorney fees under § 895.446(3). For purposes of this decision, however, 

we need not determine whether the court did or did not conclude that Thunderbird 

proved intent. First, Defendants do not challenge the court’s award of partial 

attorney fees on the ground that intent was not established. Second, our decision in 

this case does not rest on the issue of intent, but instead on whether—assuming the 

intent element was satisfied—the court properly exercised its discretion.

¶41 For the reasons we now discuss, we conclude that Thunderbird has 

failed to show that the circuit court erroneously exercised its discretion in denying 

exemplary damages and awarding only partial attorney fees under WIS. STAT.

§ 895.446(3). Accordingly, we do not address the parties’ various arguments 

regarding intent. See Barrows v. American Fam. Ins. Co., 2014 WI App 11, ¶9, 

 

7

 Putting aside the issue of specific, legal intent as defined in Tri-Tech, an individual’s 

subjective intent or state-of-mind is indisputably relevant to that person’s level of culpability and 

the egregiousness of the conduct at issue. Thus, although the court stated that “[t]he ongoing 

concerns regarding insurance coverage and signing the contract demonstrate there was not specific 

intent to steal [Thunderbird’s] money which was owed,” it is not clear that this statement is a 

specific conclusion that the intent element under Tri-Tech was not satisfied.
No. 2021AP1985

18

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.”); Maryland Arms 

Ltd. P’ship v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15 

(“Typically, an appellate court should decide cases on the narrowest possible 

grounds.”).

C. Thunderbird fails to show that the circuit court erroneously exercised its 

discretion in denying exemplary damages and in awarding only partial attorney 

fees under WIS. STAT. § 895.446(3). 

¶42 As stated, Defendants argue that, even if Thunderbird had satisfied the 

intent and other elements of criminal theft by contractor, the circuit court’s 

determinations should nevertheless be affirmed because the court was not required

to award exemplary damages or full attorney fees; rather, as the court concluded, 

such awards are discretionary. As also noted, we conclude that the court’s denial of 

exemplary damages and its partial award of attorney fees were based, at least in part,

on the court’s exercise of this discretion separate from any conclusion it may have 

reached regarding the intent element in Tri-Tech. 

¶43 Thunderbird does not dispute Defendants’ argument that a court may 

decline to award exemplary damages and attorney fees even when the elements of 

criminal theft by contractor are satisfied. Thunderbird agrees that the awards at 

issue are discretionary or, as Thunderbird states, “permissive” rather than 

mandatory. See Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 

1994) (we may treat as a concession a proposition asserted in a respondent’s brief 

and not disputed in the reply brief). Although we could rely exclusively on 

Thunderbird’s concession on this point, we further note that case law and persuasive 

authority support the conclusion that exemplary damages and attorney fees under 

WIS. STAT. § 895.446(3) are discretionary and are not required to be awarded, even 
No. 2021AP1985

19

when the requisite elements of criminal theft by contractor, including intent, are 

established. The case that most succinctly makes this point is Hookstead v. Beal, 

No. 2020AP895, unpublished slip op. ¶52 (WI App Aug. 5, 2021),8 which states:

“Exemplary damages are not automatically awarded under § 895.446(3) to a 

plaintiff who has met each of the elements of his or her claim under sub. (1), nor are

the damages necessarily trebled.” 

¶44 Similarly, as the circuit court observed, our supreme court in Storey

also discusses the discretionary nature of exemplary damages under WIS. STAT.

§ 895.446(3)(c). See Storey, 378 Wis. 2d 358, ¶69. In Storey, a circuit court 

awarded exemplary damages after a jury awarded actual damages. On appeal, the

supreme court reversed the circuit court’s exemplary damage award, concluding that 

the issue was one for the jury. The supreme court discussed the standard for 

awarding exemplary damages, which it determined were synonymous with punitive 

damages. Id., ¶69 & n.32. Relying on a prior decision involving punitive damages, 

the court concluded:

The judge has the duty to act as the “gatekeeper”

when determining whether the issue of punitive damages is 

properly before the jury. Once the judge has determined that 

the issue of punitive damages is properly before the jury, 

whether to actually award punitive damages in a particular 

case is entirely within the discretion of the jury. 

