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

Appeal No. 2023AP123 Cir. Ct. No. 2013CV3897 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

A NTONIO S ORIA ,
P LAINTIFF - A PPELLANT ,

V . C LASSIC C USTOM H OMES OF W AUNAKEE I NC .,
D EFENDANT - R ESPONDENT .

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., Bla n chard, 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 W IS . S TAT . R ULE 809.23(3).No. 2023AP123

2 ¶ 1 PER CURIAM. The Dane County circuit court, following remand
from this court, ordered that Antoni o Soria ’s attorney pay $8,937.50 “as a monetary sanction” to Classic Custom Homes of Waunakee, Inc. (“ C ustom
Homes ”)

. On appeal, Soria argues that the circuit court : (1) wrongfully
determined that Soria forfeited his argument that Cu stom Homes was not entitled
to sanctions because it had allegedly f ile d its motion for sanctions fewer than twenty

- one days after it served the motion on Soria, in violation of W IS

. S TAT

. § 802.05 (2021

- 22) ; 1 (2) r equir ed that Soria’s attorney “per sonally 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 argument s. 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 determin e the amount of attorney ’s fees to be paid fully by Soria’s attorney under W IS

. S TAT

. § 809.25(3).

BACKGROUND

¶ 3 We summarize t he 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 contract s 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 f

or 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 contract s 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 claim s

. ¶ 6 During trial, Custom Homes twice moved to dismiss Soria’s theft by contractor claims on the ground of insufficiency of evidence . A fter trial, Custom Homes moved to change the jury’s answers to the special verdi ct 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 W IS

. S TAT

. R ULE 809.23(3)(a) and (b) (prohibiting the citation of
un published, 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 persuasi ve 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 o n the theft by
contractor claim s 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 S oria’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 Furt her 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, W IS

. S TAT

. § 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 punis hable under [ W IS

. S TAT

. §] 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 exem plary 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 W IS

. S TAT

. § 802.05 if Soria failed to withdraw his motion s within twenty

- one days.
S oria did not withdraw his motions, and Custom Homes filed the motion for
sanction s. T he circuit court denied the relief requested in Soria’s motions for further proceedings

. The court also denied Custom Home s ’ motion for sanctions.

¶ 10 In the second appeal in this case, Soria appealed the circuit court’s
denial of t he relief requested in his motions for further proceedings , and Custom

Embezzlement is one form of theft enumerated in W IS

. S TAT

. § 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, co nceals, 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 a nd intentionally used someone else’ s money without their consen t 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. 2 d 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 damag es and attorney fees and costs under W IS

. S TAT

. § 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, t his 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. W e 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 th at first appea l

. 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 asse rtion s

. Id. , ¶¶53, 57. We also concluded that a necess ary 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 Custo m Homes’ motion for sanctions. Id. , ¶3

. We concluded
that , based on our analysis o f 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 nonfrivo lous 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 W IS

. S TAT

. § 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, 6 8.No. 2023AP123

7 ¶ 13 Following th e 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 W IS

. S TAT

. § 802.05. In its ruling on the determination of sanctions, the court rejected Soria’s “belated argument” th at 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 f

or 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 W IS

. S TAT

. § 802.05(3).

¶ 14 In th is third appeal in this case, Soria appeals the circu it 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 th at 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 W ISCONSIN S TAT

. § 802.05(2)(b) provid es that an attorney signing a
motion certif

ies 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 th e 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 refer s to the parties by their status on appeal, and not by their names, contrary to W IS

. S TAT

. R ULE 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 R ULE 809.19(8)(bm), which addresses the pagination of appellate briefs. See R ULE 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. C T . O RDER 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 pa ge numbers” on every page of a brief. S. C T

. O RDER 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 W e 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, ¶ 1 5 , 323 Wis. 2d 137, 779 N.W.2d 34 (2009). “ ‘ Accordingly,
we will affirm the [circuit] court’ s de cision 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 W IS

. S TAT

. § 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, w ithin 21 days after service of the
motion ..., the challenged paper, clai m , defense, contention, allegation [,] or denial
is not withdrawn or app r o p riately corrected.” In other words, the party seeking
sanctions must “first serve the m otion on the potentially sanctionable party, who
then has twenty

- one days to withdraw or appropriately correct the cla imed 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. WisconsinNo. 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 Sor ia, in violation of the safe harbor provision in W IS

. S TAT

. § 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 f or 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 t o 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 t he safe harbor period is enlarged by three additional days under W IS

. S TAT

. § 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 notic e 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, s ee 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 t hat do not reflect any legal reasoning, and arguments that lack proper citations to the record”)

.No. 2023AP123

11 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. A s 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 supr eme 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 t he 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

12 ¶ 23 Soria’s arguments against f orfeiture 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’ motio n. 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
enti rely.

