### 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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2020AP435 Cir. Ct. No. 2019CV2816 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

P ATRICK S. S WEENEY , P LAINTIFF - A PPELLANT , P AMELA A. S WEENEY , P LAINTIFF ,
V . F RANK L IQUOR C O . I NC . , A W ISCONSIN C ORPORATION , J OEL F RANK , J ANNA F RANK , J USTIN F RANK , F AIRVIEW R IDGE LLC , A W ISCONSIN L IMITED L IABILITY C OMPANY , F AIRVIEW R IDGE II LLC , A W ISCONSIN L IMITED L IABILITY C OMPANY AND F AIRVIEW R IDGE III LLC , A W ISCONSIN L IMIT ED L IABILITY C OMPANY , D EFENDANTS - R ESPONDENTS , J OHN D OE , J ANE D OE , D OE P ARTNERSHIPS , XYZ I NSURANCE C OMPANY , ABC I NSURANCE C OMPANY AND SBCP B ANCORP I NC . , A W ISCONSIN B ANKING A SSOCIATION , D EFENDANTS .No. 20 20AP435

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 specif ied in W IS . S TAT . R ULE 809.23(3).
¶ 1 PER CURIAM. Patrick S. Sweeney appeals a final order and judg ment dismissing his claims against Frank Liquor Co. Inc. , F airview 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 span ned several years and ended no later than 2013 . Sween e y alleges that he is o wed various fees for management and

consu lting work

. ¶ 2 We conclude that the circuit court correctly determined that Sweeney’s claims against the Frank D efendants are barred by the applicable statute of limitations . We further conclude that, even if the court committed any of th e 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. 20 20AP435

3 BACKGROUND
¶ 3 T he 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
p roperty available for purchase in Middleton, Wis consin

. Sween ey and Frank Liquor formed a limited liability company called Fairview Ridge LLC , which purchased the p roperty. The plan was for Sweeney to manage the p roperty, and
t he parties agreed to determin e an appropriate management fee at some future date

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

. He anticipated receiving consulting fee s for such services

. He was not immediately paid but believed that he woul d be compensated when the success of the investment could b e better determined.
¶ 6 Then, i n preparation for a build

- out of the p roperty , Sweeney secured the necessary permits and chose a lender

. After a loan was secured , Sweeney r equested payment for the m anagement and consulting f ees. Joel Fran k 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 Sween ey of its intent to vacat e the p ro perty. T he parties agreed that Sweeney would be “ promptly ” paid a n additional consulting fee for finding another tenant or a buyer

. In January 2013, Sweeney found a new tenant and finalized a new lease.No. 20 20AP435

4 ¶ 8 In “ late spring of 2013 , ” Sweeney asked Joel Frank about payment for the fees Sweeney was owed

. 2 In resp onse to this inquiry , Frank stated that

“ neither [ the consulting fees ] nor [the m ana gement f ee ] nor any other fees that may be due [to Sweeney] would ever be paid. ” Sweeney an d Frank have not spoken since that conversation

. 3
¶ 9 Previously , i n 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 , S tate Bank obtained Sweeney’s membership interests in these entities a s a consequence of the foreclosure

. In the fall of 2013, Sweeney learned that State Bank sold the se 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 wife 4 filed 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 emb ezzlement 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 c ontentions 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. 20 20AP435

5 makes claims against the Frank D efe ndants 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 con tract, breach of the implied duty of good faith and fair dealing, breach of implied contract, promissory estoppel, and unjust enrichment . For ease of reference, w e refer to these contract and quasi

contract claims collectively as Sweeney’s “contract

- based claims.” 5
¶ 11 The Frank D efendants 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 W IS

. S TAT

. § 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 Def

endants 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 the se motions below. Ult imately, the court concluded that all of Sweeney’s claims against the Frank Defendants are barred by the applicable statute s of limitations , and t he 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 a ddition to the contract

- based claims, Sweeney’s complaint also include s various tort claims against the Frank Defendants and State Bank , including claim s that they conspired to
cause Frank Liquor to breach fiduciary duties it owed to Sweene y 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 W IS

. S TAT

. § 893.57 , and Sweeney does not contest the ir dismissal on appeal.No. 20 20AP435

6 ¶ 13 Sweeney appeals th e 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 W is. 2d 312, 331, 565 N.W.2d 94 (1997). In reviewing a circuit court order granting a motion to dismiss, we liberally co nstrue 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 concl usions pled by the plaintiffs.” Doe , 211 Wis. 2d at 331. Whether a complaint states a claim is a question of law, which we d ecide de novo, although we benefit f rom 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, th is appeal focuse s 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 dismissa l 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 limitation s
. For reasons explained below , w e conclude that Sweeney’s contract

- based claims are time barred and that the circuit court correctly dismisse d them

