COURT OF APPEALS

DECISION

DATED AND FILED

August 1, 2024

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. 2023AP123 Cir. Ct. No. 2013CV3897

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

ANTONIO SORIA,

 PLAINTIFF-APPELLANT,

 V.

CLASSIC CUSTOM HOMES OF WAUNAKEE INC.,

 DEFENDANT-RESPONDENT.

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

STEPHEN E. EHLKE, Judge. Affirmed and cause remanded with directions. 

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

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2023AP123

2

¶1 PER CURIAM. The Dane County circuit court, following remand

from this court, ordered that Antonio Soria’s attorney pay $8,937.50 “as a 

monetary sanction” to Classic Custom Homes of Waunakee, Inc. (“Custom 

Homes”). On appeal, Soria argues that the circuit court: (1) wrongfully 

determined that Soria forfeited his argument that Custom Homes was not entitled 

to sanctions because it had allegedly filed its motion for sanctions fewer than

twenty-one days after it served the motion on Soria, in violation of WIS. STAT.

§ 802.05 (2021-22);

1

(2) required that Soria’s attorney “personally pay” the 

monetary sanction without making a finding of “exceptional circumstances” under 

§ 802.05(3)(a)1.; (3) imposed a monetary sanction that is not supported by the 

need to deter similar conduct as required under § 802.05(3)(b); and (4) imposed a

monetary sanction that is unreasonable. 

¶2 We reject Soria’s arguments. Moreover, we conclude that these 

arguments in Soria’s appellate briefs signed by his attorney have no reasonable 

factual or legal basis and could not be supported by a good faith argument for an 

extension, modification, or reversal of existing law. Accordingly, we affirm the 

circuit court’s sanctions order, grant Custom Homes’ motion for sanctions for a 

frivolous appeal, and remand to the circuit court to determine the amount of 

attorney’s fees to be paid fully by Soria’s attorney under WIS. STAT. § 809.25(3).

BACKGROUND

¶3 We summarize the pertinent undisputed facts as presented in the two 

prior appeals in this case and the record in this appeal. See Soria v. Classic 

 

1

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

noted.
No. 2023AP123

3

Custom Homes of Waunakee, Inc. (Soria I), No. 2017AP1693, unpublished slip 

op. (WI App July 11, 2019); Soria v. Classic Custom Homes of Waunakee, Inc.

(Soria II), No. 2020AP1931, unpublished slip op. (WI App Dec. 2, 2021).2

¶4 Soria is a professional painter and Custom Homes is a homebuilder. 

They entered into three contracts for Soria to perform painting services at three 

houses. Custom Homes did not pay Soria the full amount which Soria submitted 

that he was owed for his work on the three houses. Soria I, No. 2017AP1693,

¶¶6-8. 

¶5 Soria sued Custom Homes in 2013, alleging that Custom Homes 

breached its contracts with him and committed theft by contractor. The case 

proceeded to trial and the jury found in favor of Soria on all of his claims. The 

jury found that Custom Homes owed Soria $9,585.00 for his work on the three 

houses on the breach of contract claims. The jury also awarded Soria $28,755.00 

as exemplary damages based on the theft by contractor claims. 

¶6 During trial, Custom Homes twice moved to dismiss Soria’s theft by 

contractor claims on the ground of insufficiency of evidence. After trial, Custom 

Homes moved to change the jury’s answers to the special verdict questions 

 

2

 We explain our citation to the two opinions issued in prior appeals in this same case. 

Soria v. Classic Custom Homes of Waunakee, Inc. (Soria I), No. 2017AP1693, unpublished slip 

op. (WI App July 11, 2019); Soria v. Classic Custom Homes of Waunakee, Inc. (Soria II), 

No. 2020AP1931, unpublished slip op. (WI App Dec. 2, 2021). Soria I is authored, and Soria II

is a per curiam opinion. See WIS. STAT. RULE 809.23(3)(a) and (b) (prohibiting the citation of 

unpublished, unauthored opinions “as precedent or authority, except to support a claim of claim 

preclusion, issue preclusion, or the law of the case,” and permitting the citation of authored, 

unpublished opinions issued after July 1, 2009, for their persuasive value). We cite these 

opinions for undisputed procedural and background facts in this case and to provide context for 

our analysis of the issues raised in this appeal. 
No. 2023AP123

4

concerning Soria’s theft by contractor claims on the same ground. Soria I, 

No. 2017AP1693, ¶¶11-12. The circuit court denied those motions. Id.

¶7 Custom Homes appealed and Soria cross-appealed, together raising a 

total of six separate issues. Id., ¶¶2-3, 33, 56, 57, 73, 78, 87. Pertinent here, on 

Custom Homes’ appeal, this court reversed the jury’s verdict on the theft by 

contractor claims based on Soria’s failure to meet his burden of proof on one 

element. Id., ¶¶2, 56. We remanded the case “to the circuit court to dismiss with 

prejudice Soria’s theft by contractor claims and vacate the portions of the 

judgment relating to the theft by contractor claims,” including the jury’s award of 

exemplary damages. Id., ¶56. On Soria’s cross-appeal, this court reversed the 

circuit court’s denial of his request for prejudgment interest, and we remanded the 

case to the circuit court to determine the amount of Soria’s prejudgment interest 

and include that amount in the judgment. Id., ¶78. We otherwise affirmed the 

circuit court and “remanded for further proceedings consistent with this opinion.” 

