COURT OF APPEALS

DECISION

DATED AND FILED

August 5, 2021

Sheila T. Reiff

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. 2020AP435 Cir. Ct. No. 2019CV2816

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

PATRICK S. SWEENEY,

 PLAINTIFF-APPELLANT,

PAMELA A. SWEENEY,

 PLAINTIFF,

 V.

FRANK LIQUOR CO. INC., A WISCONSIN CORPORATION, JOEL FRANK,

JANNA FRANK, JUSTIN FRANK, FAIRVIEW RIDGE LLC, A WISCONSIN 

LIMITED LIABILITY COMPANY, FAIRVIEW RIDGE II LLC, A 

WISCONSIN LIMITED LIABILITY COMPANY AND FAIRVIEW RIDGE III

LLC, A WISCONSIN LIMITED LIABILITY COMPANY,

 DEFENDANTS-RESPONDENTS,

JOHN DOE, JANE DOE, DOE PARTNERSHIPS, XYZ INSURANCE 

COMPANY, ABC INSURANCE COMPANY AND SBCP BANCORP INC., A 

WISCONSIN BANKING ASSOCIATION,

 DEFENDANTS.
No. 2020AP435

2

APPEAL from a judgment of the circuit court for Dane County: 

STEPHEN E. EHLKE, Judge. Affirmed.

Before Kloppenburg, Fitzpatrick, and Graham, JJ.

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. Patrick S. Sweeney appeals a final order and 

judgment dismissing his claims against Frank Liquor Co. Inc., Fairview Ridge 

LLC, Fairview Ridge II LLC, Fairview Ridge III LLC, Joel Frank, Janna Frank, 

and Justin Frank.

1

 Sweeney’s claims arise out of a business relationship he had 

with Joel Frank and Frank Liquor, which spanned several years and ended no later 

than 2013. Sweeney alleges that he is owed various fees for management and 

consulting work.

¶2 We conclude that the circuit court correctly determined that

Sweeney’s claims against the Frank Defendants are barred by the applicable 

statute of limitations. We further conclude that, even if the court committed any 

of the procedural errors Sweeney claims on appeal, any error was harmless. 

Accordingly, we affirm.

 

1

 We refer to this group of defendants collectively as the “Frank Defendants.” We 

sometimes refer to Joel Frank individually as “Frank,” and to Frank Liquor Co., Inc. as “Frank 

Liquor.” For purposes of this opinion, we assume that Joel Frank is an owner or agent of Frank 

Liquor.
No. 2020AP435

3

BACKGROUND

¶3 The allegations in Sweeney’s complaint are hotly contested, but we 

assume that the following factual allegations are true for purposes of reviewing the 

circuit court’s dismissal order.

¶4 In December 2004, Sweeney learned about a commercial real estate 

property available for purchase in Middleton, Wisconsin. Sweeney and Frank 

Liquor formed a limited liability company called Fairview Ridge LLC, which 

purchased the property. The plan was for Sweeney to manage the property, and 

the parties agreed to determine an appropriate management fee at some future

date.

¶5 Sweeney found a tenant and negotiated a lease in 2006. He

anticipated receiving consulting fees for such services. He was not immediately 

paid but believed that he would be compensated when the success of the 

investment could be better determined.

¶6 Then, in preparation for a build-out of the property, Sweeney 

secured the necessary permits and chose a lender. After a loan was secured,

Sweeney requested payment for the management and consulting fees. Joel Frank 

indicated that there were no funds available from the loan to pay those fees and 

that Sweeney would have to wait for a future “cash event” to be compensated.

¶7 In October 2011, the tenant notified Sweeney of its intent to vacate 

the property. The parties agreed that Sweeney would be “promptly” paid an 

additional consulting fee for finding another tenant or a buyer. In January 2013, 

Sweeney found a new tenant and finalized a new lease.
No. 2020AP435

4

¶8 In “late spring of 2013,” Sweeney asked Joel Frank about payment 

for the fees Sweeney was owed.

