Daniel Kiersten v. Russell G. Kuenzi

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.
June 12, 2025
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. 2024AP884 Cir. Ct. No. 2022PR275

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE ESTATE OF MILTON S. KUENZI:

DANIEL KIERSTEN,

APPELLANT,

V.

RUSSELL G. KUENZI,

RESPONDENT.

APPEAL from an order of the circuit court for Dodge County:
BRIAN A. PFITZINGER, Judge. Reversed and cause remanded for further
proceedings.

Before Blanchard, Nashold, and Taylor, 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).
No. 2024AP884

¶1 PER CURIAM. Daniel Kiersten and Milton Kuenzi executed a
written agreement (“the Agreement”) in which Kiersten promised to provide
caretaking services for Kuenzi, and, as pertinent here, Kuenzi promised to give
title to his house to Kiersten when Kuenzi died. Kiersten provided caretaking
services to Kuenzi for approximately five months, then terminated the Agreement.
When Kuenzi died over six years later, Kiersten filed a claim against Kuenzi’s
estate (“the Estate”), alleging that the title to Kuenzi’s house should be transferred
to Kiersten pursuant to the Agreement.1 The Estate objected to Kiersten’s claim,
arguing that Kuenzi’s promise to give title to his house to Kiersten is
unenforceable because it was a promise to make a future gift, or in the alternative,
it lacked sufficient consideration. The Estate also contended that the claim is time
barred. Kiersten argued that Kuenzi’s promise is enforceable because it
constituted a promise to Kiersten in consideration for Kiersten’s promise to
provide caretaking services to Kuenzi. The circuit court granted summary
judgment in favor of the Estate, concluding that Kuenzi’s promise to give title to
his house to Kiersten on Kuenzi’s death is unenforceable because the promise was
a future gift to Kiersten rather than in consideration for Kiersten’s promise to
provide caretaking services.

¶2 On appeal, both Kiersten and the Estate argue that the Agreement is
unambiguous and that summary judgment should be granted in their favor. In the
alternative, the Estate argues that the Agreement fails to satisfy WIS. STAT.
§ 706.02 (2023-24), the statute of frauds for transactions affecting land. 2 We
1
Russell Kuenzi, Milton Kuenzi’s son, is the personal representative of his father’s
estate and the trustee of his father’s trust. Although Russell is named as the respondent in this
case, we refer to the respondent as “the Estate” for ease of reference.
2
All references to the Wisconsin Statutes are to the 2023-24 version.

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conclude that summary judgment is not appropriate in favor of the Estate or in
favor of Kiersten because the Agreement is ambiguous as to whether Kuenzi’s
promise to give title to his house to Kiersten was an unenforceable future gift or
was an enforceable promise provided in consideration for Kiersten’s promised
caretaking services. The extrinsic evidence submitted by each party in the circuit
court proceedings to support their respective positions does not resolve this
ambiguity, but instead underscores the existence of a genuine dispute of material
fact regarding that issue. We also reject the Estate’s argument that the Agreement
fails to satisfy the statute of frauds. Accordingly, we reverse the circuit court’s
grant of summary judgment in favor of the Estate, and we remand for further
proceedings consistent with this opinion.

BACKGROUND

¶3 There is no dispute as to the following material facts.

¶4 Kiersten is the son-in-law of Kuenzi’s deceased wife. On April 6,
2016, Kiersten and Kuenzi signed the Agreement. In the Agreement, Kiersten
promised to provide a variety of caretaking services for Kuenzi due to Kuenzi’s
age, including assistance with Kuenzi’s transportation, daily activities, medical
care, personal hygiene, and nutrition. The Agreement stated that Kiersten would
provide these caretaking services for the remainder of Kuenzi’s lifetime, although
either party had the option to “unilaterally terminate” the Agreement with 60 days’
written notice to the other party.

