COURT OF APPEALS

DECISION

DATED AND FILED

September 22, 2022

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. 2021AP1866 Cir. Ct. No. 2021CV173

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

JEDEDIAH HEERINGA,

 PLAINTIFF-RESPONDENT,

 V.

CORY J. “CJ” MACHT AND NICHOLAS MACHT,

 DEFENDANTS-APPELLANTS,

CORY MACHT,

 DEFENDANT-THIRD-PARTY PLAINTIFF-APPELLANT,

 V.

ROBERT J. MACHT, SR. AND SHERRYL HEERINGA,

 THIRD-PARTY DEFENDANTS-RESPONDENTS.

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

JOSEPH G. SCIASCIA, Judge. Affirmed. 
No. 2021AP1866

2

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

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

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

¶1 PER CURIAM. Cory Macht, Sr. (Cory) along with his sons Cory 

Macht, Jr. (C.J.) and Nicholas Macht (“the Macht defendants”) appeal an order 

denying their motion for relief from a stipulation that settled all issues in litigation 

involving them and other members of their extended family. The parties signed

and submitted to the circuit court a stipulation that expressly settled all claims by 

all parties. Days after the stipulation was executed, but just before it was 

submitted to the court for approval, Cory personally (i.e., not through his attorney)

wrote a letter to the circuit court requesting a “continuance in my case” to obtain 

new counsel and allow his case to be heard. He alleged that he signed it only 

under “duress” from his attorney and that he needed time to retain new counsel. 

The court interpreted Cory’s letter as a motion for relief from a stipulation under 

WIS. STAT. § 806.07(1) (2019-20) and held a hearing on the motion.

1 The court 

denied relief, determining in pertinent part that any “coercion” that Cory

experienced in agreeing to the settlement did not meet any of the grounds for relief 

contemplated by § 806.07(1). 

¶2 On appeal, the Macht defendants argue that the circuit court 

erroneously exercised its discretion by failing to consider WIS. STAT.

§ 806.07(1)(h), which allows for relief from a stipulation for “[a]ny other reasons

justifying relief,” and also by failing to apply pertinent legal standards based on

 

1

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.
No. 2021AP1866

3

para. (1)(h). The respondents, Jedediah Heeringa, Sherryl Heeringa, and Robert 

Macht, Sr. (“the Heeringas”), counter by arguing that the court did consider 

§ 806.07(1)(h) and that the court reflected this by expressing views regarding the 

merits of the Macht defendants’ claims, a consideration that could in this context

be relevant only to the potential application of para. (1)(h). Taking into account

the record as a whole, we conclude that the court properly exercised its discretion

in weighing factors relevant to the para. (1)(h) factors. Accordingly, we affirm the 

circuit court’s denial of the Macht defendants’ motion for relief.

BACKGROUND

¶3 On January 5, 2021, Jedediah Heeringa filed a small claims eviction 

action against the Macht defendants. Cory Macht is Heeringa’s step-uncle; C.J. 

and Nicholas are Macht’s sons. On April 13, 2021, Cory filed an amended 

counterclaim and third-party complaint against Robert Macht, Sr., claiming breach 

of contract, promissory estoppel, and unjust enrichment. Cory alleged that Robert 

breached an oral agreement to sell land to Cory by selling it instead to Jedediah.

Cory alleged that he had made regular insurance and mortgage payments on the 

property before Robert sold the property to Jedediah. In reference to the same

alleged oral agreement between Robert and Cory, Cory also made a claim of 

tortious interference with contract against Jedediah and Sherryl Heeringa (Cory’s 

sister and Jedediah’s stepmother).2 Cory also asserted that one or more parties 

placed liens against his property without his knowledge and fraudulently borrowed 

against his property. 

 

2

 Macht also made a theft claim against his daughter and sister for allegedly 

appropriating funds from his checking account for their personal use without his authorization. 

Macht later dismissed these claims, which are not at issue in this appeal. 
No. 2021AP1866

4

¶4 Beginning shortly after the commencement of this action and 

continuing through Cory’s letter to the court, Kelly Schwab was the Macht 

defendants’ attorney of record. But, at least from the time of his letter to the court 

onward, Cory took the position that Joshua Hermes, another attorney at Schwab’s 

firm, was Cory’s primary attorney and his point of contact in these matters. In 

August 2021, Hermes informed Cory that he was taking a new job and, as a result, 

Hermes could not continue to represent Cory. Soon after that, Hermes filed a 

motion on behalf of the firm to withdraw as counsel. Hermes noted as grounds 

that his pending departure from the case would result in staffing that was 

inadequate to allow the firm to continue representing the Macht defendants. 

However, on August 31, Schwab wrote to the court to explain that her firm would 

stay on the case; it was no longer pursuing the motion to withdraw. 

¶5 On September 7, 2021, Cory personally (that is, independently of 

counsel) wrote a letter to the court requesting a “continuance in my case” in order 

to “find an attorney to properly represent [him].”3 While the letter does not 

request that Cory be relieved from a stipulation, it makes several negative 

references to the settlement and to what Cory represented had been his thought 

processes in settling. 

 

3

 Though Cory was the only person who signed this letter, C.J. and Nicholas join him in 

this appeal. 

