James Cobb v. Gary A. King

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.
May 11, 2021
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. 2020AP925 Cir. Ct. No. 2018CV139

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

JAMES COBB AND JUDITH COBB,

PLAINTIFFS-APPELLANTS-CROSS-RESPONDENTS,

V.

GARY A. KING,

DEFENDANT-RESPONDENT-CROSS-APPELLANT.

APPEAL and CROSS-APPEAL from a judgment of the circuit court
for Oconto County: JAY N. CONLEY, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, 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. This appeal and cross-appeal involve a dispute
between two adjoining landowners—James and Judith Cobb on one side, and
No. 2020AP925

Gary King on the other. The Cobbs appeal the circuit court’s grant of summary
judgment to King enforcing his use of an ingress and egress easement over the
Cobbs’ property. King cross-appeals the court’s denial, without an evidentiary
hearing, of his motion to enforce a second mediation agreement between the
parties.

¶2 We conclude the circuit court properly determined that the easement
conveyed a freely transferable interest to King that ran with the land and was not
personal to King’s predecessors in title. We further conclude the court correctly
determined that the second mediation agreement was unenforceable because it
lacked material terms and was therefore too indefinite to be enforced. Finally, we
conclude the court did not err in denying King’s request to conduct an evidentiary
hearing regarding the terms of the second mediation agreement because no
extrinsic evidence could be used to supplement the agreement. We therefore
affirm in all respects.

BACKGROUND

¶3 In May 1969, Herbert and Jean Hessil, King’s predecessors in title,
acquired their property as joint tenants. In October 1978, Barbara Rierdon and
others (collectively “Rierdon”), predecessors in title to the Cobbs, granted a
roadway easement over their property to the Hessils. The easement was recorded
with the Oconto County Register of Deeds. As relevant here, the easement
provides that the grantors—i.e., Rierdon—“grant, convey, give over and allow to
HERBERT HESSIL and JEAN HESSIL, his wife, a right of ingress and egress for the

purpose of vehicular traffic only to the following described property,” which,
again, is part of the present Cobb property.

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¶4 In October 1981, Rierdon sold the real estate by land contract to the
Cobbs. The land contract’s legal description of the sold property included
language that the sale was “SUBJECT to an easement ….” In August 1987, Rierdon
conveyed the property to the Cobbs by a warranty deed, which again indicated that
the property was subject to an easement. The Hessils retained ownership of the
adjoining parcel.

¶5 In May 2009, Wayne Hessil and others conveyed the Hessil property
to King and Melissa Hermes, as tenants in common, with no mention of the
easement. In September 2011, Hermes executed a quitclaim deed to King, again
with no mention of the easement.

¶6 The Cobbs sued King, seeking a declaration that the easement
benefitting King’s property was personal to the Hessils as King’s predecessors in
title and that King had no rights to the easement, and that King be enjoined from
using the easement. King filed an answer and sought a judgment declaring that
the easement ran with the land and was freely transferable.

¶7 The parties mediated their dispute on November 27, 2018. The
mediation resulted in a signed agreement (“Mediation Agreement 1”) under which
King agreed to sell his property to the Cobbs. Problems arose, however, and the
terms of Mediation Agreement 1 were not fulfilled as several material terms were
not agreed upon.

¶8 King then filed a motion for summary judgment to enforce his right
to use the easement. Thereafter, the Cobbs filed a motion to enforce Mediation
Agreement 1 by requiring King to sell his property to them. King objected to the
enforcement of Mediation Agreement 1, arguing that it was indefinite because the
basic terms of the proposed real estate transaction were uncertain.

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¶9 The circuit court held a hearing and ordered the parties to participate
in a second mediation, which resulted in a second mediation agreement
(“Mediation Agreement 2”). That agreement provided that: (1) the parties would
have an “‘L’ shaped parcel that is adjacent to Lot 1 of CSM 199 (i.e., the ‘L’
shaped parcel is located northeast of Lot 1 of CSM 199)” surveyed; (2) the Cobbs
would quitclaim to King the surveyed parcel; and (3) both parties would thereafter
release all easement rights in their respective parcels. King agreed to pay the
Cobbs $10,250 upon receipt of the quitclaim deed and to dismiss this lawsuit.
King paid the $10,250 into his attorney’s trust account consistent with the terms of
Mediation Agreement 2.