Id., ¶69 (footnote and quoted source omitted). In other words, “[a]lthough the judge 

initially determines whether exemplary damages are an appropriate issue to be 

presented to the trier of fact, it is within the discretion of the trier of fact [in that 

case, the jury] to determine whether to actually award exemplary damages [under 

 

8

 See WIS. STAT.RULE 809.23(3)(b) (an unpublished opinion that is authored by a member 

of a three-judge panel on or after July 1, 2009, may be cited for persuasive authority).
No. 2021AP1985

20

§ 895.446(3)(c)] and, if so, in what amount.” Id. The court further noted that “in 

some instances, the judge is also the trier of fact and it would be appropriate in that 

instance for the judge to determine whether to award exemplary damages and the 

amount of the award.” Id., ¶70 n.33. We agree with the circuit court in this case 

that Storey “strong[ly] ... support[s] the notion that [§] 895.446(3) should be 

interpreted as discretionary rather than mandatory.”

¶45 The circuit court also relied on a case cited by Defendants, Stangel v. 

Stangel, 593 B.R. 607, 617 (Bankr. E.D. Wis. 2018), in which an Eastern District 

of Wisconsin bankruptcy court interpreted Storey as conclusively resolving the 

issue of whether WIS. STAT. § 895.446(3) is discretionary or mandatory. In Stangel, 

the court analyzed Storey and two other Wisconsin cases (discussed below), and 

concluded, “[T]he case law is clear that exemplary damages under WIS. STAT.

[§] 895.446(3)(c) are discretionary, and that the Court must make a reasonable 

inquiry and examination of the facts ... to determine whether exemplary damages 

are appropriate.” Stangel, 593 B.R. at 617 (alteration to original).

¶46 The two other Wisconsin cases upon which the Stangel court relied 

likewise support the position that an award of exemplary damages is within the 

circuit court’s discretion. In Shopko Stores, Inc., this court interpreted a provision, 

WIS. STAT. § 943.51(2) (1987-88),

9 with language nearly identical to that in WIS.

 

9

 At that time, WIS. STAT. § 943.51(2) (1987-88) provided:

In addition to sub. (1) [providing for actual damages], if the person 

who incurs the loss prevails, the judgment in the action may grant 

any of the following:

(a) 1. Exemplary damages of not more than 3 times the 

amount under sub. (1)(a) and (b).
No. 2021AP1985

21

STAT. § 895.446(3)(c), and concluded that “may” in that provision means 

“exemplary damages are not mandatory.” Shopko Stores, Inc. v. Kujak, 147 

Wis. 2d 589, 600, 433 N.W.2d 618 (Ct. App. 1988). We further concluded that the 

plaintiff’s claim for exemplary damages in that case “cannot be resolved in a 

principled fashion on summary judgment,” explaining:

Because punitive or exemplary damages are 

analyzed by considering the nature of the wrongdoer’s 

conduct, ... there is always the question of whether they 

shall be awarded at all.... “It is a generally accepted rule 

that once the court determines that the evidence merits 

submitting the punitive damage issues to the jury, it is 

entirely within the discretion of the jury to determine 

whether damages should be awarded at all and to determine 

the amount which should be awarded.”

Thus, while proof of [the defendant’s] retail theft is 

sufficient to subject her to exemplary damages, she may 

escape an award of such damages altogether if, in the 

judgment of the fact-finder, her offense does not warrant 

“the added sanction of a punitive damage to deter others ....” 

Jean Valjean, for example, if sued in a civil action under a 

statute such as [§] 943.51 [(1987-88)], might have escaped 

punitive damages for his theft of bread to feed his family.

Id. at 601-02 (citations and quoted sources omitted). Similarly, in Stathus v. Horst, 

2003 WI App 28, 260 Wis. 2d 166, 659 N.W.2d 165, we concluded:

Whether to award treble damages under [the prior version 

of] WIS. STAT. § 895.446(3)(a), is a matter left to the 

discretion of the trial court. We will uphold that ruling as 

long as the trial court did not erroneously exercise its 

discretion, which requires a “reasonable inquiry and 

examination of the facts” to reach a reasonable conclusion.

 

2. No additional proof is required for an award of 

exemplary damages under this paragraph.

Shopko Stores, Inc. v. Kujak, 147 Wis. 2d 589, 591 & n.1, 433 N.W.2d 618 (Ct. App. 1988).
No. 2021AP1985

22

(Footnote omitted); see also Laughland v. Beckett, 2015 WI App 70, 365 Wis. 2d

148, ¶34, 870 N.W.2d 466 (an “award of punitive damages is within the discretion 

of the factfinder”).

¶47 Although these cases address exemplary damages pursuant to WIS.

STAT. § 895.446(3), we see no principled rationale for distinguishing an award of

attorney fees under that same statute, nor do the parties advance any such 

distinction.

