Glen M. Groeschel v. Daniel F. Groeschel

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.
December 21, 2022
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2021AP234 Cir. Ct. No. 2017CV437

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

GLEN M. GROESCHEL AND NEIL D. GROESCHEL,

PLAINTIFFS-RESPONDENTS,

V.

DANIEL F. GROESCHEL, GLORIA GROESCHEL, GROESCHEL COMPANY,
INC. AND GROESCHEL INVESTMENTS, LLC,

DEFENDANTS,

CHERIE A. BUSS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Fond du Lac
County: ROBERT J. WIRTZ, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, JJ.
No. 2021AP234

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. Cherie Buss appeals from a judgment ordering the
sale at public auction of four real estate parcels owned by various interrelated
parties. Buss argues that the correct remedy was to physically partition the
parcels. However, Buss did not seek this remedy in the circuit court, and this
argument is raised for the first time on appeal. For this reason, we do not reach
the merits of this and related arguments. We affirm because the circuit court
properly exercised its discretion when it ordered the four parcels sold at public
auction.

¶2 We discuss only the facts necessary to our decision. The parties’
disputes arise in connection with several real estate parcels. Glen and Neil
Groeschel (Groeschel) filed a complaint seeking partition and judicial sale of
multiple properties owned as tenants in common with Buss and others. With
regard to parcels 4, 6, 7 and 12 (“the parcels”), the only parcels subject to this
appeal, Groeschel sought a sale via public auction. In her proposed findings of
fact and conclusions of law, Buss argued for using the fair market values for the
parcels as established by her appraiser, Raymond Christ, to determine the amounts
owed to Groeschel for their ownership interest.1 After a court trial, the circuit
court decided that the parcels would be sold at public auction with the assistance

1
On cross-examination Christ agreed that “the way to determine what the property is
actually worth in the market is to put it up for sale and see who will actually pay whatever price a
purchaser is willing to pay.”

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of a real estate broker, and the proceeds would be distributed as directed by the
court.2 Buss appeals.

¶3 “Partition is an equitable proceeding.” Schmit v. Klumpyan, 2003
WI App 107, ¶22, 264 Wis. 2d 414, 663 N.W.2d 331. “[T]he trial court is not
restricted to the statutory remedies—partition along undisputed lines or partition
by sheriff’s sale—but it is within the discretion of the trial court to order any
remedy, including a private sale by the parties, that is equitable.” Id., ¶22.
Among the remedies are physical partition of the property and sale of the property
with a division of the proceeds. Prince Corp. v. Vandenberg, 2016 WI 49, ¶44,
369 Wis. 2d 387, 882 N.W.2d 371.

¶4 On appeal, Buss objects to the sale of the parcels at public auction.
She argues that the circuit court erred in ordering the auction sale without also
finding that the parties would be prejudiced by physical partition of the parcels.
We conclude that the dispositive flaw in Buss’s argument is that she never asked
the circuit court to physically partition the parcels. Rather, she asked the circuit
court to determine fair market value via the appraisal she submitted. Because
Buss alleges circuit court error in connection with an argument she did not make
to the circuit court, we do not consider this claim. Segall v. Hurwitz, 114 Wis. 2d
471, 489, 339 N.W.2d 333 (Ct. App. 1983) (we do not consider claims raised for the
first time on appeal).

¶5 Buss next argues that the circuit court did not make what she claims
is a required finding of prejudice before it ordered the auction sale. As we have

2
There is no dispute on appeal as to how the proceeds are to be distributed.

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held, Buss did not seek physical partition of the parcels in the circuit court.
Furthermore, she does not point this court to that portion of the circuit court record
where she raised the legal standard of prejudice in connection with disposition of
the parcels. We will not sift the record for facts that might support Buss’s
contentions. Keplin v. Hardware Mut. Casualty Co., 24 Wis. 2d 319, 324, 129
N.W.2d 321 (1964).

¶6 In support of her argument that a finding of prejudice was required
in order to have a public auction, Buss mistakenly relies upon Boltz v. Boltz, 133
Wis. 2d 278, 395 N.W.2d 605 (Ct. App. 1986). Boltz is distinguishable. In Boltz,
the question of physical partition was before the circuit court. Id. at 281. In this
appeal, the question of physical partition of the parcels was not before the circuit
court.3 We reject Buss’s attempt to assign error to the circuit court when she did
not make the very claim she now argues that the circuit court missed. See State v.
Ledger, 175 Wis. 2d 116, 135, 499 N.W.2d 198 (Ct. App. 1993) (“a party must raise
and argue an issue with some prominence to allow the trial court to address the issue
and make a ruling”).

¶7 Having concluded that Buss’s physical partition and prejudice
arguments are not before this court on appeal, we turn to whether the circuit court
misused its discretion when it ordered a public auction of the parcels. As stated,
the circuit court had discretion “to fashion a remedy that meets the needs of the
specific case. Equity does not limit the trial court to the statutory partition

3
Because we do not reach the merits of Buss’s physical partition and prejudice
arguments, we do not delve into the law relating to these matters.

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No. 2021AP234

remedies found in WIS. STAT. § 842.02(2).” Schmit, 264 Wis. 2d 414, ¶26
(citation omitted).

¶8 “We will not find an erroneous exercise of discretion if there is a
rational basis for a circuit court’s decision.” Martindale v. Ripp, 2001 WI 113,
¶29, 246 Wis. 2d 67, 629 N.W.2d 698. Groeschel requested a public auction, a
remedy available to the circuit court. WIS. STAT. § 842.17(1) (2019-20).4 Buss’s
appraiser agreed on cross-examination that “the way to determine what the
property is actually worth in the market is to put it up for sale and see who will
actually pay whatever price a purchaser is willing to pay.” The court found that
the parties were unable to work together to resolve their disputes regarding the
parcels or agree on valuation, and the parties had been hindering each other’s
rights in the parcels. Based upon the record before this court, we conclude that the
circuit court had a rational basis for ordering the parcels sold at public auction and
rejecting Buss’s request for a private sale based upon her appraiser’s report.

¶9 Finally, we observe that the circuit court appropriately recognized
that at a public auction, any of the parties to this litigation could purchase any of
the parcels.5

4
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
5
We have considered all of the arguments in the briefs. To the extent we have not
addressed an argument raised on appeal, the argument is deemed rejected. See State v. Waste
Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978) (“An appellate court is not a
performing bear, required to dance to each and every tune played on an appeal.”).

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By the Court.—Judgment affirmed.

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

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