Separately, we now note details regarding timing of the letter. On appeal, the Macht 

defendants assert that Cory sent the letter to the circuit court on Sunday, September 5, 2021, but 

that the circuit court did not file the letter until Tuesday, September 7 due to the Labor Day 

holiday. Cory dated the letter September 7. Because the discrepancy between the two dates is 

small and both dates are close in time to the September 3 signing of the stipulation, these 

differences do not significantly affect our analysis. As we explain below, we weigh the relative 

promptness of Cory’s letter to the court slightly in his favor as somewhat mitigating the prejudice 

that relief from the stipulation would have on the other parties. 
No. 2021AP1866

5

¶6 Cory made the following allegations in this letter. Schwab called 

Cory on August 27 and told him that she would continue to represent him. But 

she was significantly less familiar with the case than Hermes was. At a meeting 

with Cory on August 30, Schwab took positions significantly different from those 

Hermes had taken, informing him: that she did not want to be on the case; that 

criminal charges could be filed against Cory; that he could not win his case; and 

that he would be responsible for paying the fees of opposing counsels. Schwab’s

statements, according to Cory, “persuaded” him to “settle [the] case.” Given 

“threats and severe consequences” coming from “the lawyers,” Cory “suddenly 

found [himself] in a moment of duress[,] not knowing which way to turn.”

¶7 Counsel for Jedediah and Sherryl wrote to the circuit court opposing

Cory’s request for a continuance, attaching a copy of a Settlement Agreement And 

Mutual Release (“settlement agreement”) that the parties had signed on 

September 2 to “fully and finally resolve” their disputes. The settlement 

agreement provided that, upon execution and court approval of the settlement 

agreement, the parties’ counsel would execute and file a “Stipulation and Order 

for Dismissal” (“stipulation”). Counsel for Sherryl and Jedediah filed the 

executed stipulation on September 8. The circuit court declined to approve the 

stipulation pending the resolution of the issues Cory raised in his letter. The 

circuit court interpreted Cory’s letter to be a motion for relief from a stipulation

under WIS. STAT. § 806.07(1).

4

 On October 1, the court held a hearing on the 

 

4

 Entitled “Relief from judgment or order,” WIS. STAT. § 806.07(1) provides:

(1) On motion and upon such terms as are just, the 

court ... may relieve a party or legal representative from a 

judgment, order or stipulation for the following reasons:

(continued)
No. 2021AP1866

6

motion. At the hearing, the court listed some of the grounds for relief that are 

contained in § 806.07(1) and invited Cory to “make his case.” 

¶8 The Macht defendants testified in support of their request for relief 

from the stipulation, each testifying that Schwab “coerced” them into signing the 

settlement agreement. Their testimony was consistent with the allegations in the 

letter, including Cory questioning Schwab’s motivations for urging a settlement, 

testifying that Schwab did not “want to deal with [the case] while she [was] ill and 

[had] surgery coming up.” However, Cory conceded that Schwab discussed a few 

terms of the settlement with him. 

¶9 C.J. and Nicholas acknowledged having signed the settlement 

agreement. Cory denied doing so. Cory testified that he signed only a right of 

 

(a) Mistake, inadvertence, surprise, or excusable 

neglect;

(b) Newly-discovered evidence which entitles a party to 

a new trial under s. 805.15(3);

(c) Fraud, misrepresentation, or other misconduct of an 

adverse party;

(d) The judgment is void;

(e) The judgment has been satisfied, released or 

discharged;

(f) A prior judgment upon which the judgment is based 

has been reversed or otherwise vacated;

(g) It is no longer equitable that the judgment should 

have prospective application; or

(h) Any other reasons justifying relief from the 

operation of the judgment.

(Emphasis added.)
No. 2021AP1866

7

first refusal that gives him an option to match any purchase offer if Jedediah 

decides to sell the property within the first 15 years following the execution of the 

right of first refusal. 

¶10 The circuit court made the following pertinent determinations. First, 

the court found that Cory did sign the stipulation, finding that the notary who 

witnessed the signing was credible and that Cory took actions consistent with 

having signed it.

¶11 Second, the circuit court concluded that Cory had no grounds for 

relief from the stipulation under WIS. STAT. § 806.07(1). In support of this 

conclusion, the court determined that the pressures that Cory testified he felt when 

he agreed to sign the settlement were not of the kind contemplated under § 806.07, 

in essence finding that Cory was not subjected to improper pressures. Further, the 

court determined that Cory’s breach of contract claim was likely problematic on 

the merits. The court said that, based on the “law of Real Estate, if [an agreement] 

isn’t in writing you are behind the eight ball.” Along the same lines, the court said 

that, in the absence of a written agreement in a real estate transaction, someone 

pursuing such claims has a “huge disadvantage” and that if Cory continued to

pursue his claims he would be doing so with “one hand tied behind [his] back.” 

¶12 Following the hearing, the circuit court entered an order that 

(1) denied the Macht defendants’ motion for relief from the stipulation, 

(2) approved the stipulation settling all remaining claims, and (3) dismissed the 

action with prejudice. 

¶13 The Macht defendants appeal. Jedediah Heeringa and Sherryl 

Heeringa filed a response, which Robert Macht joins.
No. 2021AP1866

8

DISCUSSION

¶14 The Macht defendants argue that the circuit court erred in denying

Cory’s motion for relief brought under WIS. STAT. § 806.07(1), the text of which 

is quoted in a footnote above. Paragraphs 806.07(1)(a)-(g) list seven specific 

grounds for relief, but the Macht defendants do not argue that any of these grounds 

apply here. Rather, the Macht defendants argue that the court erroneously 

exercised its discretion by failing to consider § 806.07(1)(h), the “catch-all” 

provision, which provides relief for “any other reasons justifying relief from the 

operation of the [stipulation].” See Sukala v. Heritage Mut. Ins. Co., 2005 WI 

83, ¶9, 282 Wis. 2d 46, 698 N.W.2d 610 (characterizing para. 806.07(1)(h) as a 

“catch-all” provision). With respect to para. (1)(h), the Macht defendants argue 

that the circuit court failed to apply the proper legal standard by not considering 

factors relevant to the issue of whether there are the “extraordinary circumstances” 

that must be shown to merit the granting of a motion for relief under 

§ 806.07(1)(h). See State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536, 552-53, 363 

N.W.2d 419 (1985). 