¶5 Kuenzi also made promises to Kiersten in the Agreement. First,
Kuenzi promised to pay Kiersten a “one-time upfront payment of $191,000,”
which would be paid on the day that Kiersten began providing caretaking services.
The Agreement said that “[t]his sum … is considered to be a gift by both

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[Kiersten] and [Kuenzi].” Second, Kuenzi promised to include a provision in his
estate planning documents providing, in pertinent part, that on his death, Kiersten
would receive title to Kuenzi’s house. The Agreement stated that “this gift should
be considered to be a death-time bequest from [Kuenzi] to [Kiersten].” The
Agreement provided that both the cash amount and the transfer of the house title
would “remain in effect” if either party terminated the Agreement. The
Agreement also stated that Kiersten and Kuenzi made these promises to one
another “as a matter of love and affection.”

¶6 After signing the Agreement, Kuenzi revised his revocable trust, in
pertinent part, to give title to his house to Kiersten on Kuenzi’s death. On May 6,
2016, Kiersten moved from Colorado to Wisconsin and began providing
caretaking services to Kuenzi. Kuenzi paid Kiersten the promised $191,000 at that
time.

¶7 On July 27, 2016, Kiersten provided written notice to Kuenzi that he
was terminating the Agreement and that he would stop providing caretaking
services in 60 days. Kiersten said that he needed to return to Colorado to address
issues regarding the sale of his house. On September 26, 2016, Kiersten stopped
providing caretaking services and moved back to Colorado. Soon thereafter,
Kuenzi revoked the provision in his revocable trust that would have transferred
title to his house to Kiersten on Kuenzi’s death.

¶8 Kuenzi died in September 2022. Kiersten filed a claim against the
Estate, asserting that Kuenzi had promised to give Kiersten title to Kuenzi’s house
on Kuenzi’s death. The Estate objected to Kiersten’s claim. Both parties moved
for summary judgment regarding the enforceability of Kuenzi’s house-related
promise. The Estate argued that Kuenzi’s house-related promise is not

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enforceable because it was a promise to make a future gift. In the alternative, the
Estate argued that the Agreement was unsupported by sufficient consideration and
is also unenforceable under WIS. STAT. § 706.02, the statute of frauds for
transactions affecting land. Kiersten argued that Kuenzi’s promise is enforceable
because it was given in consideration for Kiersten’s promise to provide caretaking
services. Kiersten also argued that the statute of frauds does not apply to the
Agreement.

¶9 The circuit court granted summary judgment in favor of the Estate,
concluding that Kuenzi’s house-related promise is an unenforceable gift. The
court interpreted the Agreement as unambiguously creating three independent and
unrelated promises: (1) Kuenzi’s promise to give Kiersten $191,000, which was a
gift to Kiersten and was not given as consideration for Kiersten’s caretaking
services; (2) Kuenzi’s promise to give title to his house to Kiersten, which was
also a gift to Kiersten and was not offered as consideration for Kiersten’s
caretaking services; and (3) Kiersten’s promise to provide caretaking services to
Kuenzi, which was a promise made in exchange for only “love and affection.”
Because Kuenzi’s house-related promise was a gift and was not given as
consideration for Kiersten’s promise to provide caretaking services, the court
concluded that Kuenzi’s promise lacked consideration. Kiersten appeals.

DISCUSSION

¶10 The issue presented on appeal is whether summary judgment should
be granted in either party’s favor. This determination requires us to consider
whether Kuenzi’s house-related promise, as described in the Agreement, was
intended by the parties as a future gift to Kiersten or was provided in consideration
for Kiersten’s promise to provide caretaking services. If Kuenzi’s house-related

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promise was a gift, then, as explained below, it is an unenforceable promise; if this
promise was consideration for Kiersten’s promised caretaking services, then it is
an enforceable promise. We also address the Estate’s argument that the
Agreement fails to satisfy the statute of frauds.

¶11 For the following reasons, we conclude that the Agreement is
ambiguous as to whether Kuenzi’s house-related promise was a gift or provided in
consideration for Kiersten’s caretaking services, and we conclude that the extrinsic
evidence leaves a genuine dispute of material fact as to the nature of Kuenzi’s
promise. As a result, we conclude that neither party’s motion for summary
judgment should be granted. We also reject the Estate’s alternative argument that
the Agreement fails to satisfy the statute of frauds. Therefore, we reverse the
circuit court’s order and remand for further proceedings consistent with this
opinion.