2

In response to this inquiry, Frank stated that 

“neither [the consulting fees] nor [the management fee] nor any other fees that 

may be due [to Sweeney] would ever be paid.” Sweeney and Frank have not 

spoken since that conversation.

3

¶9 Previously, in July 2012, Sweeney’s residential lender, State Bank of 

Cross Plains, obtained a judgment of foreclosure against Sweeney. Sweeney’s 

mortgage loan had been secured in part by his membership interests in Fairview 

Ridge and two subsequently created entities. As we understand the allegations in 

the complaint, State Bank obtained Sweeney’s membership interests in these 

entities as a consequence of the foreclosure. In the fall of 2013, Sweeney learned

that State Bank sold these membership interests to Frank Liquor.

¶10 We now turn to the procedural events that led to this appeal. On 

October 10, 2019, Sweeney and his wife4filed a lawsuit that, in pertinent part,

 

2

 On appeal, Sweeney asserts that this conversation occurred in April of 2013. We use 

the less specific timeframe alleged in the complaint, “late spring of 2013,” for purposes of our 

review of the circuit court’s decision on the motion to dismiss the complaint.

3

 According to the complaint, a third-party loan Sweeney “was taking” from Fairview 

Ridge was “putting strain” on the business relationship that Sweeney had with Joel Frank. 

Although the complaint makes a number of references to a “third party loan” and a debt that 

Sweeney had incurred to Fairview Ridge, the Frank Defendants contend that the “third party 

loan” was actually an embezzlement perpetrated by Sweeney that resulted in Sweeney pleading 

guilty to federal bankruptcy fraud.

As discussed, for purposes of this appeal, we assume that the allegations in the complaint 

are true. Our opinion does not depend on any of the factual contentions put forward by the Frank 

Defendants.

4

 Sweeney’s wife, Pamela Sweeney, was removed as an appellant to this appeal by order 

of this court because she did not personally sign the notice of appeal. As a result, our jurisdiction 

over this matter is limited to the appeal brought by Patrick Sweeney.
No. 2020AP435

5

makes claims against the Frank Defendants seeking payment of the management 

and consulting fees to which Sweeney alleges he is entitled. These claims are for 

breach of oral contract, breach of written contract, breach of the implied duty of 

good faith and fair dealing, breach of implied contract, promissory estoppel, and 

unjust enrichment. For ease of reference, we refer to these contract and quasicontract claims collectively as Sweeney’s “contract-based claims.”5

¶11 The Frank Defendants moved to dismiss the complaint arguing, 

among other things, that the contract-based claims are barred by the six-year 

statute of limitations set forth in WIS. STAT. § 893.43. Specifically, the Frank 

Defendants argued that the “late spring of 2013,” when Frank allegedly told 

Sweeney he would not be paid any fees, is the latest date on which the statute of 

limitations for Sweeney’s contract-based claims for payment of fees started to run. 

The Frank Defendants further argued that, because the complaint was filed in 

October 2019, the contract-based claims were untimely.

¶12 Sweeney responded with a series of motions, and we provide 

additional facts about how the circuit court addressed these motions below. 

Ultimately, the court concluded that all of Sweeney’s claims against the Frank 

Defendants are barred by the applicable statutes of limitations, and the court 

dismissed his complaint in its entirety.

 

5

 The complaint also included a claim for quantum meruit, but Sweeney does not contest 

the dismissal of that claim on appeal and we discuss it no further.

In addition to the contract-based claims, Sweeney’s complaint also includes various tort 

claims against the Frank Defendants and State Bank, including claims that they conspired to

cause Frank Liquor to breach fiduciary duties it owed to Sweeney so that Frank Liquor could 

obtain Sweeney’s membership interest at a discount price. The circuit court dismissed the tort

claims under the three-year statute of limitations found in WIS. STAT. § 893.57, and Sweeney 

does not contest their dismissal on appeal.
No. 2020AP435

6

¶13 Sweeney appeals the circuit court’s dismissal of his contract-based 

claims against the Frank Defendants.

