Jeffrey Kuczmarski v. Erin Kuczmarski

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 31, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP440 Cir. Ct. No. 2020CV36

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

JEFFREY KUCZMARSKI AND ELISE SKUBAL,

PLAINTIFFS-RESPONDENTS,

V.

ERIN KUCZMARSKI AND HOLLY L. HARPER SPECIAL NEEDS TRUST,

DEFENDANTS-APPELLANTS.

APPEAL from an order of the circuit court for Oneida County:
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).

¶1 PER CURIAM. Erin Kuczmarski and the Holly L. Harper Special
Needs Trust (hereinafter, “the Holly Trust”) appeal a circuit court order requiring
No. 2022AP440

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

1
For ease of reading, we will refer to the parties by their first names throughout the
remainder of this opinion.
2
The Holly Trust is a trust created for the benefit of Holly Harper. Erin is the Trust’s
representative. Holly is one of the Kuczmarski siblings, but her interest in this action is
represented by the Holly Trust.
3
Elise sold her 25% interest in the north parcel to Jeffrey.

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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

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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

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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

4
Knutson testified that his personal preference was to keep the ordinance requirement at
225 feet of lake frontage, but, again, he said that he could not speak to the town board’s
preference.

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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

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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 these reasons, the circuit court found that a partition of the
Kuczmarski property was not possible under the Crescent ordinance without
prejudice to one or more of the owners. The court thus concluded that a partition
of the Kuczmarski property was impossible and that a judicial sale of the property
was the required remedy.

¶16 The circuit court further found that it could not speculate as to any
potential future action or inaction by the Town of Crescent regarding the
enforcement of the Crescent ordinance, a potential grant of a variance from that
ordinance, or a potential amendment of that ordinance to conform to the Oneida
ordinance. The court explained that nothing in Knutson’s testimony provided the
court with a sufficient basis to find that the Crescent ordinance would be amended
in the near future “or that the Town will or will not do anything in the foreseeable
future that might foreclose application of the current … ordinance to the parcels in
this case.” The court added it could not assume “that partition might not be
impossible” simply because the town might or might not do something in the
future. Thus, the court concluded that the Crescent ordinance, as it existed at that
time, must be presumed to be the law applied to any potential partition of the
Kuczmarski property.

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¶17 Finally, the circuit court found that while Jeffrey’s testimony alluded
to the issue of encroachments regarding the garage, the issue “was not really
litigated actively by the parties during the bench trial.” The court noted there was
no evidence or claims that supported anything other than a conclusion that the
Kuczmarski property would be sold “as is, which includes anything on the parcels
as currently divided and surveyed, which apparently includes [Jeffrey’s] garage.”
Thus, the court found that the record did not support it “taking any other action in
connection with any encumbrance or the presence of a building supposedly
belonging to [Jeffrey] on the parcel that is to be sold.” Erin and the Holly Trust
now appeal.

DISCUSSION

I. The circuit court’s partition decision

¶18 While partition of real property is codified in the Wisconsin Statutes,
“it remains an equitable remedy.” Prince Corp. v. Vandenberg, 2016 WI 49, ¶16,
369 Wis. 2d 387, 882 N.W.2d 371. Because partition is an equitable remedy, “we
review the circuit court’s partition decision under the ‘highly deferential’
erroneous exercise of discretion standard.” Id. (citation omitted). Under this
standard of review, we “uphold the circuit court’s discretionary determination as
long as the circuit court ‘examined the relevant facts, applied a proper standard of
law, and, using a demonstrated rational process, reached a conclusion that a
reasonable judge could reach.’” Id., ¶47 (citation omitted). Whether the circuit
court’s findings constitute prejudice to the owners, however, is a question of law
that we review de novo. See LaRene v. LaRene, 133 Wis. 2d 115, 120-21, 394
N.W.2d 742 (Ct. App. 1986).