I. Standard of Review for Summary Judgment and Contract Interpretation

¶12 We review a circuit court’s decision granting or denying summary
judgment independently, but we apply the same methodology as the court.
Mrozek v. Intra Fin. Corp., 2005 WI 73, ¶14, 281 Wis. 2d 448, 699 N.W.2d 54.
On summary judgment, the moving party is entitled to judgment as a matter of law
“if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” WIS. STAT. § 802.08(2). “The purpose of the summary judgment procedure
is not to try issues of fact but to avoid trials where there is nothing to try.” Rollins
Burdick Hunter of Wis., Inc. v. Hamilton, 101 Wis. 2d 460, 470, 304 N.W.2d
752 (1981).

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¶13 In reviewing the parties’ motions for summary judgment, we apply
the following methodology.3 We consider the moving party’s affidavits or other
proof to determine whether the moving party has made a prima facie case for
summary judgment under WIS. STAT. § 802.08(2). Preloznik v. City of Madison,
113 Wis. 2d 112, 116, 334 N.W.2d 580 (Ct. App. 1983). If the moving party has
made a prima facie case for summary judgment, we examine “the affidavits
submitted by the opposing party for evidentiary facts and other proof to determine
whether a genuine issue exists as to any material fact, or reasonable conflicting
inferences may be drawn from the undisputed facts, and therefore a trial is
necessary.” Id.

¶14 “A factual issue is ‘genuine’ if the evidence is such that a reasonable
[finder of fact] could return a verdict for the nonmoving party.” Strasser v.
Transtech Mobile Fleet Serv., Inc., 2000 WI 87, ¶32, 236 Wis. 2d 435, 613
N.W.2d 142. “A ‘material fact’ is one that impacts the resolution of the
controversy.” Id. When determining whether there is a “genuine issue as to any
material fact,” the affidavits and other proof submitted by the parties are viewed
“in the light most favorable to the nonmoving party.” Mrozek, 281 Wis. 2d 448,
¶14 (citation omitted).

¶15 In this matter, each party has moved for summary judgment, but that
does not require us to grant summary judgment to either party. “When confronted
with cross-motions for summary judgment, the reviewing court must rule on each

3
The initial step in summary judgment methodology is to examine the pleadings to
determine whether a claim for relief is stated and whether a material issue of fact is presented.
Preloznik v. City of Madison, 113 Wis. 2d 112, 116, 334 N.W.2d 580 (Ct. App. 1983). Here, the
parties do not dispute that this step has been satisfied.

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party’s motion on an individual basis.” American Trucking Assocs., Inc. v. State,
205 Wis. 2d 494, 499 n.4, 556 N.W.2d 761 (Ct. App. 1996). “Each motion must
be denied if material factual issues exist as to the motion.” Id.

¶16 This appeal also requires us to interpret the language of the
Agreement. “The interpretation of a contract is a question of law that we review
independently of the circuit court.” BV/B1, LLC v. InvestorsBank, 2010 WI App
152, ¶19, 330 Wis. 2d 462, 792 N.W.2d 622. “The primary goal in contract
interpretation is to give effect to the parties’ intentions.” Seitzinger v. Community
Health Network, 2004 WI 28, ¶22, 270 Wis. 2d 1, 676 N.W.2d 426. “We
ascertain the parties’ intentions by looking to the language of the contract itself,”
and we interpret the language “consistent with what a reasonable person would
understand the words to mean under the circumstances.” Id. We interpret specific
provisions of a contract in the context of the contract as a whole. Little Chute
Area Sch. Dist. v. Wisconsin Educ. Ass’n Council, 2017 WI App 11, ¶25, 373
Wis. 2d 668, 892 N.W.2d 312.

¶17 Whether a contract is ambiguous is a question of law that we review
de novo. Chapman v. B.C. Ziegler & Co., 2013 WI App 127, ¶2, 351 Wis. 2d
123, 839 N.W.2d 425. A contract is ambiguous when its terms are “reasonably
susceptible to more than one interpretation.” BV/B1, 330 Wis. 2d 462, ¶19. If the
contract is unambiguous, “we construe the contract as it stands and apply its literal
meaning.” Id. If the contract is ambiguous, we may “look beyond the face of the
contract and consider extrinsic evidence to resolve the parties’ intent.” Town
Bank v. City Real Est. Dev., LLC, 2010 WI 134, ¶33, 330 Wis. 2d 340, 793
N.W.2d 476. Extrinsic evidence may include “the conduct of the parties and the
negotiations which took place, both before and after the execution of the
documents, and … all related documents of the parties.” Kernz v. J.L. French

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Corp., 2003 WI App 140, ¶10, 266 Wis. 2d 124, 667 N.W.2d 751 (citation
omitted). The meaning of an ambiguous contract is a question of fact. Town
Bank, 330 Wis. 2d 340, ¶32.