DISCUSSION

¶14 “A motion to dismiss for failure to state a claim tests the legal 

sufficiency of the complaint.” Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 

312, 331, 565 N.W.2d 94 (1997). In reviewing a circuit court order granting a 

motion to dismiss, we liberally construe the pleadings and accept the facts as set 

forth in the complaint, as well as all reasonable inferences from those facts. Swan 

v. LaFollette, 231 Wis. 2d 633, 637-38, 605 N.W.2d 640 (Ct. App. 1999). 

However, we are “not required to assume as true legal conclusions pled by the 

plaintiffs.” Doe, 211 Wis. 2d at 331. Whether a complaint states a claim is a 

question of law, which we decide de novo, although we benefit from the circuit

court’s analysis. Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶17, 

356 Wis. 2d 665, 849 N.W.2d 693.

¶15 As stated above, this appeal focuses on Sweeney’s contract-based 

claims against the Frank Defendants, which the circuit court dismissed based on 

the applicable statute of limitations. In his appellate briefs, Sweeney asserts in 

summary fashion that the dismissal of these claims was erroneous because the 

court applied the wrong accrual date. Yet, the bulk of Sweeney’s briefs 

concentrate on various asserted procedural errors, including the court’s denial of 

the extension and reconsideration motions that Sweeney filed leading up to the 

court’s decision to dismiss the complaint.

¶16 We begin by briefly discussing the applicable statute of limitations. 

For reasons explained below, we conclude that Sweeney’s contract-based claims 

are time barred and that the circuit court correctly dismissed them. We then turn 
No. 2020AP435

7

to the alleged procedural errors and conclude that any error that the court made

was harmless.

I

¶17 WISCONSIN STAT. § 893.43 provides a six-year statute of limitations

for “an action upon any contract, obligation, or liability, express or implied, 

including an action to recover fees for professional services ....” WIS. STAT.

§ 893.43(1). This statute of limitations applies to claims for breach of contract, 

express or implied. See CLL Assocs. Ltd. P’ship v. Arrowhead Pac. Corp., 174 

Wis. 2d 604, 607, 613, 497 N.W.2d 115 (1993). The parties agree that this sixyear statute of limitations also applies to claims based on a quasi-contract theory, 

including unjust enrichment and promissory estoppel.

6

 See generally Boldt v. 

State, 101 Wis. 2d 566, 578, 305 N.W.2d 133 (1981).

¶18 Sweeney’s contract-based claims are premised upon the allegations

that the Frank Defendants agreed to pay him a management fee for services 

performed from 2003-2006, consulting fees for services performed in 2006, and an 

additional consulting fee for services performed from 2011 until January 2013. 

 

6

 Sweeney’s opening appellate brief also makes references to his claims for “an action 

for accounting” and “set off.” According to Sweeney, these claims are subject to a “catch-all” 

statute of limitations with an unspecified limitations period. Sweeney does not support this 

assertion with citation to authority. During the circuit court proceedings, the Frank Defendants 

argued that the claim for an accounting should be dismissed because the complaint does not 

contain any facts that would give rise to an agency relationship, which is required to prove 

entitlement to an accounting. They also argued that “set-off” is not a freestanding cause of 

action, but is rather a type of relief. The Frank Defendants renew both arguments in their 

response brief on appeal, and Sweeney does not respond to these arguments in his reply brief. 

We therefore deem them conceded. See United Coop. v. Frontier FS Coop., 2007 WI App 197, 

¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (appellant’s failure to respond in reply brief to an 

argument made in response brief may be taken as a concession).
No. 2020AP435

8

Each of Sweeney’s breach of contract claims, as well as his quasi-contract claims 

for promissory estoppel and unjust enrichment, seek payment of these fees.

¶19 The circuit court dismissed Sweeney’s contract-based claims based 

on WIS. STAT. § 893.43(1). The court relied, in part, on Sweeney’s failure to

submit any substantive response to the Frank Defendants’ statute-of-limitationsbased defense. The court referred to Sweeney’s failure to submit a substantive 

response as a concession. However, it also independently determined that the 

Frank Defendants’ defense was meritorious.