Id., ¶¶2-3, 88.

¶8 Following that first remand, as pertinent here, Soria filed in the 

circuit court a “Motion[s] for Further Proceedings,” requesting an amended 

judgment stating that Custom Homes’ refusal to pay Soria the entire amount due 

for his work on the houses constituted embezzlement by Custom Homes.3 Soria 

 

3

 We now briefly summarize the different statutory bases for Soria’s pleaded and tried 

theft by contractor claims and his proposed embezzlement claims. Wisconsin’s civil theft by 

contractor statute, WIS. STAT. § 779.02(5), provides in pertinent part, “The use of [moneys paid to 

a prime contractor to pay claims due to a subcontractor] for any other purpose until all claims ...

have been paid in full or proportionally in cases of a deficiency, is theft by the prime contractor

... of moneys so misappropriated and is punishable under [WIS. STAT. §] 943.20.” The element 

of a theft by contractor claim that Soria did not prove at trial is that Custom Homes’ failure to pay 

Soria all amounts due “was done without the consent of the owners of the land.” Soria I, 

No. 2017AP1693, ¶¶39-40.

(continued)
No. 2023AP123

5

also requested that the amended judgment award to Soria exemplary damages in 

the amount of $28,755.00 on his embezzlement claims or, in the alternative, that 

the circuit court order a new trial to determine the amount of exemplary damages. 

Soria contended in the circuit court that this court authorized the circuit court to 

decide his embezzlement-related motions because we remanded the case “for 

further proceedings.” 

¶9 In response to these motions, Custom Homes informed Soria that, 

because the motions that he filed in the circuit court following remand were 

frivolous, it would move for sanctions against Soria and his attorney under WIS.

STAT. § 802.05 if Soria failed to withdraw his motions within twenty-one days. 

Soria did not withdraw his motions, and Custom Homes filed the motion for 

sanctions. The circuit court denied the relief requested in Soria’s motions for 

further proceedings. The court also denied Custom Homes’ motion for sanctions. 

¶10 In the second appeal in this case, Soria appealed the circuit court’s 

denial of the relief requested in his motions for further proceedings, and Custom 

 

Embezzlement is one form of theft enumerated in WIS. STAT. § 943.20, and the elements 

of the crime of embezzlement are set forth in § 943.20(1)(b), which provides that a person 

commits embezzlement if the person “intentionally uses, transfers, conceals, or retains possession 

of” money owned by another without the owner’s consent “with intent to convert” the owner’s 

money to the person’s own use or anyone else’s use except the owner’s. “One element of 

embezzlement is that the defendant knowingly and intentionally used someone else’s money 

without their consent and contrary to the defendant’s authority. To avoid conviction, not only 

must the defendant have permission to use the money, but the defendant must also have 

permission to use the money in the manner that it is used.” State v. Swift, 173 Wis. 2d 870, 880, 

496 N.W.2d 713 (Ct. App. 1993) (citation omitted). 

A person who prevails in a civil action against a defendant on theft by contractor or 

embezzlement claims is entitled to exemplary damages and attorney fees and costs under WIS.

STAT. § 895.446.
No. 2023AP123

6

Homes cross-appealed the court’s denial of its motion for sanctions. Soria II,

No. 2020AP1931, ¶2.

¶11 On Soria’s second appeal, this court affirmed the circuit court’s 

denial of Soria’s motions. Id., ¶3. We concluded that our mandate and remand 

instructions in Soria I did not authorize the circuit court to conduct “further 

proceedings” to consider Soria’s embezzlement assertions. Soria II, 

No. 2020AP1931, ¶35. We also concluded that Soria forfeited the opportunity to 

request an amended judgment based on the embezzlement assertions because he 

did not claim or advance an argument regarding embezzlement in the circuit court

before the first appeal, or in this court in that first appeal. Id., ¶¶2, 36. We further 

concluded that Soria failed to demonstrate that the circuit court had the authority

to amend the judgment following remand based on his embezzlement assertions. 

Id., ¶¶53, 57. We also concluded that a necessary premise for Soria’s 

embezzlement argument failed based on Soria’s misinterpretation of our ruling in 

Soria I. Soria II, No. 2020AP1931, ¶¶58-61.