¶18 When interpreting a contract in the context of a summary judgment
motion, summary judgment should not be granted if the “contract is ambiguous
and the intent of the parties to the contract is in dispute.” Energy Complexes, Inc.
v. Eau Claire County, 152 Wis. 2d 453, 466-67, 449 N.W.2d 35 (1989). In other
words, summary judgment is not appropriate if: (1) material language in the
contract is susceptible to more than one reasonable interpretation; and (2) the
extrinsic evidence submitted by the parties demonstrates that there is a genuine
dispute of fact regarding the parties’ intent. Id. at 468-69.

II. The Agreement is Ambiguous

¶19 The first issue is whether Kuenzi’s house-related promise, as stated
in the Agreement, is enforceable. We conclude that summary judgment is not
appropriate here because the Agreement is ambiguous as to whether Kuenzi’s
promise was a future gift to Kiersten, and therefore not enforceable, or whether
that promise was given in consideration for Kiersten’s promise to provide
caretaking services, and therefore enforceable. Further, the extrinsic evidence
produced by each party in the circuit court proceedings shows a genuine dispute of
material fact regarding the intent of each of the parties on this issue.

¶20 The three elements of an enforceable contract are offer, acceptance,
and consideration. Runzheimer Int’l, Ltd. v. Friedlen, 2015 WI 45, ¶20, 362
Wis. 2d 100, 862 N.W.2d 879. Here, there is no dispute that Kuenzi’s house-
related promise was offered and accepted, so we focus on whether that promise
was supported by consideration. One way for a contract to be supported by

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consideration is if there is an “exchange of promises”—i.e., one party’s promise is
given in exchange for the other party’s promise. Id., ¶21. Mutually exchanged
promises will constitute sufficient consideration even if the benefits or detriments
to the parties are not equal in value. Levin v. Perkins, 12 Wis. 2d 398, 403, 107
N.W.2d 492 (1961); WIS JI—CIVIL 3020 (“The promises must be equally binding
upon both parties, but it is not necessary that the value of the promises be equal.”).
However, a promise made out of the promisor’s love and affection for the
promisee will not alone suffice to provide sufficient consideration needed to
enforce a contract. See Grueneberg v. Briese, 240 Wis. 426, 431, 3 N.W.2d 691
(1942) (love and affection is an insufficient consideration to support a contract for
future performance); Odell v. Smith, 226 Wis. 556, 558-59, 277 N.W. 141 (1938)
(“Natural love and affection or gratitude … as distinguished from valuable[]
considerations, will not alone suffice to support the promise contained in a bill or
note.”).

¶21 In contrast, a gift requires no consideration. A gift may be
enforceable as part of a contract if it is “completed,” which occurs when the
following elements are satisfied: “(1) Intention to give, (2) delivery, (3) end of
dominion by donor, [and] (4) creation of dominion in donee.” Peters v. Peters
Auto Sales, Inc., 37 Wis. 2d 346, 350, 155 N.W.2d 85 (1967). Applying these
elements, a mere promise to make a gift of property cannot be enforced because
actual delivery of the property is essential; a mere promise to deliver is not
delivery and has not accomplished the dominion elements. Odell, 226 Wis. at 560
(citations omitted).

¶22 In determining whether the promises contained in the Agreement
here provided sufficient consideration to constitute an enforceable contract, we
must interpret the language of the agreement using the principles of contract

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interpretation discussed above.4 See Habel v. Estate of Capelli, 2020 WI App 15,
¶¶12-15, 391 Wis. 2d 399, 941 N.W.2d 858. In doing so, we conclude that the
Agreement contains ambiguous language concerning the intent of the parties
regarding the nature of Kuenzi’s house-related promise.