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No. 2022AP440

¶19 Partition is codified in chapter 842 of the Wisconsin Statutes. See
WIS. STAT. ch. 842 (2021-22).5 WISCONSIN STAT. § 842.02 allows a person with
“an interest in real property jointly or in common with others” to “sue for
judgment partitioning such interest.” Sec. 842.02(1). That person may seek a
judgment of partition and, alternatively, “if partition is impossible, judicial sale of
the land or interest, and division of the proceeds.” Sec. 842.02(2). If the circuit
court finds that “partition cannot be made without prejudice to the owners,” it may
order the land sold. WIS. STAT. § 842.17(1). Partition is thus impossible if it
cannot be made without prejudice to any of the owners. See Boltz v. Boltz, 133
Wis. 2d 278, 281-83, 395 N.W.2d 605 (Ct. App. 1986). Prejudice to the owners
occurs if partition results in substantial economic loss. Id. at 283; see also
Marshall & Ilsley Bank v. De Wolf, 268 Wis. 244, 247-48, 67 N.W.2d 380 (1954)
(“‘[P]rejudice to the owners’ [occurs if] the value of the share of each in case of a
partition would be materially less than his [or her] share of the money equivalent
that could probably be obtained for the whole.” (citation omitted)).

¶20 Erin and the Holly Trust first argue that the circuit court erred by
concluding that partition was impossible. They assert that the Crescent ordinance
provides that the town board may give a variance, that the town intends to
eventually have the same lake frontage ordinance as Oneida County, and that the
town has allowed partitions compliant with the Oneida ordinance in the past. As
support, Erin and the Holly Trust rely solely on Knutson’s testimony regarding the
town board’s inconsistent application of the town’s ordinances and the town
board’s purported likelihood of applying the Oneida ordinance to this case.

5
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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¶21 Erin and the Holly Trust also argue that Knutson’s testimony
distinguishes this case from Anderson. They reason that, in Anderson, the town
refused to grant a requested variance or “back off of its shoreline ordinance in any
way,” whereas here, the Town of Crescent has granted variances for other
properties in the past and, they contend, will likely grant the parties a variance to
partition the Kuczmarski property in compliance with the Oneida ordinance.
Indeed, in their reply, Erin and the Holly Trust argue that the circuit court did not
have the legal authority to “strip[]” the town of its right to “interpret, amend,
rescind, and enforce” its ordinance and instead should have ordered the parties to
apply for a variance.

¶22 As our supreme court made clear in Anderson, pursuant to
WIS. STAT. § 236.45(2)(ac), a town may enact a subdivision ordinance that is more
restrictive than a county zoning ordinance. See Anderson, 395 Wis. 2d 351,
¶¶49-50. In Anderson, the petitioner sought to subdivide his property into two
lots, one with 195 feet of lake frontage and the other with 163.43 feet of lake
frontage. Id., ¶5. The Town of Newbold’s ordinance required each lot to include
at least 225 feet of lake frontage. Id., ¶6. Because the petitioner’s proposed
subdivision did not comply with the town’s ordinance, the town board denied the
petitioner’s request to subdivide his property. Id. On appeal, the petitioner argued
the town’s ordinance was unenforceable because the town did not have the
authority to enact an impermissible shoreland zoning regulation under WIS. STAT.
§ 59.692. Anderson, 395 Wis. 2d 351, ¶34.

¶23 The Wisconsin Supreme Court concluded that in denying the
petitioner’s proposed subdivision, the town board correctly enforced its
subdivision ordinance because the town’s ordinance was “a permissible exercise
of the [t]own’s subdivision authority pursuant to WIS. STAT. § 236.45.”

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Anderson, 395 Wis. 2d 351, ¶3. The court determined the town’s ordinance was a
subdivision ordinance enacted under § 236.45, as opposed to a zoning ordinance
enacted under WIS. STAT. § 59.692. Anderson, 395 Wis. 2d 351, ¶¶47-49. Under
§ 236.45, a town can enact subdivision ordinances that are more restrictive than
the provisions of WIS. STAT. ch. 236. Anderson, 395 Wis. 2d 351, ¶28. The court
explained that while zoning and subdivision authority both regulated lot size,
nothing in chapter 236 indicated that shoreland areas were exempt from
subdivision regulation. Id., ¶49. As a result, the town had the authority to enact a
more restrictive ordinance under its subdivision authority in § 236.45. See
Anderson, 395 Wis. 2d 351, ¶50.