¶12 On Custom Homes’ cross-appeal, this court reversed the circuit 

court’s denial of Custom Homes’ motion for sanctions. Id., ¶3. We concluded

that, based on our analysis of the issues raised by Soria in his second appeal, “the 

motions [for further proceedings] signed by Soria’s attorney were not warranted 

by existing law or by a nonfrivolous argument for the extension, modification, or 

reversal of existing law, or the establishment of new law.” Id., ¶68. We stated, 

“The lack of any basis for those motions should have been manifest to any 

reasonable attorney, and we conclude that the motions were frivolous as set forth 

in WIS. STAT. § 802.05(2)(b).” Id. We remanded to the circuit court “to apply the 

proper standards under § 802.05(3)” “to determine the appropriate sanction or 

sanctions to be assessed against Soria’s attorney.” Id., ¶¶63, 68.
No. 2023AP123

7

¶13 Following the second remand, the circuit court scheduled briefing on 

“the determination of sanctions.” In his response brief filed in the circuit court, 

Soria argued for the first time that Custom Homes was not entitled to sanctions

because it had allegedly filed its motion for sanctions fewer than twenty-one days 

after it served the motion on Soria, in violation of WIS. STAT. § 802.05. In its 

ruling on the determination of sanctions, the court rejected Soria’s “belated 

argument” that Custom Homes had untimely filed its motion for sanctions because 

Soria had forfeited this argument by failing to raise it when the motion was filed in 

the circuit court following the first remand or on appeal of the court’s decision 

denying the motion for sanctions. The court also rejected Custom Homes’ request 

for various sanctions in addition to a monetary sanction. The court concluded as 

follows:

After considering the totality of [Soria’s counsel’s] conduct 

in this case and exercising my discretion under the statute, I 

conclude that he must pay all of defendant’s attorney fees 

incurred in circuit court between March 27, 2020, the date I 

was assigned this case [following remand] and the motions 

which were at issue in the Court of Appeals [Soria’s 

Motions for Further Proceedings and Custom Homes’ 

Motion for Sanctions] were being briefed, and November 

16, 2020, the date the Notice of Appeal was filed. 

The court ordered that Soria’s counsel “shall personally pay to Defendant Classic 

Custom Homes of Waunakee, Inc., the total amount of $8,937.50 as a monetary 

sanction” pursuant to WIS. STAT. § 802.05(3). 

¶14 In this third appeal in this case, Soria appeals the circuit court’s 

sanctions order. 
No. 2023AP123

8

DISCUSSION

¶15 Soria challenges the circuit court’s order requiring that his attorney 

pay $8,937.50 as a monetary sanction for having filed motions in the circuit court 

following remand from the first appeal that this court in the second appeal 

determined were frivolous. We first summarize the applicable legal principles and 

standard of review, and then address Soria’s four arguments of error in turn.4 

¶16 WISCONSIN STAT. § 802.05(2)(b) provides that an attorney signing a 

motion certifies to the circuit court that the claims and legal contentions stated in 

the motion “are warranted by existing law or by a nonfrivolous argument for the 

extension, modification, or reversal of existing law or the establishment of new 

law.” Section 802.05(3) authorizes a court to impose an appropriate sanction for a 

violation of § 802.05(2). Under § 802.05(3)(b), such a sanction “shall be limited 

to what is sufficient to deter repetition of such conduct or comparable conduct by 

others similarly situated.” Such a sanction may, if “warranted for effective 

deterrence,” constitute an order to pay the reasonable attorney fees and costs 

incurred “as a direct result of the violation.” Sec. 802.05(3)(b). Under 

 

4

 We note that Custom Homes’ respondent’s brief does not comply with the following 

rules and remind it of its obligation to comply with these rules. First, Custom Homes’

respondent’s brief refers to the parties by their status on appeal, and not by their names, contrary 

to WIS. STAT. RULE 809.19(1)(i). Use of these designations can easily create confusion that is an 

unnecessary burden for this high volume court. Second, Custom Homes’ respondent’s brief does 

not comply with RULE 809.19(8)(bm), which addresses the pagination of appellate briefs. See 

RULE 809.19(8)(bm) (providing that, when paginating briefs, parties should use “Arabic numerals 

with sequential numbering starting at ‘1’ on the cover”). This rule has recently been amended, 

see S. CT. ORDER 20-07 (eff. July 1, 2021), and the reason for the amendment is that briefs are 

now electronically filed in PDF format, and are electronically stamped with page numbers when 

they are accepted for e-filing. As our supreme court explained when it amended the rule, the new 

pagination requirements ensure that the numbers on each page of a brief “will match ... the page 

header applied by the eFiling system, avoiding the confusion of having two different page 

numbers” on every page of a brief. S. CT. ORDER 20-07 cmt. at x1.
No. 2023AP123

9

§ 802.05(3)(b)1., “monetary sanctions may not be awarded against a represented 

party for a violation of sub. (2)(b).” 

¶17 We review for an erroneous exercise of discretion the amount of 

attorney fees awarded as a monetary sanction. Bettendorf v. Microsoft Corp., 

2010 WI App 13, ¶15, 323 Wis. 2d 137, 779 N.W.2d 34 (2009). “‘Accordingly, 

we will affirm the [circuit] court’s decision if it examined the relevant facts, 

applied a proper standard of law, and reached a reasonable conclusion.’” Id.

(citation omitted). 