¶23 Under one reasonable interpretation of the Agreement, Kuenzi’s
house-related promise could be a future gift to Kiersten rather than in
consideration for Kiersten’s promise to provide caretaking services. This
interpretation is supported by the following portions of the Agreement. In the
subsection referencing Kuenzi’s house, the Agreement states that “this gift should
be considered to be a death-time bequest” and “shall not be modified in the event
that this Agreement is terminated for any reason prior to [Kuenzi’s] death.” This
language reasonably suggests that Kuenzi’s house-related promise was not in
consideration for Kiersten’s promise to provide caretaking services, but as a future
gift that would not be retracted should the Agreement be terminated. In other
words, even if Kiersten terminated the Agreement as allowed and ceased
performing caretaking services, title to Kuenzi’s house would still be transferred to
Kiersten on Kuenzi’s death.

¶24 The Agreement also states that “[Kiersten] is providing services to
… [Kuenzi] as a matter of love and affection,” and that “the total consideration …
is given by [Kuenzi] to [Kiersten] as a matter of love and affection.” These

4
The Agreement provides that the consideration for the parties’ promises is “set forth
herein.” The Agreement also contains an integration clause stating that the Agreement
“represents the parties’ entire understanding regarding the [A]greement’s subject matter” and
contains “[a]ll express or implied, oral or written agreements, covenants, representations, and
warranties of the parties regarding the subject matter of this [A]greement.” These provisions
unambiguously show that the parties intended to memorialize consideration in the Agreement.

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clauses further support the interpretation that Kiersten was not expecting to
receive title to Kuenzi’s house in consideration for Kiersten’s caretaking services.
Rather, he promised to provide caretaking services because of the mutual love and
affection shared by the parties. When all of these provisions of the Agreement are
read together, they support a reasonable interpretation of the Agreement that
Kuenzi’s house-related promise was an incomplete gift and therefore is
unenforceable.

¶25 But under a different reasonable interpretation of the Agreement,
Kuenzi’s house-related promise was in consideration for Kiersten’s promise to
provide caretaking services to Kuenzi. This interpretation is supported by the
following language in the Agreement. A “whereas” clause of the Agreement
states that “[Kuenzi] has requested and [Kiersten] has agreed to provide necessary
services, for good and valuable consideration, as more particularly set forth
herein.” See Levy v. Levy, 130 Wis. 2d 523, 534, 388 N.W.2d 170 (1986) (“The
recital or whereas clause of a contract may be examined to determine the intention
of the parties.”). This clause reasonably suggests that Kiersten promised to
provide “necessary services” for Kuenzi in exchange for the “good and valuable
consideration” described in the Agreement, which could include Kuenzi’s house-
related promise. This clause also suggests that Kiersten expected to receive more
than just “love and affection” from Kuenzi in compensation for Kiersten’s promise
to provide caretaking services.

¶26 Other sections of the Agreement also support this interpretation.
One section titled “Consideration” states that “[Kuenzi] intends to pay cash and
other good and valuable consideration to [Kiersten] as computed in this Section

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[of the Agreement]” and that the “consideration to be rendered by [Kuenzi] does
not in any way represent fair market value for the intended services.” 5 In a
following subsection of the Agreement, Kuenzi promised, in pertinent part, to give
title to his house to Kiersten when Kuenzi died. When read together, these
provisions reasonably suggest that love and affection were not the only
consideration being provided by each party, but that Kuenzi’s house-related
promise was intended to be the “other good and valuable consideration” provided
for Kiersten’s promised caretaking services, and that the consideration provided
by Kuenzi exceeded the fair market value of Kiersten’s caretaking services. As
discussed above, for there to be sufficient consideration in an agreement, “[t]he
promises must be equally binding upon both parties, but it is not necessary that the
value of the promises be equal.” WIS JI—CIVIL 3020.

¶27 Because the Agreement is susceptible to more than one reasonable
interpretation with respect to the nature of Kuenzi’s house-related promise, we
conclude that the Agreement is ambiguous in that respect. As a result, we must
now determine whether the affidavits and other proof submitted by the parties
show a genuine dispute of material fact as to the intent of the parties. See Energy
Complexes, 152 Wis. 2d at 466-67. We conclude that they do show a genuine
dispute.