¶48 As noted, Thunderbird does not dispute that the circuit court was not 

required to award exemplary damages or all attorney fees, even upon a finding of 

the requisite intent. Instead, Thunderbird argues that the court nevertheless 

erroneously exercised its discretion because its decision was based on a series of 

legal errors. But all of the legal errors Thunderbird alleges relate only to whether 

the court erred in determining that the intent element of criminal theft by contractor 

was not satisfied, not to the court’s inherent exercise of its discretion, assuming that 

the intent element was satisfied. Thunderbird makes no separate argument as to 

how any of its alleged legal errors affect our analysis of whether the court properly 

exercised its discretion assuming intent was established. And based on the court’s 

comments, we cannot conclude that its discretionary determinations were predicated 

on a determination that Thunderbird failed to establish the intent element as set forth 

in Tri-Tech.

¶49 Thunderbird’s only response with respect to the discretionary nature 

of such awards is the conclusory assertion that “the circuit court had a developed 

record before it, including a history of discovery misconduct by Defendants and 

unanswered admissions. This is an appropriate exemplary damages case.” 

Thunderbird’s argument on this point is undeveloped and need not be considered. 
No. 2021AP1985

23

See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (we need 

not address undeveloped arguments). Thunderbird does not explain, for example, 

how Defendants’ conduct during the litigation, including purported discovery 

violations, relate to a discretionary determination of whether exemplary damages 

(or attorney fees) should be awarded as a remedy for its violation of the criminal 

theft by contractor statute. 

¶50 Based on the record and Thunderbird’s lack of any developed 

argument on this point, we conclude that Thunderbird fails to show that the circuit 

court erroneously exercised its discretion with respect to either exemplary damages 

or attorney fees. See Gaugert v. Duve, 2001 WI 83, ¶44, 244 Wis. 2d 691, 628 

N.W.2d 861 (We sustain a discretionary act where the trial court “‘examined the 

relevant facts, applied a proper standard of law, and, using a demonstrated rational 

process, reached a conclusion that a reasonable judge could reach.’” (quoted source 

omitted)).

II. Attorney Fees Under WIS. STAT. § 802.05(3) 

and WIS. STAT. § 802.12(2).

¶51 Thunderbird argues that the circuit court erroneously exercised its 

discretion in failing to grant Thunderbird’s request for attorney fees under WIS.

STAT. §§ 802.05(3) and 802.12(2). Whether to award attorney fees under these 

provisions is left to the court’s discretion and is therefore reviewed by this court for 

an erroneous exercise of discretion. See Ten Mile Invs., LLC v. Sherman, 2007 WI 

App 253, ¶1 n.2, 306 Wis. 2d 799, 743 N.W.2d 442 (addressing § 802.05(3)); Alt v. 

Cline, 224 Wis. 2d 72, 92-93, 589 N.W.2d 21 (1999) (addressing § 802.12(2)).

¶52 Thunderbird’s argument is predicated almost exclusively on its 

assertion that the circuit court “forgot” to rule on these requests. It asks that we 
No. 2021AP1985

24

“reverse and remand for consideration of those motions.” Because we conclude that 

Thunderbird’s predicate assertion is not supported, and Thunderbird does not 

advance any other developed argument in support of its position, its arguments fail. 

Before explaining our conclusion, we first provide additional background.

¶53 As to Thunderbird’s request for attorney fees under WIS. STAT.

§ 802.05(3), we reiterate the following. In their motion for summary judgment, 

Defendants requested sanctions against Thunderbird under § 802.05(3) for filing 

what Defendants claimed was a meritless complaint. In response, Thunderbird 

argued that it should be awarded attorney fees pursuant to that provision for having 

to respond to Defendants’ meritless sanctions request. See § 802.05(3) (“If 

warranted, the court may award to the party prevailing on the motion [under 

§ 802.05] reasonable expenses and attorney fees incurred in presenting or opposing 

the motion.”). The circuit court denied Defendants’ request for sanctions, stating

that Defendants had not complied with the requirement in § 802.05(3)(a)1. that a 

request for sanctions be filed by separate motion. The court deferred ruling on 

Thunderbird’s request for attorney fees related to its response to Defendants’ 

sanctions request. 

¶54 With regard to Thunderbird’s request for attorney fees under WIS.