I. Untimely Filing of Motion for Sanctions

¶18 Under WIS. STAT. § 802.05(3)(a)1., a motion for sanctions under

§ 802.05 shall be served on the potentially sanctionable party, “but shall not be

filed with or presented to the court unless, within 21 days after service of the

motion ..., the challenged paper, claim, defense, contention, allegation[,] or denial

is not withdrawn or appropriately corrected.” In other words, the party seeking

sanctions must “first serve the motion on the potentially sanctionable party, who

then has twenty-one days to withdraw or appropriately correct the claimed

violation.” Ten Mile Invs., LLC v. Sherman, 2007 WI App 253, ¶5, 306 Wis. 2d

799, 743 N.W.2d 442. This is referred to as the “safe harbor” provision. Id. 

¶19 When a party fails to specifically raise an issue before the circuit 

court in a manner that allows the court to address the issue and correct any 

potential error, the party forfeits that issue on appeal. See Schill v. Wisconsin 
No. 2023AP123

10

Rapids Sch. Dist., 2010 WI 86, ¶45, n.21, 327 Wis. 2d 572, 786 N.W.2d 177.5 

Whether a party properly preserved an assertion or argument is a question of law 

that we review de novo. State v. Mercado, 2021 WI 2, ¶32, 395 Wis. 2d 296, 953 

N.W.2d 337. 

¶20 Soria argues that the circuit court wrongfully determined that Soria 

forfeited his argument that Custom Homes was not entitled to sanctions because it 

had allegedly filed its motion for sanctions fewer than twenty-one days after it 

served the motion on Soria, in violation of the safe harbor provision in WIS. STAT.

§ 802.05(3)(a)1. (we will refer to Soria’s untimely filing argument as the “safe

harbor objection”).6 As we explain, like the circuit court, we conclude that Soria

has forfeited his safe harbor objection, and Soria fails to provide a persuasive 

reason that we should ignore forfeiture here.

¶21 The record establishes that, following the first remand, counsel for 

Soria did not raise a safe harbor objection to Custom Homes’ motion for sanctions 

in the circuit court in his written response to the motion or orally at the hearing on 

the motion. Nor did counsel raise a safe harbor objection to Custom Homes’ 

 

5

 Our supreme court has long recognized that the previously used phrase, “waiver rule,” 

which Custom Homes still uses in its respondent’s brief, is “imprecise,” and that it is “better to 

label” this as the “forfeiture rule” because “it refers to the forfeiture of a right by silence rather 

than the intentional relinquishment of a known right.” State v. Huebner, 2000 WI 59, ¶11 n.2, 

235 Wis. 2d 486, 611 N.W.2d 727.

6

 Soria asserts that the safe harbor period is enlarged by three additional days under WIS.

STAT. § 801.15(5)(a) (“Whenever a party has the right or is required to do some act or take some 

proceedings within a prescribed period after the service of a notice or other paper upon the party,” 

“[i]f the notice or paper is served by mail, 3 days shall be added to the prescribed period.”). But 

he does this without attempting to support the assertion with citations to the record or legal 

analysis. We do not consider the merits of this unsupported assertion further, see State v. 

McMorris, 2007 WI App 231, ¶30, 306 Wis. 2d 79, 742 N.W.2d 322 (court of appeals “may 

choose not to consider arguments unsupported by references to legal authority, arguments that do 

not reflect any legal reasoning, and arguments that lack proper citations to the record”).
No. 2023AP123

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motion in this court on Custom Homes’ cross-appeal of the circuit court’s denial

of its motion. See Soria II, No. 2020AP1931, ¶67 (identifying “Soria’s only 

arguments in this appeal responding to Custom Homes’ contention that sanctions 

are merited” as those “regarding [Soria’s] requests to amend the judgment based 

on asserted embezzlement”). Only after we remanded the case to the circuit court 

for a second time did Soria for the first time raise a safe harbor objection. As 

stated, the circuit court following the second remand rejected Soria’s safe harbor 

objection on forfeiture grounds: 

This argument was forfeited when it was not raised before 

me when the original motion was heard and decided. And 

if not then, it was certainly forfeited when it was not raised 

on appeal. Custom Homes correctly argues that a party 

cannot resuscitate an argument which should properly have 

previously been raised upon remand. To the extent this 

argument has any merit, and I’m not saying it does, it was 

forfeited.

¶22 Our supreme court has explained:

The purpose of the “forfeiture” rule is to enable the circuit 

court to avoid or correct any error with minimal disruption 

of the judicial process, eliminating the need for appeal. 

The forfeiture rule also gives both parties and the circuit 

court notice of the issue and a fair opportunity to address 

the [issue]; encourages attorneys to diligently prepare for 

and conduct trials; and prevents attorneys from 

“sandbagging” opposing counsel.

State v. Ndina, 2009 WI 21, ¶30, 315 Wis. 2d 653, 761 N.W.2d 612. We 

conclude that the forfeiture rule serves these reasons in this case. Simply stated, 

had Soria raised his safe harbor objection following the first remand in the circuit 

court in response to Customs Homes’ motion for sanctions, both the circuit court 

and this court on any appeal on that issue would have been able to address it, 

thereby potentially obviating the need for the second remand and this third appeal

on that issue.
No. 2023AP123

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¶23 Soria’s arguments against forfeiture lack logical and legal support. 