¶24 Here, the circuit court correctly applied Anderson and determined
that the Crescent ordinance applied to the partition of the Kuczmarski property.
Despite this controlling law, Erin and the Holly Trust essentially argue that the
court should not have followed Anderson and should not have applied the
Crescent ordinance because the town might have granted a variance if the parties
requested one. None of the parties here, however, ever applied for a variance from
the town board. Thus, the court had no legal basis to ignore the Crescent
ordinance based on any possibility that the town might not enforce the ordinance,
given that Anderson required the court to apply the otherwise-lawful Crescent
ordinance. Erin and the Holly Trust make no further attempts to distinguish
Anderson to support their argument that the court should not have applied it. Nor
do they point us to any other authority to support their argument that the Crescent
ordinance did not apply in this case.

¶25 Moreover, Knutson’s trial testimony does not support Erin and the
Holly Trust’s argument that the Town of Crescent would grant the parties a
variance and likely apply the Oneida ordinance to future partitions—either

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generally or for the Kuczmarski property specifically. Knutson is not “the town.”
Furthermore, and as the circuit court noted, nothing in Knutson’s testimony
suggested—much less established—that the town would amend its ordinance in
the future “or that the Town will or will not do anything in the foreseeable future
that might foreclose application of the current subdivision ordinance to the parcels
in this case.” Knutson testified that the Crescent ordinance requiring 225 feet of
lake frontage remained the town’s current ordinance. While Knutson testified that
the town would consider a variance request or might consider amending its
ordinance, he did not know—and he could not know—whether the town would
actually grant a variance or amend its ordinance.

¶26 In short, nothing in Knutson’s testimony provided the circuit court
with a basis to find that the Town of Crescent would grant the parties a variance to
solve the partition impossibility or would amend its ordinance to conform to the
Oneida ordinance. Thus, the court correctly found that because it could not
speculate as to the town’s actions regarding the application of the Crescent
ordinance, the Crescent ordinance applied. Accordingly, the court correctly
concluded it had to follow Anderson and apply the Crescent ordinance to the
partition of the Kuczmarski property.

¶27 The notion that a property owner can make a partition “possible,” in
lieu of the sale of a property, merely on the basis that a town may grant a variance,
without that owner actually ever seeking a variance, is specious. It is plainly an
affront to the principal holding in Anderson. Indeed, the only way to have the
town state an actual position on anything regarding the Kuczmarski property was
to have petitioned the town to act in the manner that Erin and the Holly Trust now
assert to be “likely.” In other words, a property owner cannot benefit from failing
to seek the very type of variance relied upon in Anderson—which, if granted,

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would of course obviate the issue in this case—and then avoid the legal effect
under Anderson of that variance being denied.

¶28 After the circuit court concluded that the Crescent ordinance applied,
it correctly found that partition of the Kuczmarski property was impossible under
that ordinance. This conclusion is not in any real dispute. The record is clear that
the Kuczmarski property cannot be partitioned under the Crescent ordinance for
the benefit of its four owners. The ordinance requires lake lots to include at least
225 feet of lake frontage. Both Rein and Vreeland testified that in any partition
under the Crescent ordinance, only one lakefront lot could be created and three
off-water lots could not be created. For this reason, Rein testified it would not be
possible to partition the Kuczmarski property among the four owners. Erin and
the Holly Trust did not dispute this testimony, insomuch as they presented no
testimony on the application of the Crescent ordinance to a partition of the
Kuczmarski property. As the court noted, Erin and the Holly Trust’s evidence
focused only on whether partition was possible under the Oneida ordinance.