¶ 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 tw o 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 ha rbor 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 “whe n an action or proceeding such as [ Custom Homes’ ] motion for sanctions is improperly commenced.” The case law that Soria cites to support this propositionNo. 2023AP123

13 relate, as h is summary implies, to whether a party has a duty to raise defenses when an action or pr oceeding 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 resp ond 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 a n improperly filed pleading necessary to commence an action or proceedi ng with an untimely filed motion in litigation that was already properly commen ced

. ¶ 26 Soria’s argument s 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 circ uit courts have competency to grant or deny depending on objections based on untimeliness

. See,

e.g. , W IS

. S TAT

. § 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. Hi s arguments against forfeiture lack any basis in the authority that he cites.No. 2023AP123

14 II. Exceptional Circumstances

¶ 28 Soria argues that the circuit court erred in requiring that Soria’s attorney “personally pay” the monetary sanction without mak ing a finding of “exceptional circumstances” under W IS

. S TAT

. § 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 misrepr esents 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 asses sed 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, u nder W IS

. S TAT

. § 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 foc us, in this and related assertions referring to exceptional circumstances, ignores the distinction between the requirement in W IS

. S TAT

. § 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 non

monetary 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. T he 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 W IS

. S TAT

. § 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 do n’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 ¶ 3 1 above, does not contain Soria’sNo. 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 Universit y 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 conten ds that the circuit court imposed a monetary sanction
that is not supported by the need to deter similar conduct , as required under W IS

. S TAT

. § 802.05(3)(b) (“A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repe tition 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 ne eded. In this section w e explain why each of Soria’s specific argument s 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 andNo. 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 a sserted for the
first time following remand aft er 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 i n the second appeal ) , he took multiple positions that this court in the second app eal determined were frivolous. Id. , ¶68. In short, Soria unreasonably interpret ed 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 deter r ence i s 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 Pet roleum, Inc. v. Scott Oil Co. , 2007 WI 88, ¶43, 302 Wis. 2d 299, 735 N.W.2d 1 (noting that W IS

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. § 802.05 was created to deter the disruption as well as the delay resul ting from frivolous filings).
T he “further proceedings” ordered by this court in t he 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 determin ing prejudgment interest. Soria I , No. 201 7AP1693, ¶¶5 6, 78. Soria’s frivolous motions unnecessarily disrupted and complicated the completion of those tasks

.No. 2023AP123

18 ¶ 36 Soria argues that there i s no need to deter the repetition of similar conduct because the “situatio n” 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 eli des over the conduct to be deterred, regardless of the “situation

. ” To repeat, that conduct wa s 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
i s the deterrence of that kind of conduct at which the sanctions award i s directed. Moreover, Soria in this appeal still seeks t o 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

o f the conduct at issue i s 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 misplace d

. What was sanctioned was no t counsel ’s failure to prove at trial an element of the theft by contractor claims, but counsel ’s pursuit following the first remand ofNo. 2023AP123

19 “further proceedings” without any support in the law and contrary to this court’s
mandate and the circuit court’s author ity. 7

¶ 38 Soria essentially argues that his having lost on the merits of his theft by contractor claims and his embezzlement assertions suffice s to deter his attorney and other attorneys from making the same mistakes. However, it i s not those
losses or mistakes that the monetary sanction is intended to deter; the conduct to
be deterred i s 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. H is argument lacks merit.

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

attorne y 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 evid ence 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 puzz ling 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 “hu rt” 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 argue s 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 W IS

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. § 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 explain ing 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 motion s 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 W IS

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. § 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 cann ot be “a direct result of the violation” because they extend, as ordered by the circui t 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 r uling , in order to give the court an opportunity to further explain its choice of that timeframe ; SoriaNo. 2023AP123

21 objected only after Custom Homes submitted a proposed order consistent with the court’s ruling.

¶ 43 We could reject Soria’s argument a s 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 o ne 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 cour t later determined were frivolous.

¶ 44 In sum, Soria does not show that the circuit court erroneous ly 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 W IS

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. § 802.05(3)(a)1. and (b).

V. Sanctions for Frivolous Appeal

¶ 45 C ustom Homes has filed a motion in this appeal seeking costs and
fees for Soria’s frivolous appeal pursuant to W IS

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. § 809.25(3)

. We agree with Custom Homes that Soria’s entire appeal is frivolous and, therefore, remand
to the circuit court to determine th e amount of costs and fees to be paid fully by
S oria’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 ba sis . Soria’s counsel shouldNo. 2023AP123

22 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
Custo m H omes’ motion s to dismiss his theft by contractor claims or in this court
on th e appeal from the circuit court’s denial of those motions . Rather, he fir st raised embezzlement in the circuit court following remand after we vacated the judgment on his theft by contractor claim s

. Likewise here, Soria did not raise his safe harbor objection in the circuit court in response to Custom Homes’ sanction s motion i n 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 for feiture 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 i ssuing its order i mposing 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 W IS

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. § 809.25(3)(c)2. The lack of any basis for those arguments should have be en 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 andNo. 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 frivol ous 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 app ellate 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 sanctio ns order , grant C ustom 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 W IS

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. § 809.25(3)

.No. 2023AP123

24 By the Court.

— Order affirmed and cause remanded with directions

. This opinion will not be published. See W IS

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. R ULE 809.23(1)(b)5.