Kuczmarski v. Kuczmarski

1

Jeffrey Kuczmarski and Elise Skubal, Plaintiffs-Respondents, v. Erin Kuczmarski and Holly L. Harper Special Needs Trust,Defendants-Appellants.

No. 2022AP440

Court of Appeals of Wisconsin, District III

October 31, 2023

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.

APPEAL from an order of the circuit court for Oneida County No 2020CV36: MICHAEL H. BLOOM, Judge. Affirmed and cause remanded with directions.

Before Stark, P.J., Hruz and Gill, 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).

PER CURIAM

¶1 Erin Kuczmarski and the Holly L. Harper Special Needs Trust (hereinafter, "the Holly Trust") appeal a circuit court order requiring the sale of real property located in the Town of Crescent in Oneida County. Erin and the Holly Trust argue that the court erred by finding that partition of the property was impossible, by staying Erin and the Holly Trust's motion for leave to file an amended counterclaim, and by finding that the property could be sold despite a portion of Jeffrey Kuczmarski's garage being located on the property. We reject these arguments and affirm.

¶2 Jeffrey Kuczmarski and Elise Skubal have also moved for sanctions against Erin and the Holly Trust, arguing that this appeal is frivolous.^[1] We conclude that Erin and the Holly Trust's appeal is frivolous, and we therefore grant Jeffrey and Elise's motion. We thus remand this matter to the circuit court to determine and award costs, fees, and attorney fees associated with this appeal.

BACKGROUND

¶3 Three siblings-Jeffrey, Elise, and Erin-and the Holly Trust own real property (hereinafter, "the Kuczmarski property") located on Emma Lake in the Town of Crescent.^[2] The siblings inherited the Kuczmarski property after their father's death in 2006, and they own the property as tenants in common. The Kuczmarski property is 14.5 acres in size and has 353 feet of lake frontage. The property consists of a north parcel and a south parcel. Jeffrey owns a 50% interest in the north parcel,^[3] and Erin and the Holly Trust each own a 25% interest in the north parcel. Jeffrey, Elise, Erin, and the Holly Trust each own a 25% interest in the south parcel. The north parcel includes a portion of a garage that Jeffrey built straddling the Kuczmarski property and his neighboring property.

¶4 For several years, the siblings have been unable to agree on whether to use or dispose of the Kuczmarski property. For this reason, Jeffrey and Elise brought an action against Erin and the Holly Trust seeking a partition of the Kuczmarski property or, in the alternative, a sale of the property. Erin and the Holly Trust filed a counterclaim against Jeffrey and Elise alleging that Jeffrey illegally created encroachments on the Kuczmarski property and that he knew about the encroachments when they were created. Erin and the Holly Trust later filed a motion seeking leave to file an amended counterclaim alleging additional claims against Jeffrey regarding the illegally created encroachments. The claims related to Jeffrey's garage and his failure to disclose the garage's existence to his siblings.

¶5 The circuit court held a bench trial at which both parties presented witnesses. On behalf of Jeffrey and Elise, the court heard testimony from James Rein, Sr., Jeffrey Olson Jeffrey, and Elise. On behalf of Erin and the Holly Trust the court heard testimony from Joel Knutson, Scott Ridderbusch, and Timothy Vreeland.

¶6 Rein, a land surveyor, testified that he was asked to divide the Kuczmarski property into four parcels and determine the maximum number of lake lots that could be created based on the applicable Oneida County zoning ordinance (hereinafter "the Oneida ordinance") and the applicable Town of Crescent subdivision ordinance (hereinafter, "the Crescent ordinance"). The Oneida ordinance requires each lakefront lot to have a minimum area of 20,000 square feet and at least 100 feet of lake frontage. The Crescent ordinance, meanwhile, requires each lakefront lot to have a minimum area of 90,000 square feet and at least 225 feet of lake frontage. The Crescent ordinance also requires any off-water lot to be at least five acres in size.

¶7 Rein further testified that to comply with the Oneida ordinance, the maximum number of lake lots that could be created was three lots. Under the Crescent ordinance, Rein testified that the maximum number of lake lots that could be created was one lot. Rein added that three off-water lots could not be created because those lots would not satisfy the five-acre minimum requirement. Thus, Rein concluded that under the Crescent ordinance, the Kuczmarski property could not be partitioned among the four owners.