¶29 Additionally, Olson testified that based on the quality and quantity
of the Kuczmarski property, it was impossible to equitably divide the property
among the three siblings and the Holly Trust, even by attempting to reflect their
differing percentage ownership interests. Several witnesses also testified to the
fact that a lakefront property was of significantly higher value and better quality
than an off-water property. Thus, even if the property could be separated into four
lots, one owner would receive a high-quality, high-value lake lot, while the other
three owners would receive lower-quality, off-water lots. Setting aside the issue
of being unable to satisfy the five-acre-minimum-lot-size requirement, because
only one owner would receive a lake lot under the Crescent ordinance, the circuit
court quite reasonably determined, in equity, that at least one owner would suffer

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economic loss as a result of a partition of the Kuczmarski property. Because a
partition of the Kuczmarski property results in economic loss to at least one
owner, we agree, as a de novo matter, with the court’s finding that at least one
owner would be prejudiced as a result of the partition. See LaRene, 133 Wis. 2d
at 120-21.

¶30 In sum, the circuit court correctly concluded that, under Anderson,
the Crescent ordinance applied to the partition of the Kuczmarski property. It also
correctly found that a partition of the Kuczmarski property is not possible under
the Crescent ordinance because the four lots would not satisfy the requirements in
the ordinance and, even if the property could be divided into four lots, one or more
owners would invariably be prejudiced as a result of the partition. Accordingly,
the court did not erroneously exercise its discretion by failing to order partition of
the Kuczmarski property.

II. The requested amended counterclaim and Jeffrey’s garage

¶31 Erin and the Holly Trust next argue that the circuit court erred by
“stay[ing]” their motion for leave to file an amended counterclaim and by
determining that the Kuczmarski property could be sold with a portion of Jeffrey’s
garage on the property. They assert that Jeffrey created an encroachment, did not
notify his siblings about the encroachment, and the encroachment reduced the
value of the north parcel. As an initial matter, Erin and the Holly Trust do not
point to anything in the record that shows they pursued their motion to file an
amended counterclaim or that the court issued a decision that stayed the motion.
Because the issue was not advanced in the circuit court, it is not properly before
this court. See State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501 (1997)

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(“The general rule is that issues not presented to the circuit court will not be
considered for the first time on appeal.”). We will therefore not address it.

¶32 Also, as the circuit court noted, Erin and the Holly Trust did not
litigate any issue regarding the garage during the trial. Jeffrey testified that he
built a portion of his garage on the north parcel of the Kuczmarski property with
his father’s permission and that he long ago disclosed this fact to his siblings.
Notably, Erin and the Holly Trust presented no testimony or other evidence
disputing Jeffrey’s testimony at trial. They also presented no evidence showing
that the garage reduced the value of the north parcel. Consequently, the court
could not take any action regarding the garage on the Kuczmarski property other
than to order the sale of the property, including the portion containing part of the
garage, as it was. The court did not erroneously exercise its discretion when it
found that the Kuczmarski property could be sold with a portion of Jeffrey’s
garage on the property.

III. Jeffrey and Elise’s motion for sanctions for a frivolous appeal

¶33 As respondents, Jeffrey and Elise filed a motion for costs, attorney
fees, and other fees as a sanction for Erin and the Holly Trust having brought a
frivolous appeal under WIS. STAT. RULE 809.25(3). They argue that Erin and the
Holly Trust had no basis in law or fact to support their position on appeal. They
assert that Erin, the Holly Trust, and their counsel knew that: (1) the circuit court
could not ignore Anderson and enter an order violating the Crescent ordinance;
(2) it was impossible to partition the Kuczmarski property under the Crescent
ordinance; and (3) the arguments regarding their counterclaims and the
encroachment have no support in the record.

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¶34 If this court finds an appeal to be frivolous, we “shall award to the
successful party costs, fees, and reasonable attorney fees.” WIS. STAT.
RULE 809.25(3)(a). The awarded costs, fees, and attorney fees may be assessed
fully against the appellant or the appellant’s attorney or may be assessed so that
the appellant and the appellant’s attorney “each pay a portion of the costs, fees and
attorney fees.” RULE 809.25(3)(b). An appeal is frivolous under
RULE 809.25(3)(a) if we find one or more of the following: (1) the appeal “was
filed, used or continued in bad faith, solely for purposes of harassing or
maliciously injuring another”; or (2) “[t]he party or the party’s attorney knew, or
should have known, that the appeal or cross-appeal was without any reasonable
basis in law or equity and could not be supported by a good faith argument for an
extension, modification or reversal of existing law.” RULE 809.25(3)(c)1.-2.