Soria argues that he did not need to raise the safe harbor objection in response to 

Custom Homes’ motion for sanctions in the circuit court following the first 

remand because the court ultimately denied Custom Homes’ motion. However, 

the ultimate disposition, which he could not have known about before the court 

ruled, did not relieve him of the obligation to raise the objection. Moreover, he 

does not explain why he did not raise that objection as an alternative ground to 

affirm on appeal. He also does not explain why, had he done so, this court would 

not have rejected the objection as forfeited for his failure to raise it in the circuit 

court. Soria’s argument essentially ignores the well-established forfeiture rule 

entirely.

¶24 Soria argues that, when a “mandatory specific statute” like the safe 

harbor provision conflicts with the “general rule” of forfeiture, the specific statute 

controls. Soria cites inapposite case law addressing the scenario when two statutes 

relate to the same subject matter. He does not explain how this case law relates to 

application of the forfeiture rule, and we reject his argument based on his failure to 

connect it to the legal authority he cites. See State v. Pettit, 171 Wis. 2d 627, 646, 

492 N.W.2d 633 (Ct. App. 1992) (“We may decline to review issues inadequately 

briefed.”).

¶25 Soria’s remaining arguments comprise various iterations of the 

proposition that Custom Homes’ failure to comply with the safe harbor provision 

deprived the circuit court of competency to hear the motion, thus relieving Soria of 

the obligation to raise the safe harbor objection. As Soria summarizes his 

arguments on this point, he cannot have forfeited his safe harbor objection “when 

an action or proceeding such as [Custom Homes’] motion for sanctions is 

improperly commenced.” The case law that Soria cites to support this proposition 
No. 2023AP123

13

relate, as his summary implies, to whether a party has a duty to raise defenses 

when an action or proceeding has been improperly commenced. Based on this 

case law, Soria argues that, just as a party does not have a duty to respond when 

there is no pending action because a pleading to commence the action has been 

filed too late, so he had no duty to respond when there was no pending motion 

because it was filed too early. He asserts that the safe harbor provision cannot be 

“waived” because that provision is like a statutory “time limit[] necessary to 

invoke a circuit court’s jurisdiction or competence.” However, that is not the 

situation here, which involves Soria’s objection to a motion that was filed during 

litigation in an action already underway. Soria cites no case law equating an 

improperly filed pleading necessary to commence an action or proceeding with an 

untimely filed motion in litigation that was already properly commenced. 

¶26 Soria’s arguments are untethered to the case law that he cites and 

obscure the crux of his position on appeal, which is that the circuit court should 

have acted to deny Custom Homes’ motion based on its violation of the safe 

harbor provision, not that the court lacked competency to act. Soria fails to 

distinguish Custom Homes’ motion from other motions that circuit courts have 

competency to grant or deny depending on objections based on untimeliness. See, 

e.g., WIS. STAT. § 806.07(2) (requiring that motions for reconsideration be filed 

within one year, or within a reasonable time, of the entry of the challenged order 

or judgment). 

¶27 In sum, Soria does not connect to relevant legal authority his attempt 

to transform a garden variety motion in an ongoing action into a pleading 

necessary to invoke a circuit court’s jurisdiction or competency. His arguments 

against forfeiture lack any basis in the authority that he cites.
No. 2023AP123

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II. Exceptional Circumstances

¶28 Soria argues that the circuit court erred in requiring that Soria’s 

attorney “personally pay” the monetary sanction without making a finding of 

“exceptional circumstances” under WIS. STAT. § 802.05(3)(a)1. That provision 

addresses the filing of a motion for sanctions. The portion of the provision cited 

by Soria states: “If warranted, the court may award to the party prevailing on the 

motion reasonable expenses and attorney fees incurred in presenting or opposing 

the motion. Absent exceptional circumstances, a law firm shall be held jointly 

responsible for violations ... by its ... employees.” Sec. 802.05(3)(a)1. This 

argument fails because it misrepresents this court’s mandate in Soria II, 

misinterprets the circuit court’s remarks following remand, and misapplies the 

statute on which Soria relies.

¶29 As stated, this court in Soria II ordered that Soria’s attorney be 

assessed sanctions for the frivolous motions filed by Soria’s attorney in the circuit 

court following remand from the first appeal. Our mandate directed the circuit 

court to determine “the appropriate sanction or sanctions to be assessed against 

Soria’s attorney.” Soria II, No. 2020AP1931, ¶¶63, 68. Our mandate left no 

room for the circuit court to, as Soria now suggests, impose “no sanction” or to 

require that someone other than Soria’s attorney pay the sanction assessed. 

Indeed, under WIS. STAT. § 802.05(3)(b)1., given this court’s conclusion that the 

motions were frivolous under § 802.05(2)(b), we, and the circuit court, were 

required to assess the sanctions against Soria’s attorney. See § 802.05(3)(b)1. 