¶15 We begin by explaining the standard of review, followed by the 

substantive standards for relief under WIS. STAT. § 806.07(1)(h). We then apply 

these standards and explain why we reject the argument that the circuit court did 

not properly apply these standards. 

I. Standard of Review

¶16 We review a circuit court’s decision to grant or deny relief under 

WIS. STAT. § 806.07(1) for an erroneous exercise of discretion. Franke v. 

Franke, 2004 WI 8, ¶54, 268 Wis. 2d 360, 674 N.W.2d 832. “The term 

‘discretion’ contemplates a process of reasoning which depends on facts that are in 
No. 2021AP1866

9

the record or are reasonably derived by inference from the record, and yields a 

conclusion based on logic and founded on proper legal standards.” Shuput v. 

Lauer, 109 Wis. 2d 164, 177-78, 325 N.W.2d 321 (1982). There is no erroneous 

discretion when the court exercised its discretion and there is a reasonable basis 

for the court’s determination. State ex rel. Cynthia M.S. v. Michael F.C., 181 

Wis. 2d 618, 624, 511 N.W.2d 868 (1994). A decision of a circuit court that 

“requires the exercise of discretion” and that “on its face demonstrates no 

consideration of any of the factors on which the decision should be properly 

based” is an erroneous exercise of discretion as a matter of law. Conrad v. 

Conrad, 92 Wis. 2d 407, 414-15, 284 N.W.2d 674 (1979).

¶17 Turning to relief from a stipulation, circuit courts “have ‘broad 

discretionary authority’ to grant relief under [WIS. STAT.] § 806.07(1)(h).”

Allstate Ins. Co. v. Konicki, 186 Wis. 2d 140, 148-49, 519 N.W.2d 723 (1994)

(quoting Mullen v. Coolong, 153 Wis. 2d 401, 407, 451 N.W.2d 412 (1990)). 

Given the importance of the exercise of discretion to a circuit court’s functioning, 

“‘we generally look for reasons to sustain discretionary decisions.’” Id. at 149 

(quoted source omitted). We review a discretionary decision in the following 

manner: 

[W]e look first to the court’s on-the-record explanation of 

the reasons underlying its decision. And if that explanation 

indicates that the court ... “considered the facts of the case 

and reasoned its way to a conclusion that is (a) one a 

reasonable judge could reach and (b) consistent with the 

applicable law, we will affirm the decision even if it is not 

one with which we ourselves would agree.”

Id. at 149-50 (quoted source omitted).

¶18 On a related point, we do not disturb the circuit court’s findings of 

fact unless they are clearly erroneous, meaning that the findings of fact are 
No. 2021AP1866

10

“against the great weight and clear preponderance of the evidence.” RoysterClark, Inc. v. Olsen’s Mill, Inc., 2006 WI 46, ¶12, 290 Wis. 2d 264, 714 N.W.2d 

530. 

II. Relief Under WIS. STAT. § 806.07(1)(h)

¶19 Before a party can show that there are “[a]ny other reasons justifying 

relief” under WIS. STAT. § 806.07(1)(h), there must be a showing of 

“extraordinary circumstances.” M.L.B., 122 Wis. 2d at 549-50, 552-53. Our 

supreme court has established the following factors to be relevant, using the term 

“the claimant” for the person seeking relief:

whether the judgment was the result of the conscientious, 

deliberate, and well-informed choice of the claimant; 

whether the claimant received the effective assistance of 

counsel; whether relief is sought from a judgment in which 

there has been no judicial consideration of the merits and 

the interest of deciding the particular case on the merits 

outweighs the finality of judgments; whether there is a 

meritorious defense to the claim; and whether there are 

intervening circumstances making it inequitable to grant 

relief.

Id. at 552-53.

¶20 These factors are not exhaustive; circuit courts should consider “any 

other factors bearing upon the equities of the case.” Miller v. Hanover Ins. Co.,

2010 WI 75, ¶58, 326 Wis. 2d 640, 785 N.W.2d 493. Nonetheless, a circuit court 

must, at a minimum, consider the five M.L.B. factors in “determining whether 

extraordinary circumstances are present under WIS. STAT. § 806.07(1)(h) such that 

relief from a judgment ... is appropriate.” Miller, 326 Wis. 2d 640, ¶41. 

However, if a circuit court fails to consider one or more of the M.L.B. factors, 

consistent with the more general standards noted above, we will “uphold [the]

discretionary decision of the [circuit] court if, from the record, it can be concluded 
No. 2021AP1866

11

ab initio that there are facts of record which would support the trial judge’s 

decision had discretion been exercised on the basis of those facts.” Conrad, 92 

Wis. 2d at 415; see also Miller, 326 Wis. 2d 640, ¶47 (independently reviewing

the record when the circuit court failed to set forth adequate reasons for its 

decision at a § 806.07(1) motion hearing).

¶21 Circuit courts are to construe WIS. STAT. § 806.07 to achieve a 

balance between the competing values of finality and fairness in the resolution of a 

dispute. M.L.B., 122 Wis. 2d at 542. Stated otherwise, § 806.07(1)(h) should be 

used only when “the circumstances are such that the sanctity of the final judgment 

is outweighed by ‘the incessant command of the court’s conscience that justice be 

done in light of all the facts.’” Id. at 550 (quoting Bankers Mtg. Co. v. United 

States, 423 F.2d 73, 77 (5th Cir. 1970) (emphasis omitted)). 

¶22 We note the following as procedural context for consideration of the 

circuit court’s decision to hold a hearing based on the letter that Cory sent the 

circuit court. “To determine whether a party is entitled to review under WIS.