. We then turnNo. 20 20AP435

7 t o the alleged procedural errors and conclude that any error that the court made

was harmless

.
I
¶ 17 W ISCONSIN S TAT

. § 893.43 provides a six

- year statute of limitation s for “an action upon any contract, obligation, or liability, express or implied, including an action to recover fees for professional services

.... ” W IS

. S TAT

. § 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 six

year statute of limitations also applies to claims based on a quasi

- contract theory, including unjust enrichment and pro missory 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 s upport 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 rel ationship, 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 Sw eeney 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. 20 20AP435

8 Each of Sweeney’s br each 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 W IS

. S TAT

. § 893.43(1)

. T he c ourt relied , in part , on Sweeney’s failure to submit any substantive response to the Frank Defendants ’ statute

- of

- limitations

based defense

. The court referred to Sweeney’s failure to submit a substan tive 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

. A ccepting the allegations in the complaint as true , the last moment that the
contract

- based claims could a ccrue 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, h e did n ot advan ce any substantive argument on the merits during t he circuit court proceedings and , o n appeal, he concedes that the six

- year statute of limitations applies to his breach of contract and quasi

- contract claims. F or the first time in his opening appe llate brief, Sweeney asserts that the claims did not accrue until “ the fall of 2013 , ” when Sweeney learned that Frank Liquor had purchasedNo. 20 20AP435

9 his former me mbers hip interests in Fairview Ridge f rom State Bank

. 7 According to Sweeney, Joel Frank’s statement that Sweeney would not be paid was , at best, an “anticipatory breach , ” and that Fr ank 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 su pport his assertion that the sta tement 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 i ts 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 n ever 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 “A rguments 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 thi s 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 Assoc s. v. United States , 536 U.S. 129, 144 (2002) for the premise that an a nticipatory 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 abou t payment was an anticipatory breach.No. 20 20AP435

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 B ank ’s acqui sition of Sweeney’s membership interests, which led to Frank Liquor being able to purchase the membership in terests from State B ank , supposedly at a discount rate

. However, even accepting Sweeney’ s allegations as true, c ontract

- based claim s acc r ue 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, w e agree with the ci rcuit 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 accr ued at the very latest in the “late spr ing 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 compla int 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

— sound s 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 st atute 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. 19 92) (stating that w e need not consider arguments that are unsupported by adequate factual and legal citation s or are otherwise undeveloped ).No. 20 20AP435

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 t he 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. Am erican Family Ins. Co. , 2014 WI App 11, ¶9, 352 W is. 2d 436, 842 N.W.2d 508 (“An appellate court need not address every issue raised by the parties wh en one issue is dispositive.”).

II
¶ 26 We now turn to Sweeney’s procedural arguments, which center around the notion that he was denied mea ningful access to the courts. Before addressing Sweeney’s procedural arguments , we describe the procedural posture of this case in greater detail

. ¶ 27 The Frank Defendant s ’ motion to dismiss was filed on December 3, 2019. The circuit cour t 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 . T he 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, 2 020, as that deadline approached, Sweeney ’s wife requested a second extension

. This time, t he Frank Defendants objected. TheNo. 20 20AP435

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

cour t [ were to deny his] request for an extension,” t he court should “grant the [Frank Defendants’] motion to dismiss without prejudice [and] grant leave to amend [his] Complaint.” Notably, Sw eeney 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’ s tatute 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

re sp ond to the motion to dismiss. I t did not address the merits of any of the Frank Defe ndants’ 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. 20 20AP435

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 a nd by denying the corresponding motion for reconsideration, which he claims was necessary to allow him sufficient time to prepare a response to the Frank Defenda nts’ motion to dismiss. Sweeney further asserts that the court erred when it struck his “suppl emental brief” dated February 28, 2020, which, he argues, was timely under t he prisoner mailbox rule. 11 Finally, Sweeney argues that the court erred by not grant ing his request for leave to amend the complaint. As we understand it, Sweeney is arguing that , based on the se procedural violations , his right to meaningful access to the courts was violated. I t 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 necessa ry 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 a ny legal argument or amendment to the complaint that he could have made which would overcome the Frank Defendants’ st atute

- of

- limitations defense.
¶ 35 W I SCONSIN S TAT

. § 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. 20 20AP435

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, i t 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.

F or 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 disregard s th e forfeiture rule on appeal and advance s 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 lac ks merit. Sweeney does n ot 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 extension s , accepted his untimely
response brief, or granted a motion for leave to a mend the c omplain t , we agree with the Frank D efendant s that , even if any of the asserted procedural errors were committed by the court, they are harmless

. ¶ 37 In sum , Sweeney has not provide d any meritorious respon se to the Frank Defendants’ motion to dismiss despite the additional time he has had to do so. Accordingly, we conclude that Sweeney’s contrac t

- based claims are time

-No. 20 20AP435

15 barred and that any procedural e rror made by the circuit court was harmless. Therefore , we affirm

.

By the Court.

— Judgment affirmed.
This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)5

.