STAT. § 802.12(2) as a sanction for alleged discovery violations, the pertinent facts 

are as follows. Approximately a month prior to the circuit court’s order granting 

summary judgment to Thunderbird, Thunderbird issued a subpoena duces tecum to 

BMO Harris Bank for certain bank records of Defendants. Defendants moved to 

quash the subpoena and Thunderbird filed a response. A day later, the court issued 

its ruling on summary judgment and reserved ruling on the bank records issue, 

urging the parties to attempt to resolve this issue, along with the issues of exemplary 

damages and attorney fees on the theft-by-contractor claims. 
No. 2021AP1985

25

¶55 Following additional submissions from the parties, the circuit court 

held a hearing on the motion to quash. The court again reserved ruling on the motion 

and instead ordered Defendants to “provide responses to [Thunderbird’s] previously 

served written discovery,” and to produce Williams for deposition. The court stated 

that it was “trying to thread the needle” in terms of allowing Thunderbird “a fair 

opportunity for discovery,” while recognizing that the bank documents could 

contain “other information that has nothing to do with this.” At one point, the court 

also directed the following inquiry to Thunderbird’s counsel: “It does seem like a 

very broad request. I mean it’s a given that the payment wasn’t made, so what 

interest does [Thunderbird] have in knowing about all the other things that might be 

contained in those bank records?” The court stated that if the parties were not able 

to resolve the discovery issues, the court would revisit the motion to quash. 

¶56 Defendants filed a response to discovery. Defendants objected on 

various grounds to Thunderbird’s request to “[p]rovide copies of all bank statements 

for American Design from January 1, 2018 to the present,” stating they would 

“produce documentation sufficient to show when it received payment from MPS.” 

Defendants also provided redacted bank statements. 

¶57 A few weeks prior to trial, Thunderbird moved for sanctions, 

including attorney fees, pursuant to WIS. STAT. § 804.12, based on what 

Thunderbird alleged were Defendants’ discovery violations for failing to produce 

the bank records. Thunderbird requested default judgment granting Thunderbird 

treble damages and reasonable litigation costs under WIS. STAT. § 895.446(3). In 

the alternative, it requested an order granting Thunderbird an adverse inference that 

the withheld information would conclusively support a finding of the requisite intent 

to support exemplary damages and attorney fees under that provision. Thunderbird 

also requested an order prohibiting Defendants from relying on any documents in 
No. 2021AP1985

26

further proceedings that had not been produced, and an order granting Thunderbird 

attorney fees and costs incurred for bringing its motions for sanctions.

¶58 At a pretrial hearing primarily addressing other issues, the circuit 

court also addressed the pending motions, noting:

I know there’s the motion for sanctions and so forth. I’m not 

going to rule on that right now ... but I will tell you I’m 

unlikely to grant a default as requested. That would be in 

the unlikely category. And on the other ones, it’s hard to 

rule in the abstract. I mean, I can read your brief. I 

understand what you’re saying and why you’re asking for it, 

but I’m reserving on the request, because [counsel for 

Defendants] might use a document one way versus another 

way. And if he did it in the first way, maybe your motion 

will be well-founded, but maybe if he’s using that document 

for a second purpose, it might not be. So it’s just very 

difficult, at least in my opinion, to make advanced rulings on 

those sort of things. I’m not denying anything, I’m just 

holding that in abeyance pending the actual trial playing out, 

okay? 

In response, counsel for Thunderbird stated: “We kind of expected that, your 

Honor. We understand that. We’re obviously not—we’re maintaining our motions, 

but we understand the court won’t probably rule on those until later.” On the same 

day of the pretrial conference, Defendants provided additional bank records, again 

with redactions. 

¶59 A few months after trial, the circuit court issued its oral ruling on the 

issue of exemplary damages and attorney fees under WIS. STAT. § 895.446(3). 

Following the court’s ruling granting partial attorney fees under that provision, the 

following exchange occurred:

[THUNDERBIRD’S COUNSEL]: There were 

related motions, you know, motions to dismiss and motions 

for sanctions that we raised around the same time that we did 

the summary judgment. I don’t know if the court is taking a 

position on whether those are included in what is being 

awarded. 
No. 2021AP1985

27

THE COURT: I forgot about the motion for 

sanctions and so forth. Let’s put it this way, the original 

putting together the motion for summary judgment I’ll not 

award, okay? But once that was in the lap, so to speak, of 

the defendants and they reviewed your motion and then 

based on what they did thereafter, you shouldn’t have had to 

keep responding until the point where the summary 

judgment was granted; does that help? 

[THUNDERBIRD’S COUNSEL]: Yeah, we’ll take 

a shot at trying to figure out what that is, your Honor. 