STAT. § 806.07(1)(h), the circuit court should examine the allegations 

accompanying the motion with the assumption that all assertions contained therein 

are true.” Sukala, 282 Wis. 2d 46, ¶10. If such facts are “extraordinary or unique 

such that relief may be warranted under paragraph (1)(h),” the circuit court is to 

hold an evidentiary hearing to determine the truth or falsity of the allegations. Id.

After doing so, and “upon consideration of any other factors bearing upon the 
No. 2021AP1866

12

equities of the case,” the circuit court exercises its discretion to decide whether to 

grant relief.5 Id.

III. Analysis

¶23 At the outset, we note that the Macht defendants could be 

understood to argue that the circuit court was required to explicitly discuss all of 

the M.L.B. factors and that its failure to do so was an erroneous exercise of 

discretion. We question whether such an approach is consistent with the standards 

summarized above, particularly the statement in Conrad that the court’s analysis 

must “demonstrate[] ... consideration” of the pertinent factors. See Conrad, 92 

Wis. 2d at 414-15 (emphasis added). But in any case, even if we assume that

cases such as Miller require a circuit court to explicitly delineate each of the 

M.L.B. factors, our search of the record for facts that sustain the court’s exercise 

of discretion is sufficient to affirm here.

6

 

 

5

 The Macht defendants argue that “assuming ... that the [circuit] court considered 

Macht’s motion under [WIS. STAT.] § 806.07(1)(h), it logically follows that the court found the 

‘extraordinary or unique facts’ given that there was a hearing” and that the Heeringas and the 

circuit court failed to “identify any circumstances or factors[] supported by admissible evidence 

... which would disprove the court’s initial finding of ‘extraordinary or unique facts.’” We 

disagree. Whether or not the court initially had para. (1)(h) in mind, it appears that it held an 

evidentiary hearing based on the view that there was at least some possibility (however likely or 

remote) that relief would be warranted if the allegations in Cory’s letter were proven true. The 

court’s decision to hold a hearing was not a determination that Cory was entitled to relief unless 

proven otherwise; it was merely an opportunity for the court to evaluate the truth of Cory’s claims 

and other relevant factors in considering whether Cory is entitled to relief.

6

 The Heeringas argue that the Macht defendants fail to show that they are entitled to 

relief under WIS. STAT. § 806.07(1)(h) because they did not raise the issue in the circuit court 

with “sufficient prominence such that the circuit court understands that it is being called upon to 

make a ruling.” See Bishop v. City of Burlington, 2001 WI App 154, ¶8, 246 Wis. 2d 879, 631 

N.W.2d 656. We acknowledge that this may present a close issue. But we assume, without 

deciding, that Cory raised this issue with sufficient prominence. That position is informed in part 

by the way in which the circuit court responded to the letter.
No. 2021AP1866

13

¶24 As a threshold set of issues, the Macht defendants assert that the 

Heeringas on appeal (1) fail to argue that the circuit court appropriately exercised 

its discretion by properly considering the M.LB. factors and (2) concede through 

silence that there were extraordinary circumstances justifying relief from the 

stipulation. The Heeringas’ brief on appeal is not robust. But we question 

whether it is true that the Heeringas completely fail on appeal to address these 

points in some way. Further, given that “we may affirm the circuit court if it 

reached the correct result but for the wrong reason,” State v. Chitwood, 2016 WI 

App 36, ¶34, 369 Wis. 2d 132, 879 N.W.2d 786, the Heeringas as the respondents

can properly seek to justify affirmance on any ground. In addition, the burden to 

show that these extraordinary circumstances exist lies with the Macht defendants, 

who seek the application of WIS. STAT. § 806.07(1)(h). Miller, 326 Wis. 2d 640, 

¶34. For all these reasons, the Macht defendants cannot prevail based on implicit 

concessions by the Heeringas on appeal. 

¶25 Rather, following our supreme court’s approach in Miller, we 

address each of the M.L.B. factors in evaluating the Macht defendants’ claim for 

relief. We conclude that the circuit court here considered relevant facts and 

reasoned its way to a conclusion that a reasonable judge could reach and that is 

consistent with applicable law. To the extent that the court’s reasoning did not 

clearly demonstrate consideration of these factors, our review of the record reflects 

a factual basis for concluding that, under these factors, the Macht defendants are 

not warranted relief from the stipulation.

¶26 Previewing our reasoning in reaching this conclusion, we address 

and reject numerous arguments made by the Macht defendants based on the

purportedly improper pressures that they allege. Many of these arguments have no 

legal support. According to the Macht defendants, this consisted of (1) repeated 
No. 2021AP1866

14

phone calls by Schwab to the Macht defendants urging them to settle in the 

relatively short period between their receipt of the settlement agreement and their 

signing it and (2) suggestions by Schwab that she would drop the Macht 

defendants as clients if they failed to settle. All of this, the Macht defendants 

alleged in the circuit court, was based on their attorney’s personal commitments 

and interests and not based on an informed, professional assessment of the merits.

Further, at least in their argument to the circuit court, the Macht defendants 

appeared to assert that Schwab improperly “threatened” or “coerced” them by 

telling them that continuing with litigation would result in criminal charges being 

filed against Cory and that he would be responsible for paying the fees of 

opposing counsel. 

¶27 Moreover, the Macht defendants fail to persuade us that all of the 

alleged forms of purported improper pressures, even if proven, would be improper. 

For example, and to state the obvious, we agree with a point that is apparent in the

circuit court’s reasoning: it does not amount to improper pressure for an attorney 

to honestly advise a client that he or she should settle based on a lack of merit to 

the client’s claims and potential negative consequences going forward. 

