Cottonwood Fin. Wis., LLC v. Kobilka
Cottonwood Fin. Wis., LLC v. Kobilka
Opinion of the Court
¶ 1 Lynne Kobilka appeals circuit court orders denying her motions for an injunction against Cottonwood Financial Wisconsin, LLC, d/b/a The Cash Store ("Cottonwood"), and for reconsideration. We affirm, as Kobilka's challenges were not properly before the circuit court. Pursuant to WIS. STAT. RULE 809.25(3), we also grant Cottonwood's motion for sanctions against Kobilka's attorney for a frivolous appeal, and we remand for the circuit court to determine the amount of costs and reasonable attorney fees to be awarded to Cottonwood.
BACKGROUND
¶ 2 Cottonwood obtained a default judgment in the amount of $1,036.50 against Kobilka in May 2013. In November 2016, a circuit court commissioner entered an order, on Cottonwood's motion, that Kobilka appear for a supplemental examination on December 21, 2016, to answer questions under oath concerning her property. The commissioner's order provided, in part: "In the meantime and until further order to the contrary, you are hereby enjoined and restrained from making any transfer or other disposition of your property not exempt by law from execution, and from any interference therewith." As ordered, Kobilka appeared with counsel and participated in the supplemental examination. Kobilka did not object before or during the examination to the language of the commissioner's order.
¶ 3 Two months after the supplemental examination, Kobilka filed a motion pursuant to WIS. STAT. § 426.109 to temporarily enjoin Cottonwood's enforcement of the commissioner's order, as well as to vacate that order. As relevant to this appeal, Kobilka argued that the commissioner's order violated the Wisconsin Consumer Act (WCA) because the commissioner lacked authority to restrain her from transferring or disposing of any nonexempt property.
¶ 4 The circuit court denied Kobilka's motion. The court first concluded it did not have authority to grant Kobilka's requested relief because WIS. STAT. § 426.109(1) requires consumers to bring a civil action to restrain violations of the WCA. The court found that Kobilka had "not commenced a civil action or even asserted a counterclaim in an existing civil action." Rather, the court observed, Kobilka had "made a motion in the underlying small claims debt collection suit that ha[d] been adjudicated and closed for nearly four years." The court further concluded that even if it possessed authority to consider the injunction motion, the issue was moot because the commissioner's orders were expressly limited to the time between issuance of the order and the examination date. The court also denied Kobilka's reconsideration motion. Kobilka now appeals.
DISCUSSION
¶ 5 On appeal, Kobilka again concentrates her arguments on the commissioner's lack of authority to restrain her from transferring or disposing of any nonexempt property and the resulting need to vacate the commissioner's order. Cottonwood does not address these arguments for the purposes of this appeal. Instead, Cottonwood contends the circuit court correctly interpreted WIS. STAT. § 426.109(1) as requiring that Kobilka bring a separate "civil action" to challenge the injunction entered by the commissioner.
¶ 6 Kobilka cites State ex rel. M.L.B. v. D.G.H. ,
¶ 7 M.L.B. is of no assistance to Kobilka in this case. In M.L.B. , the moving party sought relief from a judgment pursuant to WIS. STAT. § 806.07(1). See M.L.B ,
¶ 8 Even if we were to consider the merits of Kobilka's argument, it is clear the circuit court correctly concluded her motion was moot. Kobilka ignores the plain wording of the commissioner's order, which the circuit court correctly concluded only restrained her from disposing of her property "in the meantime" between the date the order was issued and the date of the supplemental examination. By the time Kobilka filed her motion, the examination was completed without objection from Kobilka. Consequently, vacating the commissioner's order would not have any practical effect in this case, as the order enjoining Kobilka's disposition or transfer of her property is no longer in effect. See McFarland State Bank v. Sherry ,
¶ 9 Finally, Kobilka asserts she is appealing the denial of her motion for reconsideration. However, she provides no supporting argument. This court will not abandon its neutrality to develop arguments on a party's behalf. See Industrial Risk Insurers v. American Eng'g Testing, Inc. ,
MOTION FOR SANCTIONS
¶ 10 Cottonwood filed a motion asking that Kobilka and her attorney, Eric Crandall, be required to pay its costs and attorney fees as a sanction for filing and maintaining a frivolous appeal. See WIS. STAT. RULE 809.25(3). Cottonwood argues that Kobilka and Crandall knew or should have known this appeal had no reasonable legal basis, and that it was brought solely to harass Cottonwood and cause it to incur unnecessary defense costs and attorney fees. In support of its motion, Cottonwood recites its lengthy history of litigation with Kobilka, as represented by Crandall, involving her claims that Cottonwood violated the WCA. Kobilka has not filed a response to the motion.
¶ 11 Whether an appeal is frivolous is a question of law. Howell v. Denomie ,
¶ 12 We conclude this appeal is frivolous. It is evident that Kobilka's attorney knew, or should have known, that this appeal was without any reasonable basis in law or in equity, and he did not argue for an extension, modification or reversal of existing law. In fact, Crandall, in his appellate briefing on behalf of Kobilka, has conceded that the circuit court properly dismissed the motion for temporary injunction because he failed to comply with the process required under WIS. STAT. § 426.109. Crandall has made no developed argument that the appeal was not moot, and although he claimed to be appealing the denial of the reconsideration motion, he has made no argument whatsoever in support of that appeal. The entirety of the argument on appeal, as presented by Crandall on Kobilka's behalf, challenges the merits of the court commissioner's authority to restrain Kobilka's transfer and disposition of her property. However, Crandall knew or should have known any challenges to the commissioner's order could not succeed without addressing the court's conclusion that Kobilka had to file a separate civil action to raise those issues. To underscore this point, Kobilka-again represented by Crandall-has filed a separate civil action, St. Croix County case No. 2017SC1313, which remains pending.
¶ 13 Cottonwood also asks us to conclude Kobilka's appeal was frivolous because it was brought in bad faith, solely for the purpose of harassing Cottonwood and causing it injury. However, we have already concluded the appeal was frivolous because it is without legal basis. We need not consider all issues argued by a party when one is dispositive. See Kelly v. Berg ,
¶ 14 Because Kobilka's appeal was brought without legal basis, we conclude this appeal is frivolous. Accordingly, we assess costs and fees fully against Kobilka's attorney, Eric Crandall, pursuant to WIS. STAT. RULE 809.25(3)(b).
By the Court. -Orders affirmed and cause remanded with directions.
This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.
This appeal is decided by one judge pursuant to
Wisconsin Stat. § 426.109(1) provides in full:
The administrator or any customer may bring a civil action to restrain by temporary or permanent injunction a person from violating chs. 421 to 427 and 429 or the rules promulgated pursuant thereto, or to so restrain a merchant or a person acting on behalf of a merchant from engaging in false, misleading, deceptive, or unconscionable conduct in consumer credit transactions. It shall not be a defense to an action brought under this section that there exists an adequate remedy at law.
We take judicial notice of the records in St. Croix County Circuit Court case No. 2017SC1313, as they appear on Wisconsin's Consolidated Court Automation Programs. See Kirk v. Credit Acceptance Corp. ,
Cottonwood also requests costs and attorney fees from Kobilka. We decline this request. The claims in this appeal are different than those previously filed by Kobilka against Cottonwood, and we are not convinced that a reasonable person in Kobilka's position knew or should have known her claims in this appeal have no basis in law or equity.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.