THE COURT: I’m sorry I can’t be more exact, but 

if you guys can’t figure out a number, come back to me and 

I’ll decide whatever it is, okay? 

[THUNDERBIRD’S COUNSEL]: Fair enough, 

your Honor. 

Thus, the record shows that, when reminded by Thunderbird’s counsel of the 

remaining requests for attorney fees, the court took up the issue and again 

determined that the attorney fees it had awarded under § 895.446(3) were

appropriate. In other words, the court denied Thunderbird’s requests for additional 

attorney fees, awarding no further amounts under WIS. STAT. § 802.05(3) or WIS.

STAT. § 802.12(2), a determination that was consistent with the court’s prior stated 

concerns about the broad nature of the request and the relevance of the bank records. 

We therefore disagree with Thunderbird’s statements that “no ruling on attorney 

fees for those motions was ever provided” and that the court “never addressed 

Thunderbird’s sanctions motions in spite of requests to do so.” As a result, to the 

extent that Thunderbird’s argument is predicated on the premise that the court 

erroneously exercised its discretion because it “forgot” to rule on the motions, that 

argument is unfounded. 

¶60 We also reject Thunderbird’s arguments for additional reasons. First, 

we note that Thunderbird focuses almost exclusively on its request for attorney fees 

as a result of alleged discovery violations under WIS. STAT. § 802.12(2). With 
No. 2021AP1985

28

respect to its request for attorney fees under WIS. STAT. § 802.05(3), Thunderbird 

presents no developed argument as to how the circuit court erroneously exercised 

its discretion. It argues only that the court “forgot” to rule on this issue, an argument 

we’ve already rejected, and makes a conclusory argument that Defendants’ “motion 

for frivolous action sanctions was completely without basis and was denied by the 

circuit court.” We decline to consider this inadequately developed argument. See 

Pettit, 171 Wis. 2d at 646. 

¶61 As to attorney fees for alleged discovery violations under WIS. STAT.

§ 802.12(2), aside from its now-rejected argument that the circuit court “forgot” to 

address this issue, Thunderbird likewise fails to develop an argument supporting its 

position that the court’s denial constituted an erroneous exercise of discretion. It 

argues that “Thunderbird’s motion for discovery sanctions was far from trivial. It 

was based on repeated egregious discovery violations” and that “[n]ot only did 

Defendants suffer no consequences for these violations, they benefitted greatly 

because Defendants successfully prevented crucial damning evidence from entering

the record.” This does not constitute a developed argument that the court 

erroneously exercised its discretion in declining to award additional attorney fees 

for alleged discovery violations. See Pettit, 171 Wis. 2d at 646.

¶62 Further, as noted, at the time of the circuit court’s ruling on additional 

attorney fees, Thunderbird had already been granted summary judgment on its 

breach-of-contract and theft-by-contractor claims due to Defendants’ failure to 

respond to Thunderbird’s admission requests. The only issues remaining for trial 

were related to exemplary damages and attorney fees. Although Thunderbird states 

that the bank records were “crucial damning evidence” and that Defendants’ 

“benefitted greatly” by their absence, it fails to articulate any connection between 

the bank records and the court’s discretionary determination on the remaining issues 
No. 2021AP1985

29

for trial, particularly given Defendants’ use of a line of credit and Williams’ 

testimony—credited by the court—that American Design always had the ability to 

pay Thunderbird.

¶63 Finally, we agree with Defendants that attorney fees were not 

warranted because there was not a determination that Defendants engaged in 

discovery violations with respect to the bank records. Without such a finding, there 

can be no attorney fees awarded as a sanction. In response to this argument from 

Defendants, Thunderbird argues that this “is Thunderbird’s point—the circuit court 

‘forgot’ about Thunderbird’s sanctions motions and made no reasoned ruling on that 

issue.” As shown above, however, to the extent the court did not explicitly rule on 

whether discovery violations had actually occurred with respect to the bank records, 

Defendants had several opportunities to request a more explicit ruling on that issue 

but did not do so. 

¶64 In sum, Thunderbird failsto establish that the circuit court erroneously 

exercised its discretion in denying Thunderbird additional attorney fees under either 

WIS. STAT. § 803.05(3) or WIS. STAT. § 802.12(2).

CONCLUSION

¶65 For the reasons stated, we affirm the circuit court order denying 

exemplary damages and awarding partial attorney fees under WIS. STAT. § 895.446, 

and its ruling denying additional attorney fees under WIS. STAT. §§ 802.05(3) and 

802.12(2).

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.
No. 2021AP1985

30