A. Conscientious, Deliberate And Well-informed Choice To Enter 

Stipulation

¶28 To repeat, the first factor is whether the stipulation here was the 

result of a “conscientious, deliberate, and well-informed choice” by the Macht

defendants. The Macht defendants argue that this did not occur because

(1) Schwab allegedly would have stopped representing Cory if he did not sign the 

settlement agreement, (2) only a relatively short period of time passed between his 

receiving the settlement agreement and his signing it, (3) the circuit court 

allegedly never considered whether Cory received value from the settlement 
No. 2021AP1866

15

agreement, and (4) there is allegedly no explanation for Macht’s sudden 

“acquiescence” to Schwab’s encouragement that he settle other than the “threats”

made by his lawyer. As we further explain below, we conclude that the first factor 

weighs against relief under WIS. STAT. § 806.07(1)(h) because the purportedly

improper pressures that prompted the Macht defendants to settle, especially when 

considered in light of implicit credibility determinations made by the circuit court, 

do not negate a reasonable interpretation that the Macht defendants 

conscientiously and deliberately entered into the stipulation having knowledge of 

its provisions.

¶29 The circuit court did not explicitly address this factor. But we 

conclude that the court nonetheless demonstrated that it considered the factor by 

referencing facts that are relevant to it. The court noted that Cory’s letter to the 

court stated that “[he] [had] been persuaded by [his] own attorney to settle a case.” 

The court reasonably interpreted this statement as Cory “conced[ing] that he was 

persuaded to settle the case.” (Emphasis added.) The court’s use of the phrase 

“was persuaded” suggests a finding that Cory, while not originally favoring 

settlement, eventually decided to settle after discussing the case with his attorney. 

This “was persuaded” concept is inconsistent with the Macht defendants’ claims 

of improper pressures. 

¶30 The circuit court also directly addressed what we have referred to as 

purportedly improper pressures to settle. Specifically, the circuit court determined

that “the kind of pressures that motivated Mr. Macht to settle the case are not the 

kind of pressures that are contemplated under [WIS. STAT. §] 806.07.” On this 

point, the court began by acknowledging that Cory faced some “fairly unpleasant 

alternatives to the settlement,” such as substantial costs in attorney’s fees and, by 

Cory’s own account under Schwab’s assessment, a limited chance of success on 
No. 2021AP1866

16

the merits. Beyond this, the court noted that proving Cory’s claims would be an 

uphill battle because the purchase agreement was not in writing. 

¶31 The circuit court noted that individuals typically settle lawsuits not 

because they think that they deserve only what they get out of the settlements, but 

because a settlement is the “lesser of two evils.” The court said that there might 

have been a literal degree of “coercion to having to make a choice between” two 

undesirable options—that is, some might say that it is “coercive” for a party to 

have to accept a less than ideal settlement even under ordinary, proper

considerations creating pressures in that direction. But the court further observed 

that this case did not involve coercion in the “legal sense.” The court concluded 

that Cory was merely pressured to “face the facts of the case.” The court’s express 

reasoning is factually supported and reasonable.

¶32 Explaining further, the circuit court’s reasoning implied a finding 

that, to the extent the Macht defendants allegations regarding purportedly 

improper pressures did in fact allege that his attorney applied improper pressures, 

they were not credible, perhaps because they misunderstood their attorney’s 

advice on these points. We accept the circuit court’s conclusions here to the 

extent that they are rooted in a witness’s credibility. See State v. Quarzenski, 

2007 WI App 212, ¶19, 305 Wis. 2d 525, 739 N.W.2d 844. When a circuit court 

does not make express credibility determinations, we will assume it made implicit 

findings on a witness’s credibility. Id. An implied credibility finding may suffice, 

provided facts of record support it. Office of Lawyer Regulations v. Parks, 2018 

WI 110, ¶10, 384 Wis. 2d 635, 920 N.W.2d 505; see also Douglas L. v. Arika B., 

2015 WI App 80, ¶18, 365 Wis. 2d 257, 872 N.W.2d 357 (“A circuit court may 

reject even uncontroverted testimony of a witness or may choose to believe some 

assertions and disbelieve others.”). 
No. 2021AP1866

17

¶33 What appears to remain of the Macht defendants’ argument are two

additional purportedly improper pressures. First, the Macht defendants assert that 

Schwab made multiple phone calls urging them to settle, presumably referring to 

C.J.’s hearing testimony that Schwab was “calling [them] all night and telling 

[them] to sign [the stipulation].” Second, the Macht defendants assert that Schwab 

told them that she would withdraw from the case if they did not settle, which 

would have left them without representation days before a scheduled deposition. 

Without more, we fail to see how these two assertions, even if proven, could 

support granting the Macht defendants relief, and we decline to give weight to 

these assertions in our analysis.7

¶34 The circuit court’s reasoning regarding the lack of improper 

pressures also undermines the Macht defendants’ assertion that the court failed to 

consider whether Cory received value from the settlement agreement. The court 

implicitly determined that Cory, in choosing the “lesser of two evils,” did receive 

value, perhaps considerable value, from the settlement agreement by avoiding the 

greater “evil[].” 

¶35 Moreover, additional information from the record further supports 

the conclusion that Cory made a “conscientious, deliberate, and well-informed 

choice” in entering into the settlement agreement. Especially relevant is evidence 

that Cory was aware of the terms of the settlement agreement and that he had

opportunities to provide input regarding its contents. 

