COURT OF APPEALS

DECISION

DATED AND FILED

January 14, 2020

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. 2018AP2329 Cir. Ct. No. 2011CV8389

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

TAFT PARSONS, JR. AND CAROL PARSONS,

PLAINTIFFS-APPELLANTS,

V.

ASSOCIATED BANC-CORP,

DEFENDANT-RESPONDENT.

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

GLENN H. YAMAHIRO, Judge. Affirmed. 

Before Brash, P.J., Kessler and Dugan, JJ.

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2018AP2329

2

¶1 PER CURIAM. Taft and Carol Parsons (the Parsons) appeal the 

trial court’s order dismissing their claims against Associated Banc-Corp (the 

Bank).1 We affirm.

I. BACKGROUND

¶2 This is not the first time this case has been before us. See Parsons v. 

Associated Banc-Corp, 2016 WI App 44, 370 Wis. 2d 112, 881 N.W.2d 793, 

rev’d, 2017 WI 37, 374 Wis. 2d 513, 893 N.W.2d 212. Given that relevant 

background information has already been set forth in the prior decisions of this 

court and our supreme court, it need not be repeated in its entirety here. 

¶3 Instead, for purposes of this appeal, it suffices to state that this case 

involves a home equity loan and a construction loan obtained by the Parsons from 

State Financial Bank for the construction of a townhouse project in Milwaukee.2 

The project did not proceed as the Parsons had expected, and in 2011, they filed 

suit against the Bank. 

¶4 During the court trial that followed, the Parsons pursued two theories 

of liability: first, they argued that the Bank violated the Wisconsin Organized 

Crime Control Act (WOCCA), specifically WIS. STAT. § 946.83(1) (2017-18)3; 

and second, they claimed that the Bank negligently trained and supervised Aaron 

 

1

 On occasion we refer to Taft Parsons by his first name where particular facts or 

arguments apply to him individually.

2

 Associated Bank subsequently acquired State Financial Bank. 

3

 Although the underlying lawsuit in this matter was filed in 2011 and contains 

allegations dating further back in time, it appears that the current version of the statutory sections 

cited in this opinion have remained the same in all relevant respects. Therefore, all references to 

the Wisconsin Statutes are to the 2017-18 version unless otherwise noted. 
No. 2018AP2329

3

Moeser,

4

the loan officer managing the Parsons’ construction project. The trial 

court found in favor of the Bank and dismissed the Parsons’ claims. 

¶5 We provide additional background information as needed below. 

II. DISCUSSION

¶6 The parties disagree as to the standard of review. The Parsons

submit that they are raising issues of law subject to our de novo review. The Bank 

contends that because the Parsons repeatedly attack the trial court’s factual 

findings and complain that the trial court ignored facts, we should employ the 

clearly erroneous standard of review. 

¶7 Both parties are partially correct. In reviewing the findings in a trial 

to the court, we defer to that court’s superior position in weighing testimony, 

assessing witness credibility, and resolving conflicts in the testimony. See Tang v. 

C.A.R.S. Prot. Plus, Inc., 2007 WI App 134, ¶19, 301 Wis. 2d 752, 734 N.W.2d 

169. We review the evidence in the light most favorable to the findings the trial 

court made and, when more than one reasonable inference can be drawn from the 

credible evidence, we accept the one the trial court drew. See id. Findings of fact 

will not be set aside unless clearly erroneous. WIS. STAT. § 805.17(2). In contrast, 

“[a]n appellate court is not bound by a trial court’s conclusions of law and decides 

the matter de novo.” City of Muskego v. Godec, 167 Wis. 2d 536, 545, 482 

N.W.2d 79 (1992).

 

4

 In 2012, Moeser pled guilty to conspiracy to commit bank fraud in connection with 

another project involving a similar set of facts. See United States v. Moeser, 758 F.3d 793, 796 

(7th Cir. 2014).
No. 2018AP2329

4

¶8 With these standards in mind, we turn to the issues raised by the 

Parsons on appeal.

(1) The trial court did not err when it referenced a foreclosure 

action between the parties in its findings of fact and conclusions 

of law. 

¶9 In its written findings of fact and conclusions of law, the trial court 

began with the following two sentences: 

The Plaintiffs, Taft Parsons Jr. (“Mr. Parsons”) and 

Carol Parsons (“Mrs. Parsons”), brought suit against 

Defendant Associated Banc-Corp (“Associated”) who is 

successor by merger of State Financial Services Corp. for 

damages and expenses incurred when Associated 

foreclosed on their loans. Plaintiffs sued Associated based 

on negligence and the Wisconsin Organized Crime Control 

Act (“WOCCA”).