(“Monetary sanctions may not be awarded against a represented party for a 

violation of sub. (2)(b).”). 
No. 2023AP123

15

¶30 Soria asserts that this court remanded to the circuit court for Custom 

Homes to offer evidence of exceptional circumstances. However, Soria provides 

no record support for this assertion and it has no connection to our mandate as 

stated above. Soria’s focus, in this and related assertions referring to exceptional 

circumstances, ignores the distinction between the requirement in WIS. STAT.

§ 802.05(3)(b)1. that a monetary sanction be awarded only against the attorney for 

the violation at issue here, and the provision in § 802.05(3)(a)1. that the law firm 

employing the attorney is jointly responsible for that sanction absent exceptional 

circumstances. Our mandate and the circuit court proceedings following remand 

involved only the former, not the latter.

¶31 Consistent with our mandate, the circuit court rejected various nonmonetary sanctions requested by Custom Homes, determined that a monetary 

sanction alone (the one requested) was appropriate, determined the amount of the 

monetary sanction, and required that Soria’s attorney personally pay it. The order 

is silent as to whether the attorney’s employer, the University of Wisconsin Law 

School, is a law firm that may or may not be jointly responsible for the sanction

under WIS. STAT. § 802.05(3)(a)1. As the circuit court explained, “My intention is 

that, yes, this would hurt. [Soria’s counsel] would have to pay it .... [T]hat’s the 

whole point of a sanction. Now[,] having said that, I don’t have the law school in 

front of me as a party. I don’t have any ... control or jurisdiction over the law 

school.” Thus, the court had no reason to address whether “exceptional 

circumstances” existed under § 802.05(3)(a)1.

¶32 Soria asserts that the circuit court said that “it lacked a basis to enter 

a sanction solely against Soria’s [attorney]” but then, inconsistently, “required 

Soria’s [attorney] to personally pay.” However, the portion of the court’s ruling 

that Soria cites, and which we quote in ¶31 above, does not contain Soria’s 
No. 2023AP123

16

“lacked a basis” language. Again, as explained, this court’s mandate was 

specifically that the circuit court assess a monetary sanction against Soria’s 

attorney. The circuit court properly set to the side the undeveloped issue as to 

whether the University of Wisconsin Law School might be “jointly responsible” 

for the sanction assessed against Soria’s attorney; this topic was not part of this 

court’s mandate and was not properly before the circuit court. 

III. Deterrence

¶33 Soria contends that the circuit court imposed a monetary sanction 

that is not supported by the need to deter similar conduct, as required under WIS.

STAT. § 802.05(3)(b) (“A sanction imposed for violation of this rule shall be 

limited to what is sufficient to deter repetition of such conduct or comparable 

conduct by others similarly situated.”). Based on his specific arguments in support 

of this contention, we understand Soria’s position to be that no monetary award in 

any amount is warranted because no deterrence is needed. In this section we 

explain why each of Soria’s specific arguments in support of such a position lack 

merit. In the next section, we address and reject Soria’s separate arguments that 

the amount of the monetary award is unreasonable.

¶34 Soria inaccurately minimizes his attorney’s violation as “the addition 

of an argument to Soria’s brief on remand.” Soria provides no record support for 

this characterization, and the record refutes it. This court determined that it was

Soria’s “Motion[s] for Further Proceedings” as a whole that were “not warranted 

by existing law or by a nonfrivolous argument for the extension, modification, or 

reversal of existing law, or the establishment of new law.” Soria II, 2020AP1931, 

¶68. All of the arguments in “Soria’s brief on remand” in support of Soria’s 

various motions for further proceedings related to his embezzlement assertions and 
No. 2023AP123

17

the remedies that he sought based on those assertions. Soria did not simply add an 

argument to his brief following remand. Instead, he filed an entire brief centered 

on his effort to amend the judgment and to replace the theft by contractor claims 

that he had filed and tried with embezzlement claims, which he asserted for the 

first time following remand after this court on appeal concluded that the theft by 

contractor claims must be dismissed. In that brief that Soria filed in the circuit 

court (and repeated in his arguments in the second appeal), he took multiple 

positions that this court in the second appeal determined were frivolous. Id., ¶68. 

In short, Soria unreasonably interpreted the directions on appeal for “further 

proceedings” following the first remand, made arguments that were forfeited, 

sought relief that the circuit court lacked authority to provide, and advanced 

claims that lacked a necessary premise. Id. In sum, Soria did not merely add an 

argument to his brief following remand.

¶35 Soria suggests that no deterrence is needed because his violations 

caused no delay inasmuch as “further proceedings” were required to take place 

following the first remand regardless of his motions. However, he overlooks that 

his violations significantly disrupted and complicated the circuit court and 

appellate proceedings here. See Trinity Petroleum, Inc. v. Scott Oil Co., 2007 WI 

88, ¶43, 302 Wis. 2d 299, 735 N.W.2d 1 (noting that WIS. STAT. § 802.05 was 

created to deter the disruption as well as the delay resulting from frivolous filings). 