¶20 A contract claim “accrues at the moment the contract is breached, 

regardless of whether the injured party knew or should have known that the breach 

occurred.” CLL Assocs., 174 Wis. 2d at 607. As the circuit court explained, the 

alleged breach was based on the non-payment of fees allegedly due to Sweeney. 

Accepting the allegations in the complaint as true, the last moment that the 

contract-based claims could accrue was in the late spring of 2013, when, according 

to the complaint, Joel Frank unequivocally told Sweeney that he would not be paid 

any of these fees.

¶21 Sweeney makes no principled arguments to the contrary. As stated 

above, he did not advance any substantive argument on the merits during the 

circuit court proceedings and, on appeal, he concedes that the six-year statute of 

limitations applies to his breach of contract and quasi-contract claims. For the first 

time in his opening appellate brief, Sweeney asserts that the claims did not accrue 

until “the fall of 2013,” when Sweeney learned that Frank Liquor had purchased 
No. 2020AP435

9

his former membership interests in Fairview Ridge from State Bank.

7 According 

to Sweeney, Joel Frank’s statement that Sweeney would not be paid was, at best,

an “anticipatory breach,” and that Frank Liquor “was not capable of executing the 

breach” prior to the fall of 2013. Sweeney further argues that the “actual breach” 

occurred in the fall of 2013, and, therefore, the fall of 2013 is the correct accrual 

date for his contract-based claims.

¶22 We disagree. Sweeney offers no authority to support his assertion 

that the statement Joel Frank made in the spring of 2013, in which Frank stated 

that Sweeney would never be paid, was an anticipatory breach of contract.

8

 As 

stated above, Sweeney’s contract-based claims are based on a failure to pay 

various fees that Sweeney allegedly earned between 2006 and January 2013. On 

its face, the assertion Frank made in “the late spring of 2013” appears to instead be 

a verbal confirmation that the fees that had not previously been paid to Sweeney 

would never be paid.

¶23 Likewise, Sweeny does not explain in any meaningful or logical way 

how Frank Liquor’s acquisition of membership interests that once belonged to 

 

7

 “Arguments raised for the first time on appeal are generally deemed forfeited.” Schill 

v. Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶45 & n.21, 327 Wis. 2d 572, 786 N.W.2d 177. We 

could decline to address Sweeney’s argument that the fall of 2013 is the correct accrual date on 

grounds that Sweeney forfeited the argument by failing to raise it in the circuit court. However, 

we choose to address this argument and explain why it lacks merit because this determination 

helps illustrate why any procedural error was harmless.

8

 An anticipatory breach occurs when a party, which has not yet been required to perform 

its contractual obligations, has made a “definite and unequivocal manifestation” that it will not do 

so when the time fixed for performance arrives. Wisconsin Dairy Fresh, Inc. v. Steel & Tube 

Prod. Co., 20 Wis. 2d 415, 427, 122 N.W.2d 361 (1963). Sweeney cites Franconia Assocs. v. 

United States, 536 U.S. 129, 144 (2002) for the premise that an anticipatory breach does not 

necessarily start the clock on the statute of limitations for a breach of contract claim. We take no 

issue with that premise, but Franconia Associates does not support Sweeney’s assertion that the 

statement Joel Frank made about payment was an anticipatory breach.
No. 2020AP435

10

Sweeney has any bearing on Fairview Ridge’s failure to pay fees for services 

performed between 2006 and 2013. At best, we understand Sweeney to be 

suggesting that the non-payment of these fees led to the bankruptcy proceedings, 

which led to State Bank’s acquisition of Sweeney’s membership interests, which 

led to Frank Liquor being able to purchase the membership interests from State 

Bank, supposedly at a discount rate. However, even accepting Sweeney’s 

allegations as true, contract-based claims accrue at the time of a breach, CLL 

Assocs., 174 Wis. 2d at 607, not after a string of events that are caused by 

consequences of a breach.9

¶24 Accordingly, we agree with the circuit court that the last alleged 

event that had any bearing on the accrual of Sweeney’s contract-based claims 

occurred when Joel Frank unequivocally told Sweeney that he would not be paid. 