¶10 Mediation Agreement 2 further provided: “The parties agree and
acknowledge that additional documents subsequent to this Agreement will need to
be drafted by counsel and agree to execute said documents after review and
approval by their respective counsel.” Meanwhile, the Cobbs’ attorney held a
quitclaim deed signed by the Cobbs, but it contained no legal description.
Subsequently, the terms of Mediation Agreement 2 were not fulfilled due to the
Cobbs’ refusal to abide by the terms of that agreement.

¶11 King then moved the circuit court to enforce Mediation
Agreement 2. The court scheduled a hearing at which the Cobbs appeared
one-half hour late. At the hearing, the court granted the request of the Cobbs’
attorney to withdraw as their counsel. The court further granted a default
judgment against the Cobbs and ordered that Mediation Agreement 2 be enforced.

¶12 The Cobbs, through their new attorney, filed a motion to vacate the
default judgment. Following a hearing, the circuit court granted the Cobbs’
motion to reopen the case. The court also determined that Mediation Agreement 2

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was unenforceable because the legal description of the “L” shaped parcel was
reasonably in dispute. In support, the court cited Paul R. Ponfil Trust v.
Charmoli Holdings, LLC, 2019 WI App 56, 389 Wis. 2d 88, 935 N.W.2d 308,
and it suggested that Mediation Agreement 2 constituted an “agreement to agree”
both because it contained no meaningful description of the property and because it
required a survey and further documents to implement the agreement.

¶13 King submitted a letter to the circuit court requesting, first,
reconsideration of its decision declaring Mediation Agreement 2 invalid. King
also requested an evidentiary hearing on the legal description of the “L” shaped
parcel, arguing that Ponfil Trust was distinguishable from the present case. The
court issued a written decision and order that, in relevant part, granted the Cobbs’
motion to vacate the default judgment, denied the Cobbs’ motion to enforce
Mediation Agreement 1, denied King’s motion to enforce Mediation Agreement 2,
and granted King’s motion for summary judgment. As relevant here, the court
found that “both sides acted, in bad faith, in the mediation attempts,” and that
Mediation Agreement 2 was unenforceable due to a lack of material terms. The
court specifically noted that Mediation Agreement 2 referenced, in the court’s
words, “an L shaped parcel which has not been surveyed and which is susceptible
to different interpretations as demonstrated by [the Cobbs’] counsel in his
Affidavit.”

¶14 As to King’s summary judgment motion, the circuit court concluded
that, contrary to the Cobbs’ argument, under WIS. STAT. § 706.10(3) (2019-20),1

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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words of inheritance, such as “heirs and assigns,” were not necessary to conclude
that King’s easement ran with the land and was not personal to King’s
predecessors in title, the Hessils. The court further concluded that the Hessils
conveyed the easement to King because that easement neither expressly nor by
implication suggested otherwise, and the easement was appurtenant to the property
as it served the dominant estate. The Cobbs now appeal the grant of summary
judgment in favor of King, and King cross-appeals the denial of his motion to
enforce Mediation Agreement 2.

DISCUSSION

I. The Cobbs’ appeal of summary judgment

¶15 This court reviews a summary judgment decision de novo, using the
same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264, ¶6,
306 Wis. 2d 513, 743 N.W.2d 843. Summary judgment is appropriate if there is
no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. WIS. STAT. § 802.08(2).

¶16 The Cobbs argue that the circuit court erred in three ways by
granting King’s motion for summary judgment. Each of the Cobbs’ arguments is
premised on the notion that the court misapplied WIS. STAT. § 706.10(3), which
states: “In conveyances of lands words of inheritance shall not be necessary to
create or convey a fee, and every conveyance shall pass all the estate or interest of
the grantor unless a different intent shall appear expressly or by necessary
implication in the terms of such conveyance.”

¶17 First, the Cobbs argue the circuit court erred in determining that the
language of WIS. STAT. § 706.10(3), which pertains to conveyances of land,

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applies to easements. Second, the Cobbs contend that the court erred in its
interpretation of the second clause of that statute to mean that “because the deed
King received for the Hessil land did not negate the notion that the easement was
personal to the Hessils, the easement somehow passed to their assigns.” Third and
finally, the Cobbs contend that even if § 706.10(3) applied, it still contained the
“express intent to limit the grant that … § 706.10(3) requires” because the original
easement specifically referred to the Hessils and no one else.