The “further proceedings” ordered by this court in the first appeal clearly 

concerned only the ministerial tasks of reversing the verdicts and vacating the 

portions of the judgment relating to the theft by contractor claims and dismissing 

those claims, and determining prejudgment interest. Soria I, No. 2017AP1693,

¶¶56, 78. Soria’s frivolous motions unnecessarily disrupted and complicated the 

completion of those tasks.
No. 2023AP123

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¶36 Soria argues that there is no need to deter the repetition of similar 

conduct because the “situation” here is unlikely to recur. Specifically, he asserts 

that civil jury trials are rare, that the reversal on appeal of jury verdicts is rare, and 

that a split appellate decision reversing some of the jury’s verdicts but awarding 

prejudgment interest is rare. However, he elides over the conduct to be deterred, 

regardless of the “situation.” To repeat, that conduct was counsel’s unfounded 

warping of this court’s “remand[] for further proceedings consistent with this 

opinion,” id., ¶88, as authorizing him to seek “further proceedings” that were not 

only inconsistent with that opinion but that were also unsupported by any law. It 

is the deterrence of that kind of conduct at which the sanctions award is directed. 

Moreover, Soria in this appeal still seeks to excuse that conduct by continuing to 

misinterpret this court’s mandate as “requir[ing] both parties to articulate what 

[Soria and counsel] believed was appropriate in the required ‘further proceedings’ 

on remand.” This “excuse” in itself contributes to our conclusion that deterrence 

of the conduct at issue is warranted.

¶37 Soria argues that he has already sustained a large monetary loss 

when this court vacated the portion of the judgment awarding him exemplary 

damages, and that his attorney sustained a large monetary loss when this court’s 

dismissal of the theft by contractor claims foreclosed the award of attorney’s fees 

and costs, for a total loss of over $188,000. But again, Soria’s focus is misplaced. 

What was sanctioned was not counsel’s failure to prove at trial an element of the 

theft by contractor claims, but counsel’s pursuit following the first remand of 
No. 2023AP123

19

“further proceedings” without any support in the law and contrary to this court’s 

mandate and the circuit court’s authority.7

¶38 Soria essentially argues that his having lost on the merits of his theft 

by contractor claims and his embezzlement assertions suffices to deter his attorney 

and other attorneys from making the same mistakes. However, it is not those 

losses or mistakes that the monetary sanction is intended to deter; the conduct to 

be deterred is advancing frivolous arguments following remand. In sum, Soria 

fails to show that a monetary sanction is not needed to accomplish that 

deterrence.8

IV. Unreasonable Amount

¶39 Soria argues that the circuit court imposed a monetary sanction that

is unreasonable. His argument lacks merit. 

¶40 The circuit court ruled that Soria’s attorney must pay “all” of the 

attorney fees incurred by Custom Homes in the circuit court “between March 27, 

2020, the date [the circuit court judge] was assigned this case [following remand]

and the motions which were at issue in the Court of Appeals were being briefed, 

and November 16, 2020, the date the Notice of Appeal was filed.” Custom Homes 

 

7

 We disregard Soria’s new argument in his appellant’s brief, different from those he 

raised in the first appeal, explaining why he properly did present evidence on the element of the 

theft by contractor claim at issue. This is yet one more example of a consistent failure to present 

supported, relevant arguments that are properly within the scope of the appellate arguments 

permitted.

8

 Soria offers the puzzling argument that the circuit court’s remark that the sanction 

“would hurt” indicates that the court did not impose the monetary sanction to deter. Soria does 

not explain why the court’s intention to impose a monetary sanction in an amount that would 

“hurt” his attorney is not an intention to “deter” his attorney or other attorneys from similar 

violations. We do not address this undeveloped and inadequately briefed argument further.
No. 2023AP123

20

subsequently submitted a proposed order consistent with that ruling, and Soria 

objected to, among other things, the purported inclusion in the proposed order of 

fees incurred before Soria filed his frivolous motions on June 18, 2020. The 

circuit court signed the proposed order as submitted by Custom Homes. 

¶41 Soria argues that the monetary sanction should be limited to the 

$300 set as the maximum amount of costs that can be awarded “on a motion” 

under WIS. STAT. § 814.07 (“[c]osts may be allowed on a motion, in the discretion 

of the court or judge, not exceeding $300”). Soria does not develop a legal 

argument explaining why the allowance of motion costs in § 814.07 applies to the 

determination of monetary sanctions under § 802.05(3). Rather, he raises the 

factual argument that, by analogy, the limit in § 814.07 should apply to the 

determination of monetary sanctions under § 802.05(3) because the frivolous 

conduct here was the “addition of one argument” to his motions following remand. 

We have already addressed and rejected this inaccurate characterization of the 

frivolous conduct at issue. 

¶42 Soria argues that the monetary sanction is unreasonable because it 

purports to include fees that were incurred before he filed his frivolous motions. 

Under WIS. STAT. § 802.05(3)(b), a court may award as a sanction the “payment to 

the movant of some or all of the reasonable attorney fees and other expenses 

incurred as a direct result of the violation.” Soria argues that some of the fees 

included in the monetary sanction here cannot be “a direct result of the violation” 

because they extend, as ordered by the circuit court, from the time the new judge 

was assigned following remand in March 2020 and Soria did not file the frivolous 

motions until June 2020. However, Soria did not object to the March 2020 

timeframe at the hearing at which the circuit court issued its ruling, in order to 

give the court an opportunity to further explain its choice of that timeframe; Soria 
No. 2023AP123

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objected only after Custom Homes submitted a proposed order consistent with the 

court’s ruling. 