Therefore, the claims accrued at the very latest in the “late spring of 2013,” and, 

giving Sweeney the benefit of all possible doubts, he needed to file his claims no 

later than late spring of 2019. His complaint was filed in October 2019 and was, 

at minimum, several months too late.

10

¶25 The Frank Defendants advance additional arguments as to why 

Sweeney’s complaint fails to state a claim. According to the Frank Defendants, 

 

9

 Sweeney’s argument appears to conflate his contract and tort claims. His claim—that

Frank Liquor breached fiduciary duties and conspired with others to improperly acquire

Sweeney’s membership interests—sounds in tort. See supra n.5. As discussed above, Sweeney 

concedes that his tort claims were properly dismissed under the applicable statute of limitations.

10

 To the extent that Sweeney attempts to make any other contrary arguments on appeal

regarding any statute of limitations and its respective accrual times, we reject them as 

undeveloped and unsupported by binding legal precedent. See State v. Pettit, 171 Wis. 2d 627, 

646-47, 492 N.W.2d 633 (Ct. App. 1992) (stating that we need not consider arguments that are 

unsupported by adequate factual and legal citations or are otherwise undeveloped).
No. 2020AP435

11

Sweeney’s claims are barred by issue preclusion, the statute of frauds, and an

agreement he signed to resolve claims related to his bankruptcy filing. 

Additionally, they contend that Sweeney’s contract-based claims do not involve 

any allegations against Janna Frank, Justin Frank, and two of the Fairview Ridge 

entities, and that this is an independent reason to affirm the dismissal of the 

complaint as to these defendants. Because our determination as to the statute of 

limitations is dispositive, we do not address the Frank Defendants’ alternative 

arguments. Barrows v. American Family Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 

2d 436, 842 N.W.2d 508 (“An appellate court need not address every issue raised 

by the parties when one issue is dispositive.”).

II

¶26 We now turn to Sweeney’s procedural arguments, which center 

around the notion that he was denied meaningful access to the courts. Before 

addressing Sweeney’s procedural arguments, we describe the procedural posture 

of this case in greater detail.

¶27 The Frank Defendants’ motion to dismiss was filed on December 3, 

2019. The circuit court issued a briefing schedule, which established January 2, 

2020, as Sweeney’s deadline to respond.

¶28 It is undisputed that Sweeney was incarcerated at that time. With his 

wife’s assistance, he requested an extension to file a brief in opposition to the 

motion to dismiss. The circuit court granted a thirty-two-day extension, meaning 

that the deadline for the opposition brief was extended to February 3, 2020.

¶29 On January 29, 2020, as that deadline approached, Sweeney’s wife 

requested a second extension. This time, the Frank Defendants objected. The 
No. 2020AP435

12

circuit court denied the request for a second extension and scheduled a hearing on 

the motion to dismiss for March 5, 2020.

¶30 On February 14, 2020, Sweeney filed a motion for reconsideration 

of the denial of his second extension request. The majority of the five-page 

motion described difficulties Sweeney faced responding to the motion to dismiss

from prison. The final sentence of the motion requested that, “in the event the 

court [were to deny his] request for an extension,” the court should “grant the 

[Frank Defendants’] motion to dismiss without prejudice [and] grant leave to 

amend [his] Complaint.” Notably, Sweeney did not actually file any motion for 

leave to amend, nor did he describe how the complaint could be amended to defeat 

the Frank Defendants’ statute of limitations defense.

¶31 Then, on February 28, 2020, Sweeney mailed a “supplemental brief 

in opposition to defendants’ motion to dismiss” to the circuit court. The document 

was received by the court on March 5, 2020, just before the motion to dismiss 

hearing was to occur. The “supplemental brief” again requested additional time to 

respond to the motion to dismiss. It did not address the merits of any of the Frank 

Defendants’ substantive arguments.