¶8 Vreeland, also a land surveyor, testified that the Kuczmarski property could be potentially divided into four lots under the Oneida ordinance. On cross-examination, Vreeland admitted that he was not aware of the Crescent ordinance and only became aware of that ordinance when this action was filed. Vreeland also admitted that under the Crescent ordinance, three of the four lots necessary for a partition could not be created. Similarly, Ridderbusch, a land use specialist for the Oneida County Zoning Department, testified that the Kuczmarski property could be potentially divided into three lake lots and one off-water lot under the Oneida ordinance. On cross-examination, Ridderbusch testified that he was aware of the Crescent ordinance and that the town could enforce a stricter partition of the Kuczmarski property under that ordinance.

¶9 Olson, an appraiser, testified that if one strictly looked at the "quality and quantity" of the Kuczmarski property, "it would be nearly impossible to divide that equally." Olson also testified that the value of a lakefront property is significantly higher than the value of an off-water property. Rein and Vreeland similarly testified that a lakefront property was of greater quality and of much higher value than an off-water property. Olson concluded that if the Kuczmarski property were partitioned, the owners who received a lake lot would have a lot with greater quantity and quality than the owners who received an off-water lot. Olson also concluded that, given these realities, the property could not be partitioned among the four owners.

¶10 Knutson, the town chair for the Town of Crescent, testified that, in the past, the town had been inconsistent in applying its own ordinances to partitions. Knutson also testified that the town had a history of approving lot sizes that were inconsistent with the town's ordinances. Knutson further testified that, at the time of the trial, the Crescent ordinance requiring 225 feet of lake frontage remained the town's current ordinance. Finally, Knutson testified that he could not speculate what the outcome would be if the town considered either a variance or a rewrite of its ordinance.^[4]

¶11 With respect to the portion of the garage located on the north parcel, Jeffrey testified, on cross-examination, that his father, years before his death, gave Jeffrey permission to build a portion of the garage on the north parcel. Specifically, Jeffrey testified: "My dad gave me permission. He said, '[t]ake whatever you need. You need an acre, 100 feet, take whatever you want.'" Jeffrey further testified that he disclosed the fact that a portion of his garage was built on the north parcel-and done so with their father's approval-to his siblings both before and at their father's funeral.

¶12 To summarize the key points from the foregoing, the trial evidence was undisputed that, under the Crescent ordinance, if the Kuczmarski property were partitioned into four lots, only one of those lots would be a lot with lake frontage, while the remaining three lots would be off-water lots. However, because the Crescent ordinance requires off-water lots to be a minimum of five acres in size, the property is not large enough to create three off-water lots that comply with the minimum size requirement. It was also undisputed that, under either the Oneida ordinance or the Crescent ordinance, at least one owner would receive an off-water lot, which is of much less value than a lot with lake frontage. Finally, no evidence was presented to dispute Jeffrey's testimony that the siblings knew about Jeffrey's garage on the property and that he built the garage with their father's permission.

¶13 In an oral ruling, the circuit court concluded that, under State ex rel. Anderson v. Town of Newbold, 2021 WI 6, 395 Wis.2d 351, 954 N.W.2d 323, the Crescent ordinance applied to a partition of the Kuczmarski property. It also concluded that, "in absence of a variance or an amendment of the ordinance by the Town, or other action or inaction by the Town," the Crescent ordinance precluded the creation of more than one partition parcel with lake frontage. The court based this conclusion on Rein's, Olson's and Knutson's testimony.

¶14 The circuit court then found that if only one owner received a lot with lake frontage, "at least one of the other [owners] would suffer substantial economic loss." The court believed this finding was supported because "[t]he record in this case is replete with testimony to the effect that a parcel with lake frontage is substantially more valuable than an inland parcel." The court also found that Erin and the Holly Trust did not present any evidence to refute testimony regarding the difference in value between lakefront property and off-water property. Instead, the court continued, Erin and the Holly Trust only presented evidence on the potential for partitioning the Kuczmarski property in compliance with the Oneida ordinance.

¶15 For...