¶18 As to the first issue, King correctly argues that Borek Cranberry
Marsh, Inc. v. Jackson County, 2010 WI 95, 328 Wis. 2d 613, 785 N.W.2d 615,
controls our decision of whether WIS. STAT. § 706.10(3) applies to easements. In
Borek, Carl Nemitz purchased an easement from Jackson County granting him
water flowage and sand removal rights to county land that was adjacent to his
property for the purpose of cranberry cultivation of his marsh. Borek, 328 Wis. 2d
613, ¶4. The water flowage rights were granted to “Carl Nemitz, his heirs, and
assigns,” while the sand removal rights were granted to “the Grantee,” whom the
deed identified as “Carl Nemitz.” Id., ¶¶5, 30. Nemitz later transferred his land,
along with his flowage and sand removal rights, to the Boreks. Id., ¶6. The
Boreks later transferred the land and their interests in the flowage and sand
removal rights to BCM. Id. On appeal, the supreme court held that the sand
removal rights conveyed in the easement between the county and Nemitz were not
personal to Nemitz, and thus were fully transferable to the Boreks and then to
BCM. Id., ¶13.

¶19 In addressing that issue, the Borek court expressly held that WIS.
STAT. § 706.10(3) applies to easements. After reviewing the statute’s history, the
court stated:

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We were unable to find any evidence, textual or
extra-textual, that [various revisions to the statute] reflected
a legislative intent to change the meaning of the statute.
Rather, the changes appear merely stylistic. For example,
the legislature changed the phrase, “every grant of lands or
any interest therein,” to simply “conveyance.” A
“conveyance” is defined as a written instrument evidencing
a transaction governed by Chapter 706, which would
include both a grant of land and the conveyance of an
interest in land. See § 706.01(3).

Unlike the dissent, we find the statute to be sufficiently
clear that it applies to easements. See Dissent, ¶¶57-63.
We see clues in the second clause of the statute, which
states, “every conveyance shall pass all the estate or interest
of the grantor.” The conjunctive “or” means that some
conveyances contemplated by the statute will include an
estate, while some may include only interests in the land.
The pre-1969 version of the statute further makes clear that
the current statute’s use of “conveyance” is meant to be
shorthand for “every grant of lands or any interest therein.”
And if there were any doubt, courts in other states with
similar statutes, including the New York statute upon
which ours was based, have construed this language to
apply to easements as well as conveyances of land.

Borek, 328 Wis. 2d 613, ¶¶20-21.

¶20 The Borek decision made clear that WIS. STAT. § 706.10(3) applies
to easements, thus precluding the Cobbs’ argument that the statute does not apply
in this case. See id., ¶¶21-22. We are bound by this controlling precedent.

¶21 The Cobbs next maintain that “[t]ransferring an easement to the
Hessils alone, without words extending it to others, means the easement is
personal.” This argument is also precluded by Borek. The Borek court addressed
the county’s argument that the difference in language between the grant of the
water flowage and sand removal rights created a necessary implication that the
sand removal rights were nontransferable. Id., ¶28. The county maintained that
the omission of the words “heirs and assigns” in the sand removal grant—in

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contrast to the inclusion of that language in the water flowage grant—constituted
express language, or at least gave rise to a necessary implication, that the original
parties intended the sand removal rights to be personal to Nemitz and
nontransferable. Id., ¶¶28, 33. The Borek court rejected this argument,
concluding that under WIS. STAT. § 706.10(3), the easement conveyed a fully
transferable interest in both the water flowage and sand removal rights. Id., ¶33.

¶22 Third, the Cobbs contend that even if the circuit court correctly
applied WIS. STAT. § 706.10(3), the fact that the easement names the Hessils, and
no one else, demonstrates an express intent consistent with § 706.10(3) that the
easement was personal and not transferable to King. We disagree. Borek
considered the grant of water flowage rights to “Carl Nemitz, his heirs, and
assigns” and the grant of sand removal rights to “the Grantee” to be identical, and
then held that each grant conveyed a freely transferable interest, which was later
acquired by the Boreks. Borek, 328 Wis. 2d 613, ¶30. The easement here, as in
Borek, does not contain an express statement or a necessary implication that only
a limited, non-transferable right was conveyed, as would be required of a
non-transferable easement. Id., ¶37. The court therefore correctly determined that
the easement conveyed a fully transferable interest to King.