 

7

 As a side note, we observe that, when counsel for Jedediah and Sherryl attempted to 

clarify whether Schwab “called them all night,” whatever that might exactly mean, C.J.

responded with a more clear version of events that would seem to describe routine attorney 

practices: “[W]ell, we were talking to her for a good amount of time one day before we met with 

her assistant the next day.” The circuit court was free to credit this version of events.
No. 2021AP1866

18

B. Effective Assistance Of Counsel

¶36 To repeat, the second factor is “[w]hether the claimant received the 

effective assistance of counsel.” Counsel provides effective assistance of counsel 

in this context when counsel has analyzed the governing law and the facts 

surrounding the case to reasonably estimate the claimant’s chance of success. See 

Allstate Ins. Co. v. Brunswick Corp., 2007 WI App 221, ¶¶10-11, 305 Wis. 2d 

400, 740 N.W.2d 888. On this issue, the Macht defendants contend that the circuit 

court failed to inquire into a number of pertinent issues, including for example

whether there was “a total about-face regarding the firm’s assessment of the case.” 

But in doing so, the Macht defendants merely imply an argument. They merely 

pose questions that they contend the court should have asked, rather than 

developing a supported argument that there was indeed an “about-face” by counsel 

that could amount to ineffective assistance. This in itself is a sufficient basis to 

reject whatever arguments they intend to make on this factor. See Miller, 326 

Wis. 2d 640, ¶34 (“The party seeking relief bears the burden to prove that 

extraordinary circumstances exist.”). Further, as we now explain, even addressing 

the Macht defendants’ argument as best we understand it, we would reject it and 

conclude this factor weighs in favor of affirming the circuit court. 

¶37 Here again, the circuit court appears to have shown consideration of 

this factor by referencing facts relevant to it. Regarding the merits of Cory’s 

claim, the court characterized Cory’s understanding of Schwab’s position to be

that Cory “didn’t have a very good chance of winning.” The court went on to 

agree with this overall assessment. The court observed that, under real estate law, 

an individual who pursues a claim related to a real estate transaction without a 

written agreement faces a “huge disadvantage.” Thus, although the court also 

stated that it “ha[d] no idea” “whether [Schwab] [was] right or wrong or whether 
No. 2021AP1866

19

she did a good job,” the court essentially found that it lacked a basis to conclude 

that Schwab’s positions were not based on reasonable, professional assessment of 

the merits of the claims.

8

¶38 Much of the Macht defendants’ argument on this factor relates to 

allegations noted above that Schwab put improper pressure on them to settle. 

Accordingly, much of our earlier discussion of the circuit court’s implied 

credibility assessments regarding alleged improper pressures by Schwab undercuts 

the Macht defendants’ position on this factor as well. 

C. Judicial Consideration On The Merits And The Interest Of Deciding 

The Case On The Merits Outweighs The Finality Of The Stipulation

¶39 Under this factor courts weigh two competing considerations: the 

interest in deciding a case on the merits and the interest in respecting the finality

of stipulations. We describe these competing interests in more detail before 

applying them to the case here, explaining why this factor weighs against granting

relief.

 

8

 We now address an issue involving the potential for Schwab to testify as part of the 

evidentiary hearing and why we conclude that the circuit court’s handling of a subpoena issue did 

not prejudice Cory’s ability to present evidence of ineffective assistance of counsel. At the start 

of the hearing, the parties discussed whether attorney-client privilege would shield Schwab from 

testifying pursuant to a subpoena issued by counsel for Jedediah and Sherryl. According to 

counsel for Robert Macht this testimony would include the “facts and circumstances surrounding 

the execution of the [s]ettlement.” The circuit court said it would address the subpoena issue only 

if it was not a “no-brainer” whether the Macht defendants were entitled to relief, i.e., if attorney 

Schwab’s testimony, if proper, could influence the outcome of the Macht defendants’ motion. 

The court did not address the issue of potential testimony from Schwab further. The Macht 

defendants apparently intend to argue that, by not addressing the subpoena issue again, the court 

failed to adequately inquire into whether Cory received the effective assistance of counsel. We 

reject any such argument. First, the court made clear that it would address the issue only if 

needed, the court evidently decided it was not needed, and for the reasons provided in the text we 

conclude that the court had a reasonable basis for that approach. Second, to repeat, Cory bears 

the burden to prove that Schwab provided him with ineffective assistance. Third, Cory did not 

seek Schwab’s testimony.
No. 2021AP1866

20

¶40 Starting with the interest in adjudicating a case on the merits when 

there has been no previous judicial consideration of the merits, there is a 

preference “‘to afford litigants a day in court and a trial on the issues.’” Miller, 

326 Wis. 2d 640, ¶54 (quoted source omitted) (concluding that this factor weighed 

in favor of relief from default judgment, in part given large amount of money at 

stake). However, there is no interest in deciding a case on the merits when there is 

no chance of success on the merits. See Brunswick, 305 Wis. 2d 400, ¶12 (noting 

that at the time the parties entered into the stipulation, supreme court precedent 

would have required a result that was in line with the stipulation).

¶41 Turning to the finality of judgments component of this factor, as 

applied to stipulations, we pay particular attention to the intent of parties to use

stipulations to settle legal disputes with finality. In Schauer v. De Neveu 

Homeowners Ass’n, Inc., for example, we observed that the parties’ decision to 

settle reflected a “willingness to compromise a dispute” that the court will not 

disturb merely because, for example, there has been a change in the legal 

background against which the stipulation was drafted. Schauer, 187 Wis. 2d 32, 

37-38, 522 N.W.2d 246 (Ct. App. 1994); see also Schauer v. De Neveu 

Homeowners Ass’n, Inc., 194 Wis. 2d 62, 533 N.W.2d 470 (1995) (affirming and 

quoting court of appeals decision). Allowing relief in such an instance would “do 

violence to the concept of finality in litigation.” Schauer, 187 Wis. 2d at 37-38.