¶35 Whether an appeal is frivolous is a question of law. Howell v.
Denomie, 2005 WI 81, ¶9, 282 Wis. 2d 130, 698 N.W.2d 621. When determining
whether an appeal is frivolous, this court “looks to what a reasonable party or
attorney knew or should have known under the same or similar circumstances.”
Id. “[A]ll doubts about whether an appeal is frivolous must be resolved in favor of
the appellant.” Larson v. Burmaster, 2006 WI App 142, ¶48, 295 Wis. 2d 333,
720 N.W.2d 134. In order to award costs and attorney fees, we “must conclude
that the entire appeal is frivolous.” Howell, 282 Wis. 2d 130, ¶9.

¶36 Here, we agree with Jeffrey and Elise that Erin and the Holly Trust
should have known that no reasonable basis existed to support their positions on

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appeal.6 First, Erin and the Holly Trust have no reasonable basis to argue that the
circuit court erred by finding partition was impossible because the Crescent
ordinance clearly applies under Anderson. They essentially argue, without
support, that the court should have ignored Anderson and applied the Oneida
ordinance in a partition of the Kuczmarski property. Their only argument for
doing so is a specious one that their own failure to seek a variance from the town
somehow places them in a better position, under the law, than the petitioner in
Anderson, whose variance petition had been denied. See supra, ¶¶24-27. To the
extent this argument was intended as being for an extension, modification or
reversal of existing law, it lacked any reasonable, good faith basis.

¶37 Furthermore, as previously explained, the record is clear that a
partition under the Crescent ordinance was impossible, and Erin and the Holly
Trust did not—and seemingly could not—advance any argument to the contrary.
See supra, ¶¶28-29. Erin and the Holly Trust do not point to any facts in the
record that show a partition under the Crescent ordinance was possible because
they presented no testimony or other evidence at trial regarding the application of
the Crescent ordinance to the Kuczmarski property.

¶38 Second, Erin and the Holly Trust have no reasonable basis to argue
that the circuit court erred by “stay[ing]” their motion for leave to amend their
counterclaim. As an initial matter, the record contains no order from the court that

6
While our analysis that follows stands on its own merit, we would be remiss to not
point out that Erin and the Holly Trust’s written objection to Jeffrey and Elise’s thorough motion
for costs contains little substantive analysis as to the arguments made in that motion, which
largely track the rationale we employ here regarding the lack of any reasonable basis in law or
equity for their appeal. To be clear, we do not, and need not, reach any conclusion that the appeal
was frivolous in the sense that it was done in bad faith, solely for purposes of harassing or
maliciously injuring Jeffrey and Elise.

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stayed, granted, or denied the motion. In any event, Erin and the Holly Trust have
no reasonable basis to argue that the court erred by finding that the Kuczmarski
property could be sold with a portion of Jeffrey’s garage on the property. The
record shows the court could take no action with respect to the garage because
Erin and the Holly Trust did not pursue any issue regarding the garage at trial and
never disputed Jeffrey’s testimony regarding the garage.

¶39 In short, Erin, the Holly Trust, and their attorney should have
known, based on Anderson, the record in this case, and the arguments they
actually advanced in the circuit court, that no reasonable basis existed, in either
fact or law, to support their positions on appeal. Thus, we conclude that Erin and
the Holly Trust’s entire appeal is frivolous. We therefore remand the matter to the
circuit court to determine the amount of costs, fees, and reasonable attorney fees
incurred by Jeffrey and Elise in responding to Erin and the Holly Trust’s appeal
and to issue an award accordingly.

By the Court.—Order affirmed and cause remanded with directions.

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

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