¶23 Finally, the Cobbs argue that Borek is distinguishable because that
case involved sand removal rights and a profit a prendre,2 not an easement.
Again, we disagree. There is no meaningful distinction between profits and

2
A profit a prendre is defined as “a right, privilege, or interest that allows one to use the
soil or products (as fish and game) of another’s property.” Profit a prendre, MERRIAM-WEBSTER
DICTIONARY, https://www.merriam-webster.com/legal/profit%20a%20prendre (last visited
May 7, 2021).

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easements. See Figliuzzi v. Carcajou Shooting Club, 184 Wis. 2d 572, 582-85,
516 N.W.2d 410 (1994). Specifically, Figliuzzi held that there is “no distinction
between easements and profits relevant to recording the property interest.” Id. at
583. We therefore reject the Cobbs’ argument that Borek is distinguishable.
Instead, for the reasons explained above, Borek is controlling and compels a
conclusion that the circuit court properly granted King summary judgment.

II. King’s cross-appeal regarding Mediation Agreement 2

A. Enforcement of Mediation Agreement 2

¶24 In his cross-appeal, King first argues that the circuit court erred by
failing to enforce Mediation Agreement 2. King contends that the court erred in
concluding that Mediation Agreement 2 was merely an “agreement to agree,” as in
Ponfil Trust, because the parties clearly had an agreement in which all parts were
confirmed and definite. King further contends that the “term ‘L’ shaped parcel”
was not so uncertain as to render Mediation Agreement 2 unenforceable. If it is
clear that the parties intended to agree, King argues that we “should not frustrate
the efforts of the parties and attach a ‘sufficiently definite meaning’ to the express
terms used in [Mediation Agreement 2].

¶25 We reject King’s argument that the circuit court erred by failing to
enforce Mediation Agreement 2, as its decision was plainly correct under Ponfil
Trust. In Ponfil Trust, the parties’ mediation agreement required the transfer of
real estate in exchange for money and also required that the parties “agree[d] to
sign a separate substantive agreement covering such things as liability &
indemnity in usual form.” Ponfil Tr., 389 Wis. 2d 88, ¶¶3, 27. We held that the
terms in the agreement “including liability and indemnity associated with the
transfer of property … were to be agreed upon with a separate substantive

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agreement. These terms were never agreed to in writing, rendering this provision
incapable of enforcement for lack of definiteness.” Id., ¶27. Elsewhere, we have
stated that if the parties “understand that the execution of a formal document shall
be a prerequisite to their being bound[,] there is no contract until the document is
executed.” American Nat’l Prop. & Cas. Co. v. Nersesian, 2004 WI App 215,
¶19, 277 Wis. 2d 430, 689 N.W.2d 922 (citation omitted).

¶26 Here, the parties did not clearly indicate in Mediation Agreement 2
exactly where the property to be surveyed and deeded was located, nor the size of
the property. In fact, the Cobbs’ attorney submitted an affidavit using King’s map
to depict a variety of possible locations for an “L” shaped configuration, which
demonstrated why describing the property as an “L” shaped parcel was too
indefinite to enforce the agreement. How a surveyor would determine what is to
be deeded is not specified. While it is clear what Mediation Agreement 2
means—and it is therefore not ambiguous—its terms regarding the size and
location of the “L” shaped property are not defined, and therefore they are
indefinite. The deal cannot be consummated based upon that document alone.

¶27 Ambiguity arises when contractual language is reasonably
susceptible to more than one meaning. MS Real Estate Holdings, LLC v.
Donald P. Fox Fam. Tr., 2015 WI 49, ¶37, 362 Wis. 2d 258, 864 N.W.2d 83. In
contrast, contractual terms are indefinite when they are “so vague or indefinite that
that agreement is not ‘definite as to the parties’ basic commitments and
obligations,’ thus preventing the formation of a contract.” Ehlinger v. Hauser,
2008 WI App 123, ¶28, 313 Wis. 2d 718, 758 N.W.2d 476, aff’d on other
grounds, 2010 WI 54, 325 Wis. 2d 287, 785 N.W.2d 328. Here, Mediation
Agreement 2 is indefinite, but not ambiguous. King’s argument to the contrary is
incorrect, as we explain in greater detail below.