Schauer is distinguishable from the facts here to the extent that it involved a 

motion for relief under WIS. STAT. § 806.07(1)(f), which provides relief when “[a]

prior judgment upon which the judgment is based has been reversed or otherwise 

vacated.” However, Schauer nonetheless stands for the broader principle that

stipulations should generally be respected as expressions of the parties’ intent to 

resolve their disputes with finality. Relevant here, we observed that “relief from a 
No. 2021AP1866

21

settlement is not warranted merely because a settlement appears in hindsight to 

have been a bad bargain.” Schauer, 187 Wis. 2d at 37. 

¶42 Applying these principles here, we first consider the interest in 

adjudicating the merits of the Macht defendants’ case. The Macht defendants 

argue that the circuit court “shut down” the inquiry into the merits of the case, by 

which they apparently intend to argue that the court’s analysis was truncated or 

incomplete in some manner. Of course, there was no adjudication of any of the 

parties’ claims on the merits, as would have occurred for example if there had 

been a trial to verdicts. But the court’s pertinent statements were sufficient to 

reject the merits of the motion as they were presented. To repeat, the court 

expressed skepticism regarding the merits of Cory’s breach of contract claim, 

reasoning that the lack of a written agreement hurt Cory’s chances for success on 

the merits. The court’s assessment of a diminished chance for success on the 

merits, which the Macht defendants do not dispute, significantly lowers the 

interest in allowing this case to be addressed on the merits.

¶43 On the finality point, the Macht defendants argue that the circuit 

court never considered whether the interest in finality of the stipulation 

outweighed the interest in having the court address the merits. They further 

emphasize that Cory requested relief before any order enforcing the stipulation 

went into effect and that the court did not identify any prejudice that would occur 

if the case had been reopened only a few days after the stipulation was signed by 

the parties.

¶44 It is true that the circuit court did not explicitly reference the finality 

interest. However, before approving the settlement, the court addressed the 

relevant considerations that we have already noted (i.e., limited chance of success 
No. 2021AP1866

22

on the merits, Cory not subject to improper pressures). For all these reasons, we 

can infer that the court determined that Cory failed to present adequate grounds to 

disturb the finality of the settlement and, as a result, that it was reasonable for 

Cory’s case to settle. The Macht defendants fail to identify an erroneous or 

unreasonable feature of the court’s approach.

¶45 Our review of the record further bolsters the circuit court’s analysis 

that finality favors holding the Macht defendants to the stipulation based on the 

settlement. While the precise timeline and various specifics are unclear, there is 

no doubt that the parties expended effort in negotiating the settlement. In addition 

to the Macht defendants, four others signed the settlement agreement. The 

relatively prompt nature of Cory’s letter to the court may have lessened the 

potential prejudice to the other parties. Nevertheless, it remains that reopening 

would have potentially prejudiced the Heeringas with respect to the effort spent 

preparing the settlement and the parties’ intent to be bound by it. Pairing this idea 

of prejudice to the other parties with the court’s implied finding that Cory failed to 

establish a basis for disturbing finality, this factor weighs against relief.

9

D. Meritorious Claim

¶46 The meritorious defense factor calls for an inquiry into “whether[, if]

given another chance, the party seeking to vacate the judgment could reasonably 

expect a different result.” Brunswick, 305 Wis. 2d 400, ¶14. As applied here, the 

 

9

 We reject as undeveloped the Macht defendants’ assertion that one consideration 

favoring reopening was the fact that there were parallel criminal investigations into other parties 

(as opposed to references to criminal charges potentially facing the Macht defendants referenced 

above), and their suggestion that the circuit court improperly “shut down” inquiry into this issue. 

It is sufficient to note that these arguments lack relevant legal support. 
No. 2021AP1866

23

question of whether the Macht defendants could reasonably expect a “different 

result” relates to whether they would be able to successfully pursue their 

counterclaims and avoid eviction. See id. The Macht defendants’ primary legal 

theory is that, when Heeringa received title to the property that Cory’s father 

previously owned, Heeringa obtained the power to evict the Macht defendants, but

only by tortuously interfering with a purported oral agreement Cory made with his 

father in purchasing the same parcel.

¶47 As we have discussed in relation to numerous factors above, the 

circuit court appropriately considered whether the Macht defendants had a 

meritorious defense. We interpret the court’s statement that someone pursing a 

claim related to an oral real estate purchase agreement is “behind the eight ball” as 

an implicit reference to WIS. STAT. § 706.02, commonly referred to as the “statute 

of frauds.” See, e.g., Dow Family, LLC v. PHH Mortg. Corp., 2014 WI 56, ¶37, 

354 Wis. 2d 796, 848 N.W.2d 728. Section 706.02 lists a series of requirements 

for a land transaction under WIS. STAT. § 706.001 to be valid. This includes a land 

transaction involving a signed written instrument that identifies the parties, the 

land, and the interest conveyed. The circuit court here recognized that there are 

“exceptions to the [statute of frauds].” Indeed, the court’s comment that the 

absence of a written agreement in a real estate transaction presents a “huge 

disadvantage” to someone litigating a claim pursuant to that alleged agreement

suggests consideration of the exceptions to § 706.02. 