¶28 To support its interpretation of the Agreement, the Estate points to a
deposition in which Kiersten testified that he and Kuenzi initially intended for the
$191,000 and the house together to constitute payment for Kiersten’s services, but

5
We do not refer to the section titled “Consideration” for interpretive purposes, but only
for identification purposes, pursuant to the Agreement.

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they ultimately agreed that the money and the house would be a “gift” and that
Kiersten would not be getting paid for his caretaking services. This testimony
would reasonably support a finding that Kiersten and Kuenzi did not intend for
Kuenzi’s house-related promise to provide consideration for Kiersten’s promise to
provide caretaking services.

¶29 To support his interpretation, Kiersten points to a letter that he
received from Kuenzi’s attorney after Kiersten provided his notice terminating the
Agreement. In that letter, Kuenzi’s attorney—who drafted the Agreement—
acknowledged that Kiersten had been “substantially compensated” under the
Agreement and asked Kiersten to “release any and all interest in Mr. Kuenzi’s
[house].” In itself, this reasonably supports a finding that Kuenzi treated his
house-related promise as an enforceable promise, otherwise his attorney likely
would have mentioned the unenforceability of this provision in this letter and
would not have asked Kiersten to release his “interest” in Kuenzi’s house.
Additionally, Kiersten points to a previous draft of the Agreement that did not use
the word “gift” and stated that Kiersten’s “compensation” was a “reasonable fair
market value for the services to be rendered by [Kiersten].” Kiersten contrasts this
language with the final draft of the Agreement, which described Kuenzi’s house-
related promise as a “gift” and stated that the “consideration recited in this
Agreement may not accurately reflect fair market value.” These revisions
reasonably suggest that the use of the word “gift” in the final draft of the
Agreement may have been intended simply to denote the unequal value of the
parties’ mutual promises, rather than to establish that Kiersten expected to receive
no compensation from Kuenzi in exchange for Kiersten’s caretaking services. See
RESTATEMENT (SECOND) OF CONTRACTS, § 71 cmt. c (AM. L. INST. 1981) (even if

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mutually exchanged promises contain an element of “gift” due to the unequal
value of the promises, the mutual promises can still constitute consideration).

¶30 Based on this review of the extrinsic evidence submitted by the
parties in support of their summary judgment motions, we conclude that, at this
point in the proceedings, there is a genuine issue of material fact as to whether
Kuenzi’s house-related promise was an incomplete and unenforceable gift or
whether it was offered in consideration for Kiersten’s promise to provide
caretaking services. The resolution of this issue is dependent on this material
factual determination. We therefore conclude that summary judgment is not
appropriate in favor of either party, and summary judgment in favor of the Estate
was in error. Accordingly, we remand for further proceedings consistent with this
opinion.6

III. The Statute of Frauds

¶31 In the alternative, the Estate argues that, even if Kuenzi’s house-
related promise pursuant to the Agreement is supported by consideration, the
Agreement is unenforceable under WIS. STAT. § 706.02, the statute of frauds for
transactions affecting land. This statute applies to any “transaction by which any
interest in land is created, aliened, mortgaged, assigned or may be otherwise
affected in law or in equity.” WIS. STAT. § 706.001(1). We assume without

6
Kiersten also argues that Kuenzi’s house-related promise was supported by “moral
consideration.” Moral consideration exists when a promisor has previously received “something
of value” from the promisee that creates a “moral” obligation to repay. Onsrud v. Paulsen, 219
Wis. 1, 4, 261 N.W. 541 (1935). Here, “moral consideration” cannot support Kuenzi’s promise
because Kuenzi had not received “something of value” from Kiersten (such as caretaking
services) at the time the Agreement was signed that might have created a moral obligation for
Kuenzi to repay. See id.