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¶28 Additionally, by declaring the survey “necessary to complete the
transaction,” the parties recognized in Mediation Agreement 2 that a survey was
essential. Our supreme court has held that the fact “that a survey was deemed
necessary by both parties to the contract indicates strongly that the area involved
was not sufficiently definite to form the basis of an oral contract which could be
enforced by specific performance.” Fontaine v. Riley, 189 Wis. 226, 236, 207
N.W. 256 (1926). As in Fontaine, the necessary survey to be completed as part of
Mediation Agreement 2 indicates that the area involved is not sufficiently definite.
The circuit court therefore correctly concluded that the agreement was
unenforceable.

B. Hearing on the enforcement of Mediation Agreement 2

¶29 King next contends that because the circuit court questioned the
meaning of the “L” shaped parcel used in Mediation Agreement 2, it erred by
construing that term as indefinite rather than ambiguous. As evidenced by our
analysis above, see supra ¶¶25-27, a contract can be ambiguous without being
indefinite, and if it is ambiguous—i.e., fairly susceptible to more than one
construction—the court may then look to extrinsic evidence to help construe its
meaning. Ehlinger v. Hauser, 2010 WI 54, ¶56, 325 Wis. 2d 287, 785 N.W.2d
328. King argues that the court mistakenly found the agreement was indefinite
merely because the “L” shaped parcel had “not been surveyed” and “is susceptible
to different interpretations as demonstrated by [the Cobbs’] counsel in his
Affidavit.”

¶30 King contends extrinsic evidence shows that the parties knew where
the “L” shaped parcel would be located. He asserts the Cobbs acknowledged they
were aware that the parcel they were selling included waterfront property because

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they expressed concern that the property was undervalued. King argues that this
acknowledgment suggests the Cobbs understood that “the easternmost portion of
the ‘L’ shaped parcel is waterfront property.” King also contends it is “apparent”
that he needs access to a public roadway to avoid landlocking his property, which
suggests that the northernmost part of the “L” was to connect with the public road.
Based on this extrinsic evidence already in the record, King asserts the circuit
court should have held an evidentiary hearing to clarify the exact location that the
parties intended.

¶31 King’s argument in this regard misses the dispositive legal point. As
the Cobbs correctly note, a mediation agreement may not be orally supplemented.
See WIS. STAT. § 807.05; see also Affordable Erecting, Inc. v. Neosho Trompler,
Inc., 2005 WI App 189, ¶¶13, 16, 286 Wis. 2d 403, 703 N.W.2d 737 (“Because …
§ 807.05 does not provide for a party to subscribe to an agreement through verbal
assurances or general conduct, the mediated agreement … is deficient.”). If the
meaning of the terms in Mediation Agreement 2 were ambiguous, a hearing may
help to provide extrinsic evidence of the parties’ intent. As discussed above,
however, Mediation Agreement 2 is indefinite, but not ambiguous. Mediation
Agreement 2 is not ambiguous because it clearly shows the parties intended to
deed King the “L” shaped parcel. It is indefinite, however, because it did not
define the “L” shaped parcel’s size and location. That deficiency could not be
remedied with oral testimony.

¶32 Additionally, King argues the circuit court erred by declining to
enforce Mediation Agreement 2 by relying on an affidavit attached to a reply brief
in support of the Cobbs’ motion to vacate. King does not show what, if any, new
information was provided in that affidavit or how it affected the court’s decision.

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We need not address undeveloped arguments. See State v. Pettit, 171 Wis. 2d
627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

¶33 Finally, King argues that the circuit court did not properly exercise
its discretion by allowing the Cobbs to avoid the terms of the settlement
agreement. A circuit court is given discretion on whether to grant relief from a
stipulation pursuant to WIS. STAT. § 806.07, and Mediation Agreement 2 was
essentially a stipulation. See Phone Partners Ltd. P’ship v. C.F. Commc’ns
Corp., 196 Wis. 2d 702, 709, 542 N.W.2d 159 (Ct. App. 1995). King contends
that the court erroneously exercised its discretion in relying upon the parties’
unsubstantiated acts of bad faith regarding the agreement as a basis for the court to
avoid enforcing the agreement. Without more, King argues this reliance was not a
proper exercise of discretion. We disagree with King’s contention, as he fails to
show how the court’s finding regarding bad faith was clearly erroneous. Absent
such a showing, the court properly exercised its discretion by refusing to enforce
Mediation Agreement 2’s terms.

By the Court.—Judgment affirmed.

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

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