¶48 On appeal, the Macht defendants argue that the circuit court failed to 

sufficiently evaluate whether exceptions to the statute of frauds are present in this 

case. We reject this argument for two reasons. First, the circuit court’s reasoning 

is consistent with case law generally establishing that the absence of a written land 

conveyance can create an uphill battle for anyone seeking relief, despite the 
No. 2021AP1866

24

potential availability of equitable relief. See Weber v. Weber, 176 Wis. 2d 1085, 

1094, 501 N.W.2d 413 (1993) (The rule of the statute of frauds “‘requires 

reasonable caution and prudence in the transaction of business, and is deeply 

imbedded in our jurisprudence.... Better that [people] should be held to the 

consequences of their own culpable carelessness, than that courts of equity should 

undertake to relieve therefrom.’” (quoted source omitted)). Second, the Macht 

defendants do not persuade us that the court was obligated, on its own initiative, to 

explicitly delve more deeply into the exception topic. It was their burden to show 

that the factors apply in favor of relief. Further, the Macht defendants fail to 

develop a supported argument that they would be successful in pursuing what they 

refer to as “other claims asserted against” the Heeringas. We conclude that the 

court reasonably applied the facts of Macht’s case to the law in determining that 

Cory had a limited chance of success on the merits.

¶49 The Macht defendants make two additional arguments with respect 

to the merits factor, but they do not affect our analysis. First, the Macht 

defendants contend that the circuit court improperly prevented Cory from 

presenting to the court the merits of his claim. During the hearing, the court told

Cory that “the merits of the case are just a minor part of this” and instead directed 

him to focus on the specific grounds for relief under WIS. STAT. § 806.07(1). At 

the same time, the circuit court gave Cory time to discuss the merits, for example

allowing him to address that he had recordings of Jedediah discussing the sale of 

the property. It was within the court’s discretion to place limits on Cory’s 

presentation of the evidence. A party, after settling and subsequently seeking 

relief from the settlement, is not entitled to a full-blown trial on the merits to 

gauge the likelihood of success when trying to reopen a case.
No. 2021AP1866

25

¶50 Second, the Macht defendants argue that, to the extent that the 

circuit court considered the merits, it based its analysis on improper evidence.

Specifically, the Macht defendants argue that the court improperly based its 

assessment of Cory’s case on statements made by opposing counsel. This is not 

supported by the record. Instead, it reflects that the court expressed skepticism 

regarding the merits of Cory’s case based on the court’s reasonable reliance on the 

evidence and the arguments of the parties. Of course, the fact that the court’s

independent assessment of the merits resembled positions taken by counsel for 

Robert Macht does not support the argument that the court relied improperly on 

advocacy by one side. 

¶51 In sum, the circuit court gave appropriate consideration to the merits 

of Cory’s claim under the circumstances. Accordingly, this factor weighs against 

granting relief.

E. Intervening Circumstances Making It Inequitable To Grant Relief

¶52 We assume without deciding that the circuit court did not address 

this factor and accordingly we review the record independently. This factor 

invites an inquiry into whether it would unfairly prejudice the nonmovant to grant 

relief to the movant, given changed circumstances. See Miller, 326 Wis. 2d 640, 

¶¶18, 20, 57 (movant seeking relief from a default judgment could rely on unfair 

prejudice argument when nonmovant failed to show any intervening 

circumstances that made it inequitable to grant relief and no indication that the 

nonmovant was prejudiced by the delayed response); see also Brunswick, 305 

Wis. 2d 400, ¶15.

¶53 The Macht defendants argue that, given that Cory relatively 

promptly requested relief after signing the settlement agreement, there were no 
No. 2021AP1866

26

intervening circumstances that would make it inequitable to grant relief.10 Setting 

aside our application of other factors, and on our review of the record, we do not 

identify an intervening circumstance that would make it inequitable to grant the 

Macht defendants relief. This factor thus weighs in favor of the Macht defendants. 

However, we conclude that it does not merit disturbing the circuit court’s 

considerations discussed above that, in sum, weigh against granting relief. 

F. Additional Factors Bearing Upon The Equities Of The Case

¶54 In addition to the five M.L.B. factors, a court is to consider 

additional factors “bearing upon the equities of the case.” Miller, 326 Wis. 2d 

640, ¶58. The Macht defendants direct us to the circuit court’s expression of 

concern that the parties should have “done this differently right from the start” and 

of the court’s “appreciat[ion] [of] the difficulty that [Macht] [is] in.” The 

argument is that these statements reflected a determination that the settlement did 

created an unjust result. However, we interpret the court to have made these

statements to address how the parties handled all related events from the start of 

their dispute, or even earlier, and not to address the specific processes by which 

the settlement agreement was created, discussed, or executed. In other words, the 

circuit court merely acknowledged, in a respectful and reasonable manner, Cory’s 

dissatisfaction about the case overall, and how in the end Cory’s least bad path 

was to settle. Accordingly, these statements do not bear on Cory’s motion for 

relief. Nor do we discern other factors potentially “bearing upon the equities of 

the case.”

 

10

 We assume without deciding that the Macht defendants preserved this issue for appeal

by raising it with sufficient prominence in the circuit court. 
No. 2021AP1866

27

G. Factors Summarized 

¶55 We conclude that four of the M.L.B. factors support the circuit 

court’s decision to deny Cory’s motion for relief under WIS. STAT. § 806.07(1)(h). 

The Macht defendants failed to show any of the following: (1) that Cory did not 

deliberately enter into the settlement agreement under his own volition; (2) that 

Schwab did not provide effective legal assistance; (3) that the finality of 

judgments does not favor binding the parties to the stipulation; or (4) that Cory did 

not face significant legal difficulties in pursuing his claim. The lack of an 

intervening circumstance that would make it inequitable to grant relief weighs in 

favor of the Macht defendants. But this is not dispositive here given that the other 

four factors weigh against the Macht defendants. Because the record provides a 

basis to affirm the circuit court’s discretionary decision, see Conrad, 92 Wis. 2d at 

418, we affirm.

CONCLUSION

¶56 For all of these reasons, we affirm the circuit court’s denial of Cory 

Macht’s motion for relief from the stipulation pursuant to WIS. STAT. § 806.07.

By the Court.—Order affirmed.

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

RULE 809.23(1)(b)5.