A recent decision by a Wisconsin appeals court has upheld the dismissal of a lawsuit filed by an estate against an attorney, citing unreasonable delay in bringing claims related to a high-value property foreclosure and loan agreement. The ruling addresses issues surrounding legal representation, financial agreements, and the impact of delayed litigation on both parties involved.
The Estate of Harvey Bartsch, Jr., acting as plaintiff-appellant, filed an appeal with the Court of Appeals for Lincoln County on December 20, 2022, naming attorney Randy Frokjer as defendant-respondent. The case was reviewed under Appeal No. 2024AP1425 and Circuit Court No. 2022CV178. The appellate panel affirmed Judge Louis J. Molepske, Jr.’s order granting summary judgment in favor of Frokjer.
According to court documents, in 2018 Harvey Bartsch Jr. retained Randy Frokjer to represent him in a Vilas County tax foreclosure case involving properties valued at over $1 million. On January 10, 2019, the circuit court allowed Bartsch Jr. one day to pay all outstanding taxes and fees totaling $136,469.36 to redeem his property. When efforts by Bartsch III (Bartsch Jr.’s power of attorney) to secure loans from both a friend and UW Credit Union failed within the required timeframe, he informed Frokjer about their inability to obtain funds.
Frokjer then offered to provide the necessary money under terms similar to those proposed by Bartsch III’s friend: repayment plus an additional sum based on the loaned amount. On January 11, 2019, an agreement was signed where Frokjer would pay off the tax liens in exchange for repayment and an extra $250,000 from future property sales proceeds. A waiver of conflict-of-interest document was also executed at this time.
Shortly after these events, Vilas County refunded over $22,000 due to an overcharge; this refund was sent directly to Frokjer who claimed he informed Bartsch III about it later that year and deducted it from what was owed under their agreement.
In June 2019, Frokjer initiated a breach-of-contract lawsuit against both Bartsch Jr. and Bartsch III for failing to list the properties for sale as agreed but did not face any counterclaims from them during those proceedings. By September 2019, following a guardianship petition by Vilas County due to concerns about Bartsch Jr.’s competency, a guardian was appointed for him; eventually Frokjer’s lawsuit was dismissed with prejudice after property sales satisfied his claim.
After Harvey Bartsch Jr.’s death on December 30, 2021—with Bartsch III becoming personal representative—the estate filed suit against Frokjer alleging breach of fiduciary duty; seeking rescission based on fraud or undue influence; unjust enrichment; and breach of contract with damages sought totaling $250,000.
Frokjer responded with a motion for summary judgment arguing that all claims were barred by laches—a legal doctrine preventing recovery when unreasonable delay prejudices the defense—which the circuit court granted on several grounds including economic harm (irrecoverable income tax paid on funds received) and evidentiary harm (loss of key witness testimony due to death).
The appellate decision emphasized three elements required for laches: unreasonable delay in bringing claims; lack of knowledge by defendant that such claims would be raised; and resulting prejudice—either economic or evidentiary—to defendant due to that delay. The opinion stated: “Laches is an affirmative, equitable defense designed to bar relief when a claimant’s failure to promptly bring a claim causes prejudice.”
The court found that after signing their agreement in January 2019—and despite multiple opportunities during related litigation—the estate waited nearly four years before filing its current suit against Frokjer without reasonable justification for such delay.
Economic prejudice included not only irrecoverable income tax payments made by Frokjer but also unpaid time spent clearing property titles as part investor rather than as legal counsel—work performed without compensation while unaware future claims might arise from those actions.
Evidentiary prejudice resulted because key witness Harvey Bartsch Jr., whose perspective could have been central regarding alleged breaches or undue influence in forming agreements with his attorney-turned-investor—was no longer available when new allegations surfaced years later.
Ultimately affirming dismissal under laches doctrine as dispositive law for this appeal—and declining further analysis on other potential issues—the appeals panel concluded: “Having established that Frokjer met his burden on the three elements of laches as a matter of law we affirm.”
Attorneys’ names are not specified within this decision notice beyond references made during proceedings themselves; presiding judge at circuit level was Louis J. Molepske Jr.; case identification is Appeal No. 2024AP1425.
Source: 2024AP1425_The_Estate_of_Harvey_Bartsch_Jr_v_Frokjer_Opinion_Wisconsin_Court_of_Appeals.pdf