The Parsons contend the trial court’s reference to foreclosure amounts to an error 

of law. They submit that the first sentence of the trial court’s decision reflects that 

the trial court “did not decide the case that had actually been tried before it.” The 

Parsons make too much of the trial court’s opening sentence. 

¶10 In the paragraphs that followed, the trial court detailed the history 

between the parties, which included the Bank initiating foreclosure proceedings 

against the Parsons in 2005 and the Parsons filing a counterclaim against the Bank

for breach of fiduciary duty.5 The trial court noted that the foreclosure lawsuit 

was subsequently dismissed without prejudice. 

 

5

 We note that the Parsons themselves referenced the foreclosure action filed by the Bank 

in their opening statement during the trial. 
No. 2018AP2329

5

¶11 The trial court then went on to explain why it concluded that the 

Parsons’ claims for violations of WOCCA and negligent training and supervision 

failed. A passing mention of “foreclosure” does not lead us to conclude that the 

trial court decided “a hypothetical issue” as the Parsons suggest. 

(2) The trial court did not err by incorporating the Bank’s proposed 

findings of fact and conclusions of law in its decision. 

¶12 Next, the Parsons argue that because the trial court’s findings of fact 

and conclusions of law mirror those submitted by the Bank “almost word for 

word,” it created the appearance of judicial bias. We disagree.

¶13 This court has previously held it is not error for a trial court to adopt 

a party’s trial brief as its findings of fact and conclusions of law because that 

procedure “[meets] the requirements of [WIS. STAT. § 805.17(2)] for actions tried 

to the court without a jury.”6 See CIT Grp./Equip. Fin., Inc. v. Village of 

Germantown, 163 Wis. 2d 426, 438, 471 N.W.2d 610 (Ct. App. 1991). In any 

event, the Parsons highlight various changes between the two documents. 

Although they suggest that these changes were minor at best, we take a different 

view. Rather than a wholesale adoption of the Bank’s findings of fact and 

conclusions of law, we view these revisions, which included shifting and adding 

paragraphs and revising language, as an indicator that the trial court carefully 

reviewed the Bank’s submission and made modifications where it deemed it 

necessary to do so. 

 

6

 Indeed, the standard Milwaukee County Civil Division Scheduling Order requires that 

the pretrial reports prepared by the parties for a court trial include “proposed findings of fact and 

conclusions of law.” We agree with the Bank that it is presumed that the trial court will make use 

of such documents. 
No. 2018AP2329

6

¶14 Moreover, to the extent that the Parsons’ judicial bias argument 

hinges on their belief that the trial court ignored multiple facts—or acted adversely 

in its rulings concerning the facts—they believe are important, “judicial rulings 

alone almost never constitute a valid basis for a bias or partiality motion.” See 

Liteky v. United States, 510 U.S. 540, 555 (1994). It was the trial court’s job to 

weigh the evidence that was presented and make factual findings. In doing so, the 

trial court was not required to recite the facts and conclusions it rejected along the 

way.

(3) The trial court properly analyzed the Parsons’ claims under 

WOCCA and under the theory of negligent training and 

supervision.

¶15 The Parsons contend that the trial court’s conclusions of law simply 

stated that the Parsons did not meet their burden of proof under WOCCA and 

under the theory of negligent training and supervision. They argue that the trial 

court did not properly analyze either claim.7

(a) WOCCA

¶16 According to the Parsons, the trial court was required to conduct a 

two-step analysis in resolving their WOCCA claim. They submit that the first step 

was to ask whether the Parsons proved that Moeser, the loan officer, engaged in a 

pattern of racketeering activity. See WIS. STAT. § 946.83(1).8 If the answer was 

 

7

 In passing references in their brief, the Parsons assert that the trial court ignored their 

requests that it consider simple negligence and respondeat superior theories of liability. Because 

this assertion is inadequately briefed, we need not review it. See State v. Pettit, 171 Wis. 2d 627, 

646, 492 N.W.2d 633 (Ct. App. 1992).

8

 WISCONSIN STAT. § 946.83(1) provides, in relevant part:

(continued)
No. 2018AP2329

7

yes, they assert that the second step for the trial court was to ask whether the 

Parsons proved the Bank received proceeds with knowledge that they were 

derived from Moeser’s pattern of racketeering activity and then, whether the Bank 

used those proceeds to operate its banking enterprise or used the proceeds to 

acquire title to, or any right, interest, or equity in real property. See WIS. STAT.