¶32 The circuit court held the hearing as scheduled. Neither Sweeney 

nor his wife appeared at the hearing. The court denied Sweeney’s motion for 

reconsideration and struck the supplemental brief as untimely. Then, as stated 

above, the court dismissed Sweeney’s claims based on the applicable statutes of 

limitation—both based on Sweeney’s failure to file a brief and also on the court’s 

independent review of the merits of the defense. The Frank Defendants submitted 

a proposed order which granted summary judgment and dismissed Sweeney’s 

claims “with prejudice and on the merits.” The court signed the order.
No. 2020AP435

13

¶33 Sweeney argues that the circuit court committed multiple errors 

leading up to its decision to dismiss his complaint. Among other things, Sweeney 

argues that the court erred by denying him a second extension of time to file a 

response brief and by denying the corresponding motion for reconsideration, 

which he claims was necessary to allow him sufficient time to prepare a response 

to the Frank Defendants’ motion to dismiss. Sweeney further asserts that the court 

erred when it struck his “supplemental brief” dated February 28, 2020, which, he 

argues, was timely under the prisoner mailbox rule.11 Finally, Sweeney argues 

that the court erred by not granting his request for leave to amend the complaint. 

As we understand it, Sweeney is arguing that, based on these procedural 

violations, his right to meaningful access to the courts was violated. It appears 

Sweeney believes that he was entitled to endless extensions of applicable 

deadlines because the facilities where he was incarcerated did not provide him 

with all the resources that he contends were necessary to submit a response brief.

¶34 We do not conclude that the circuit court committed any procedural 

error, but even if it did, any possible error was harmless. This is because even 

now, more than a year after the court granted the motion to dismiss, Sweeney has 

not identified any legal argument or amendment to the complaint that he could 

have made which would overcome the Frank Defendants’ statute-of-limitations 

defense.

¶35 WISCONSIN STAT. § 805.18(2) provides in pertinent part:

 

11

 See Houston v. Lack, 487 U.S. 266 (1988) (providing that a pro se prisoner’s notice of 

appeal is “filed” for purposes of the filing deadline at the time it is delivered to prison 

authorities).
No. 2020AP435

14

No judgment shall be reversed or set aside or new 

trial granted in any action or proceeding on the ground of ...

error as to any matter of pleading or procedure, unless in 

the opinion of the court to which the application is made, 

after an examination of the entire action or proceeding, it 

shall appear that the error complained of has affected the 

substantial rights of the party seeking to reverse or set aside 

the judgment, or to secure a new trial.

For an error to affect the substantial rights of a party, there must be a reasonable 

possibility that the error contributed to the outcome of the action or proceeding at

issue. Martindale v. Ripp, 2001 WI 113, ¶32, 246 Wis. 2d 67, 629 N.W.2d 698.

¶36 Here, there is no reasonable possibility that the errors asserted by 

Sweeney contributed to the dismissal of his contract-based claims against the 

Frank Defendants. As stated above, the circuit court properly dismissed these 

claims based on the applicable statute of limitations. As also stated above, 

Sweeney disregards the forfeiture rule on appeal and advances a legal argument 

about the accrual of the six-year statute of limitations that he did not advance 

during the circuit court proceedings; yet, as we have determined, this argument 

entirely lacks merit. Sweeney does not identify any other argument that he could 

have advanced, nor does he identify any amendment to the complaint that he could 

have made, to overcome the Frank Defendants’ statute-of-limitations defense. 

Because Sweeney does not show that the outcome would have been different had 

the circuit court allowed him additional extensions, accepted his untimely 

response brief, or granted a motion for leave to amend the complaint, we agree

with the Frank Defendants that, even if any of the asserted procedural errors were

committed by the court, they are harmless.

¶37 In sum, Sweeney has not provided any meritorious response to the 

Frank Defendants’ motion to dismiss despite the additional time he has had to do 

so. Accordingly, we conclude that Sweeney’s contract-based claims are time-
No. 2020AP435

15

barred and that any procedural error made by the circuit court was harmless. 

Therefore, we affirm.

By the Court.—Judgment affirmed.

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

809.23(1)(b)5.