¶43 We could reject Soria’s argument as forfeited because it was not 

timely raised in the circuit court. However, we also reject it because it is not 

supported by the record before the circuit court. In support of Custom Homes’ 

request for monetary sanctions, it presented an affidavit from one of its attorneys 

showing that Custom Homes had incurred the $8,937.50 in attorney fees and costs 

from July 3, 2020 through September 4, 2020. The July 3, 2020 start date 

occurred after June 18, 2020, the date that Soria filed the motions that this court 

later determined were frivolous. 

¶44 In sum, Soria does not show that the circuit court erroneously 

exercised its discretion in using the amount from the affidavit referenced above as 

the amount that was reasonably incurred as a direct result of Soria’s attorney’s

violation and which would effectively deter the violation at issue. See WIS. STAT.

§ 802.05(3)(a)1. and (b).

V. Sanctions for Frivolous Appeal

¶45 Custom Homes has filed a motion in this appeal seeking costs and 

fees for Soria’s frivolous appeal pursuant to WIS. STAT. § 809.25(3). We agree 

with Custom Homes that Soria’s entire appeal is frivolous and, therefore, remand 

to the circuit court to determine the amount of costs and fees to be paid fully by 

Soria’s attorney under § 809.25(3).

¶46 To repeat, we have rejected Soria’s primary argument on appeal, that 

the circuit court wrongfully determined that Soria forfeited his safe harbor 

objection, as lacking any factual, legal, or logical basis. Soria’s counsel should 
No. 2023AP123

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have known that he forfeited that objection after we concluded in Soria II that he 

forfeited his request to amend the judgment to find Custom Homes guilty of 

embezzlement. We reached this conclusion because Soria had not raised an 

embezzlement claim or argument in the circuit court before or in response to 

Custom Homes’ motions to dismiss his theft by contractor claims or in this court 

on the appeal from the circuit court’s denial of those motions. Rather, he first 

raised embezzlement in the circuit court following remand after we vacated the 

judgment on his theft by contractor claims. Likewise here, Soria did not raise his 

safe harbor objection in the circuit court in response to Custom Homes’ sanctions

motion in the circuit court or in this court in the appeal of the circuit court’s denial 

of that motion. Rather, he first raised the safe harbor issue in the circuit court 

following remand after we ordered sanctions. Just as we rejected his arguments 

against forfeiture in Soria II, so have we rejected his arguments against forfeiture 

here.

¶47 We have also explained why there is no reasonable factual, legal, or 

logical basis either for Soria’s primary safe harbor objection argument or for 

Soria’s remaining arguments that the circuit court erroneously exercised its 

discretion in issuing its order imposing a monetary sanction of $8,937.50.

¶48 Accordingly, we conclude that all of Soria’s arguments in his 

appellate briefs signed by his attorney have no “reasonable basis in law or equity 

and could not be supported by a good faith argument for an extension, 

modification or reversal of existing law.” See WIS. STAT. § 809.25(3)(c)2. The 

lack of any basis for those arguments should have been manifest to any reasonable 

attorney, and we conclude that the entire appeal is frivolous as set forth in 

§ 809.25(3)(c)2. For these reasons, we grant Custom Homes’ motion for costs and 
No. 2023AP123

23

fees based on a frivolous appeal and remand to the circuit court to determine the 

amount of attorney fees to be paid fully by Soria’s attorney under § 809.25(3).

¶49 Soria takes the position that we must deny Custom Homes’ motion 

because it asserts that only Soria’s safe harbor objection argument is frivolous and 

does not argue that Soria’s other arguments are frivolous. We reject Soria’s 

position. It is true that the motion is largely directed at Soria’s safe harbor 

objection argument; and we note that that argument is the primary argument in 

Soria’s appellate briefs and is the only issue stated in Soria’s notice of appeal. 

However, Custom Homes’ motion also repeatedly references the circuit court’s 

exercise of discretion in determining the monetary sanction, including 

immediately before concluding that the “instant appeal,” without qualification, is 

frivolous. We interpret Custom Homes’ motion, considered as a whole and in 

proper context, to ask that we determine that Soria’s entire appeal is frivolous in 

challenging both the circuit court’s rejection of Soria’s primary argument based on 

forfeiture as well as the court’s exercise of its discretion in determining the type 

and amount of sanctions. We agree.

CONCLUSION

¶50 For the reasons stated above, we affirm the circuit court’s sanctions 

order, grant Custom Homes’ motion for costs and fees based on a frivolous appeal, 

and remand to the circuit court to determine the amount of attorney fees to be paid 

fully by Soria’s attorney under WIS. STAT. § 809.25(3).
No. 2023AP123

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By the Court.—Order affirmed and cause remanded with directions.

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

RULE 809.23(1)(b)5.