§§ 946.82(2), 946.83(1). The Parsons argue that “[t]he [trial] court did neither of 

these required two steps in deciding the Parsons’ WOCCA claim.” 

¶17 The Bank agrees that the first step of the Parsons’ WOCCA claim 

required them to prove a pattern of racketeering activity. A “pattern of 

racketeering activity” under WOCCA is defined as “3 incidents of racketeering 

activity that have the same or similar intents, results, accomplices, victims or 

methods of commission or otherwise are interrelated by distinguishing 

characteristics[.]” WIS. STAT. § 946.82(3). “Racketeering activity” is defined as 

“the attempt, conspiracy to commit, or commission of” specified predicate 

felonies. Sec. 946.82(4). 

¶18 Contrary to the Parsons’ representation that the trial court “did 

neither of the[] required two steps,” in its conclusions of law, the trial court 

specifically stated that they failed to prove any predicate act, let alone a pattern: 

The Bank did not commit any predicate acts at any time in 

its dealings with Mr. and Mrs. Parsons. The Parsons failed 

to carry the burden at trial of proving that any persons 

 

No person who has received any proceeds with knowledge that 

they were derived, directly or indirectly, from a pattern of 

racketeering activity may use or invest, whether directly or 

indirectly, any part of the proceeds or the proceeds derived from 

the investment or use thereof in the acquisition of any title to, or 

any right, interest, or equity in, real property or in the 

establishment or operation of any enterprise.
No. 2018AP2329

8

committed any predicate act. The approval of pay 

applications and the closing statement on the Construction 

Loan by the Bank does not constitute theft, threat to injure 

(extortion), mail fraud, or wire fraud.

¶19 The Parsons have not shown that the trial court’s findings of fact on 

which its legal conclusion was based—namely, the circumstances of the loans, 

Taft’s approvals and knowledge of the project progress, or the nature of the 

parties’ relationship—were against the great weight and clear preponderance of 

the evidence. See Phelps v. Physicians Ins. Co. of Wis., 2009 WI 74, ¶39, 319 

Wis. 2d 1, 768 N.W.2d 615 (explaining that “a finding of fact is clearly erroneous 

when it is against the great weight and clear preponderance of the evidence”

(internal quotation marks and citation omitted)). They simply seek a different 

result without adequately explaining why they are entitled to one. 

¶20 To show the predicate felonies, the Parsons assert that Moeser made 

four payments from Taft’s loan, over Taft’s objections, in which Moeser used fax 

transfers to approve the payments, and the Parsons conclude that this constituted 

wire fraud. In their reply brief, the Parsons additionally claim that there is a fourth 

predicate act of regular fraud because Moeser coerced Taft to sign a closing 

statement. Beyond these conclusory statements, the Parsons do not develop a 

cogent argument identifying the elements of the predicate felonies and how the 

facts satisfy those elements. We will not develop the argument for them. See 

State v. Gulrud, 140 Wis. 2d 721, 730, 412 N.W.2d 139 (Ct. App. 1987) 

(declining to develop an undeveloped argument for the appellant).

¶21 Absent the requisite pattern of racketeering activity, there is no 

liability under WOCCA, and we need not go further in our analysis. See Gross v. 

Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (stating that only dispositive 

issues need be addressed); State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 
No. 2018AP2329

9

514 (Ct. App. 1989) (holding that cases should be decided on the “narrowest 

possible ground”). 

(b) Negligent Training and Supervision

¶22 Next, the Parsons claim that the trial court was required to conduct a 

four-step analysis in resolving their negligent training and supervision claim. At 

trial, they argued that the Bank was negligent in training and supervising Moeser 

because his actions and the Bank’s actions did not follow normal banking 

procedures and sound banking practices. The Parsons argue that the trial court 

failed to correctly analyze the first element; namely, whether the Bank owed a 

duty of care to the Parsons. 

¶23 In order to prove a tort claim for negligent training or supervision, 

the Parsons had to show that the Bank had a duty of care, that the Bank breached 

that duty, that the act or omission of Moeser was a cause-in-fact of the Parsons’ 

injury, and that the act or omission of the Bank was a cause-in-fact of the wrongful 

act of Moeser. See Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250, 267-68, 580 

N.W.2d 233 (1998). 

¶24 The first inquiry, whether the Bank owed a duty of care to the 

Parsons, “involves two aspects: (1) the existence of a duty of ordinary care; and 

(2) an assessment of what ordinary care requires under the circumstances.” See 

Hoida, Inc. v. M&I Midstate Bank, 2006 WI 69, ¶27, 291 Wis. 2d 283, 717 

N.W.2d 17.