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deciding that the house-related promise in the Agreement is a “transaction” within
this definition. Under § 706.02(1), such transactions must be “evidenced by a
conveyance”—i.e., a “written instrument”—that satisfies the following relevant
requirements: (1) it “[i]dentifies the land”; (2) it “[i]s delivered”; and (3) if the
grantor’s death is a “parol limitation or condition” of delivery of the conveyance,
then such condition is enforceable only if it arises in a lawsuit that was filed before
the grantor’s death. Sec. 706.02(1)(b), (g); WIS. STAT. § 706.01(4). We also
assume without deciding that the Agreement meets the definition of a conveyance
under § 706.02(1), i.e., that it constitutes a written instrument for a transaction
affecting an interest in land. However, even with these assumptions that the
statute of frauds applies to the Agreement, we reject the Estate’s arguments that
the Agreement violates the statute of frauds for the following reasons.

¶32 First, the Agreement sufficiently identifies the land at issue pursuant
to WIS. STAT. § 706.02(1)(b). The statute of frauds does not require a legal
description of the land, but rather a description of the land “to a reasonable
certainty.” Prezioso v. Aerts, 2014 WI App 126, ¶23, 358 Wis. 2d 714, 858
N.W.2d 386 (citation omitted). In deciding whether a document conforms to the
statute of frauds, we may consider the language of the entire document.
Wadsworth v. Moe, 53 Wis. 2d 620, 624, 193 N.W.2d 645 (1972). Here, the
Agreement provides that Kuenzi promises that “[Kiersten] will receive title to
[Kuenzi’s] residence in the Village of Clyman upon his death.” A separate portion
of the Agreement clarifies that “[Kuenzi’s] residence” is located at “719 Church
Street, in the Village of Clyman, Dodge County, Wisconsin.” The street address
of Kuenzi’s house is sufficient to identify the land with reasonable certainty. See
Seelen v. Arnette, 584 B.R. 304, 310 (Bankr. W.D. Wis. 2018) (a street address
may identify land with reasonable certainty).

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¶33 Second, the Agreement was “delivered” pursuant to WIS. STAT.
§ 706.02(1)(g). The Estate’s only argument regarding this requirement is that
Kuenzi’s house was never delivered to Kiersten because there was no quit claim
deed prepared reserving a life estate in the house for Kuenzi or a transfer on death
deed prepared. This argument fails because the statute of frauds requires that the
“conveyance”—i.e., the written instrument—be delivered, not the property itself.
Sec. 706.02(1)(g). There is no dispute that the Agreement was delivered to
Kiersten.

¶34 Third, the time limit under WIS. STAT. § 706.02(1)(g) does not apply
here. Under this statute, if the grantor’s death is “a parol limitation or condition”
concerning the delivery of the conveyance, then that “limitation or condition”
applies only if it arises in a lawsuit that is filed prior to the grantor’s death.
Sec. 706.02(1)(g).7 The Estate argues that Kiersten’s claim for title to Kuenzi’s
house is barred under this statute because Kiersten filed his claim after Kuenzi’s
death. This argument fails because the statute of frauds pertains only to the
validity or enforceability of the parties’ Agreement in the first place. See
Prezioso, 358 Wis. 2d 714, ¶22. Here, Kuenzi’s death was not a “parol” limitation
or condition, i.e., an “oral” or “unwritten” limitation or condition concerning the
delivery of the Agreement. Parol, BLACK’S LAW DICTIONARY (12th ed. 2024).

7
In relevant part, WIS. STAT. § 706.02(1)(g) provides:

[A] conveyance delivered upon a parol limitation or condition
shall be subject thereto only if the issue arises in an action or
proceeding commenced within 5 years following the date of such
conditional delivery; however, when death or survival of a
grantor is made such a limiting or conditioning circumstance, the
conveyance shall be subject thereto only if the issue arises in an
action or proceeding commenced within such 5-year period and
commenced prior to such death.

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No. 2024AP884

Instead, the condition that Kiersten would receive title to Kuenzi’s house on
Kuenzi’s death was contained in the text of the Agreement. Because Kuenzi’s
death was not a “parol” limitation or condition concerning the delivery of the
Agreement, the time limit in § 706.02(1)(g) does not apply to Kiersten’s claim.

CONCLUSION

¶35 For the foregoing reasons, we deny Kiersten’s request that summary
judgment be granted in his favor, reverse the circuit court’s order granting
summary judgment in favor of the Estate, and remand for further proceedings
consistent with this opinion.

By the Court.—Order reversed and cause remanded for further
proceedings.

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

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