District IV


January 4, 2013 


Hon. Amy Smith

Circuit Court Judge

Br. 4, Rm. 8107

215 South Hamilton

Madison, WI  53703


Carlo Esqueda

Clerk of Circuit Court

215 South Hamilton, Room 1000

Madison, WI  53703


William A. Abbott

Bell, Moore & Richter, S.C.

P.O. Box 1807

Madison, WI  53701-1807

Amy M. Kieffer

Gray & Associates, LLP

16345 W. Glendale Dr.

New Berlin, WI  53151-2841


Roger A. Sage

Roger Sage Law Office

30 W. Mifflin, #1001

Madison, WI  53703-2591


BMO Harris Bank NA

111 W. Monroe St.

Chicago, IL  60603-4096


Marek Dudka

Antoniowka 128

23-145 Wysokie




You are hereby notified that the Court has entered the following opinion and order: 









PHH Mortgage Corporation v. Marek Dudka

(L.C. # 2011CV1422)




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

Marek Dudka, pro se appellant, appeals a circuit court order denying his motion to reopen the default judgment of foreclosure entered against him and in favor of PHH Mortgage Corporation (“PHH”).  Based upon our review of the briefs and record, we conclude at conference that this case is appropriate for summary disposition.  See Wis. Stat. Rule 809.21(1) (2009-10).[1]  We summarily affirm.

PHH initiated this action to foreclose a mortgage executed by Dudka.  The mortgage secured property located at 1037 Williamson Street, Unit 207, in the City of Madison, Dane County, Wisconsin.  The circuit court entered a default judgment of foreclosure after Dudka failed to file a timely answer or other responsive pleading.  Dudka then filed a motion to reopen the judgment, arguing that he was never served.  PHH filed a brief in opposition to the motion, along with an affidavit from PHH’s counsel stating the steps that had been taken to serve Dudka personally, without success, prior to publishing a copy of the summons in a newspaper in the locality of his last known address.  The circuit court denied the motion to reopen, finding that Dudka had been properly served and failed to present a meritorious defense to the foreclosure action.  Dudka now appeals.

A circuit court’s decision to grant or deny relief under Wis. Stat. § 806.07(1) is a discretionary one.  McFarland State Bank v. Sherry, 2012 WI App 4, ¶20, 338 Wis. 2d 462, 809 N.W.2d 58.  We will not reverse a circuit court’s discretionary decision absent an erroneous exercise of discretion.  Sukala v. Heritage Mut. Ins. Co., 2005 WI 83, ¶8, 282 Wis. 2d 46, 698 N.W.2d 610.  On appeal, Dudka fails to acknowledge the discretionary standard of review applicable in this case.  Instead, his appellant’s brief contains several complaints about the circuit court proceedings in this matter, without explaining how the circuit court erroneously exercised its discretion in denying relief from the judgment. 

Dudka fails to develop coherent arguments that apply relevant legal authority to the facts of record, and instead relies largely upon conclusory assertions.  “A party must do more than simply toss a bunch of concepts into the air with the hope that either the trial court or the opposing party will arrange them into viable and fact-supported legal theories.”  State v. Jackson, 229 Wis. 2d 328, 337, 600 N.W.2d 39 (Ct. App. 1999).  Consequently, this court need not consider arguments that are unsupported by adequate factual and legal citations or are otherwise undeveloped.  See Dieck v. Antigo School Dist., 157 Wis. 2d 134, 148 n.9, 458 N.W.2d 565 (Ct. App. 1990) (unsupported factual assertions), aff’d, 165 Wis. 2d 458, 477 N.W.2d 613 (1991); State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (undeveloped legal arguments).  While we make some allowances for the failings of parties who, as here, are not represented by counsel, “[w]e cannot serve as both advocate and judge,” Pettit, 171 Wis. 2d at 647, and will not scour the record to develop viable, fact-supported legal theories on the appellant’s behalf, Jackson, 229 Wis. 2d at 337.  Here, the appellant has failed to develop his arguments legally or to support them factually.  Therefore, we affirm the circuit court on that basis.

IT IS ORDERED that the order is summarily affirmed under Wis. Stat. Rule 809.21(1).


Diane M. Fremgen

Clerk of Court of Appeals

[1]  All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.