¶25 In its conclusions of law on this claim, the trial court held:

The Bank did not have a duty to Mr. Parsons to perform 

due diligence on his behalf, to allow Mr. Parsons to change 

his contractors, to resolve issues with his contractors, to 
No. 2018AP2329

10

keep the project on budget or on schedule, to refrain from 

communicating with his contractors, or to advise him on 

disbursement procedures or appropriateness of payments.

....

... Given the contractual agreement of the parties, 

which clearly provides that such approvals [for pay 

applications on the construction loan] are solely for the 

Bank’s protection, the Bank owed no duty of ordinary care 

to Mr. Parsons with respect to the approval of payment 

applications. See [id., 291 Wis. 2d 283, ¶38].

¶26 The Parsons argue that the contractual terms do not matter to the 

outcome because this is not a contract case. Beyond this assertion, the Parsons do 

not cite Hoida, which is factually similar, or otherwise explain why we should 

disregard it. 

¶27 Based on our reading of Hoida, we conclude that contract terms and 

agreed upon limitations are significant because they shape the duty of ordinary 

care by “set[ting] out what the parties agreed was reasonable under the 

circumstances.” See id. Here, the Bank submits, and the Parsons do not refute, 

that the construction loan agreement did not place liability or responsibility on the 

Bank for approving closing disbursements or draw requests; made it the Parsons’

responsibility to manage the project on schedule and within budget; and allowed

the Bank to communicate directly with all contractors. See Charolais Breeding 

Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 

1979) (stating that failure to refute an argument constitutes a concession). 

¶28 We conclude that the Bank had no duty to the Parsons under the 

circumstances presented. Where there is “no duty under the circumstances, no 

breach occurred, and there [is] not a viable negligence claim.” Hocking v. City of 

Dodgeville, 2009 WI 70, ¶13, 318 Wis. 2d 681, 768 N.W.2d 552. The trial court 
No. 2018AP2329

11

properly concluded that the Bank was not liable on the Parsons’ negligent training 

and supervision claim.

(4) The trial court properly weighed the Parsons’ expert report and 

testimony.

¶29 David Keller was the Parsons’ expert witness in this matter. While 

recognizing that the trial court was not required to accept Keller’s opinion, the 

Parsons nevertheless fault the trial court for not discussing, more thoroughly, 

Keller’s testimony in its findings of fact and conclusions of law. 

¶30 Keller testified at the court trial, and his report was admitted “under 

advisement.” In its written findings of fact, the trial court stated: “Prior to trial, 

the Plaintiffs’ expert, David Keller, had not reviewed the authorization signed by 

Mr. Parsons regarding Pay Application No. 2. When presented with the 

authorization, the expert acknowledged that he didn’t know what the Bank had 

done wrong.” 

¶31 The Parsons argue that this amounts to a misrepresentation and 

mischaracterization of Keller’s testimony. The Bank disagrees and highlights the 

portions of Keller’s testimony that it believes support the trial court’s finding. 

¶32 The parties, therefore, have different interpretations of Keller’s 

testimony and its impact. It was within the trial court’s discretion to weigh the 

expert’s testimony, and it did so here. The weight and credibility of expert witness 

testimony are matters uniquely within the province of the fact finder—here, the 

trial court. See Bloomer Hous. Ltd. P’ship v. City of Bloomer, 2002 WI App 252, 

¶12, 257 Wis. 2d 883, 653 N.W.2d 309. Although the Parsons wish the trial court 
No. 2018AP2329

12

had weighed and analyzed Keller’s testimony differently, this does not amount to 

error.9 

(5) The trial court did not err by not ruling that Moeser’s deposition

testimony raised an adverse inference that could be used against 

the Bank.

¶33 During the trial, the trial court ruled that Moeser was “unavailable” 

under WIS. STAT. § 908.04 and received his deposition transcript as evidence. 

Moeser declined to answer most of the questions posed at the deposition, asserting 

his Fifth Amendment privilege. 

¶34 The trial court indicated that the question of whether there was any 

inference to be drawn from Moeser’s deposition testimony was “a minor issue ...

in the scope of this case” and explained: 

I mean, obviously, [Moeser] has already been convicted in 

Federal Court. We got plenty of testimony in the record as 

to the actions taken by the various significant players to this 

loan, as well as the loan that was the subject of indictment. 

I think, you know, if you want to respond, Mr. Flynn [the 

Parsons’ attorney], in your written closing argument any 

 

9

 The Parsons suggest, without any supporting legal authority, that the trial court erred 

when it did not definitively resolve the parties’ pretrial motions regarding whether Keller’s report 

would be admitted as evidence. We disagree. The Bank argued that Keller’s report was untimely 

and fell short under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In 

addressing the motion, the trial court explained to the Bank:

You’re reserving your right to raise your motion again after the 

trial if that appears to be in any way dispositive. You made a lot 

of good arguments under the Daubert analysis, but at the same 

time, I think a lot of those are going to impinge on the weight 

that’s given to the witness’s testimony. It may or may not result 

in exclusion by Daubert, but I don’t see any urgency to that 

ruling in the context of a court trial.

The trial court allowed Keller to testify at trial and use his report but ultimately took the 

matter of accepting Keller’s expert report as evidence under advisement. 
No. 2018AP2329

13

responses that you want to make to the brief that was filed 

[by the Bank] today, that would be fine.[10] I wouldn’t 

belabor it, though.

The Parsons argue that the trial court put off a discussion on the issue to the final 

written arguments and then never made a decision. In its findings of fact and 

conclusions of law, the trial court did not specifically reference the deposition 

transcript. 

¶35 On appeal, the Parsons argue that the law supports drawing an 

inference of Moeser’s guilt from his invocation of the Fifth Amendment 

throughout the deposition. They assert: “That would mean that his guilt can then 

be used to prove his racketeering activity or his negligent injury of the Parsons.” 

According to the Parsons, the trial court erred when it did not use Moeser’s 

invocation to find that he committed wrongful acts and when it did not decide 

whether the adverse inference could be used against the Bank. 

¶36 The Bank submits that even if we were to agree that an adverse 

inference could be drawn against it, the Parsons do not direct our attention to any 

specific portions of Moeser’s deposition that would have supported their claims. 

The Bank additionally challenges the Parsons’ position that Moeser’s assertion of 

his Fifth Amendment privilege amounts to substantive evidence that can be used 

against it, in its capacity as Moeser’s employer, as to all of the Parsons’ factual 

assertions and highlights that the Parsons have not provided legal authority that 

 

10

 The Bank asserted that the trial court should not receive Moeser’s deposition transcript 

into evidence and that if it did, the trial court should not draw an inference against it based on 

Moeser’s refusal to answer questions. 
No. 2018AP2329

14

supports “such a wide-sweeping inference.”11 Again, the Parsons do not refute 

this in their reply and, therefore, concede this facet of their argument. See 

Charolais Breeding Ranches, 90 Wis. 2d at 109. 

¶37 We are not convinced that the trial court erred by not ruling that 

Moeser’s deposition testimony raised an adverse inference that could be used 

against the Bank. Instead, the trial court received the transcript as evidence and 

gave it the weight it deemed appropriate.

(6) The trial court was not required to make a determination as to 

damages.

¶38 Lastly, the Parsons argue that in a court trial, damages should be 

assessed even if the plaintiff fails to establish liability.12 They submit that the 

policy considerations that favor having a jury determine damages regardless of 

their answers on liability are the same in the context of a court trial. See generally

WIS JI—CIVIL 1700 (instructing jurors: “You must answer the damage 

question(s) no matter how you answered any of the previous questions in the 

verdict. The amount of damages, if any, found by you should in no way be 

influenced or affected by any of your previous answers to questions in the 

verdict”). The Parsons explain that in the context of a jury trial, if this court 

reverses on a nonliability finding, having a damages determination at the ready 

affords the opportunity for a final disposition of the case. 

 

11

 The Parsons cite only one case—Grognet v. Fox Valley Trucking Service, 45 Wis. 2d 

235, 239-40, 172 N.W.2d 812 (1969)—for the proposition that the law supports drawing an 

inference of Moeser’s guilt or against his interest. 

12

 We have analyzed the issues in a different order than the Parsons presented them. 
No. 2018AP2329

15

¶39 The Parsons’ brief lacks authoritative case law to support their 

position. Moreover, WIS. STAT. § 805.17, which governs trials to the court, 

provides only that the trial court is required to find the ultimate facts and state its 

conclusions of law. Section 805.17 does not require the trial court to decide 

hypothetical damage questions in the absence of liability. 

¶40 For all the foregoing reasons, we conclude that the trial court’s order 

should be affirmed.

By the Court.—Order affirmed.

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

809.23(1)(b)5.