Kirk Lewis v. Julie Bauer Burkholder

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.
July 24, 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. 2024AP1821 Cir. Ct. No. 2023SC735

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

KIRK LEWIS,

PLAINTIFF-APPELLANT,

V.

JULIE BAUER BURKHOLDER AND JASON BURKHOLDER,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Columbia County:
TODD J. HEPLER, Judge. Reversed and cause remanded for further
proceedings.

¶1 TAYLOR, J.1 Kirk Lewis (“Kirk”), as the personal representative
of the Estate of Thomas Lewis, appeals a circuit court order dismissing Kirk’s
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(a) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version.
No. 2024AP1821

complaint for eviction and damages against Julie Burkholder and Jason
Burkholder (collectively, “the Burkholders”) on the grounds that no tenancy
existed and no landlord-tenant relationship was established between the parties to
permit eviction pursuant to WIS. STAT. § 799.40(1).2 I conclude that the
undisputed facts establish that the Burkholders were tenants at will. Accordingly,
I reverse the decision of the circuit court and remand for further proceedings
consistent with this opinion.3

BACKGROUND

¶2 The parties do not dispute the following material facts, which in part
were established by uncontroverted evidence admitted in the eviction trial.4 In

2
Because the parties share surnames, for clarity and ease of reading, I use first names
when referring to the parties individually.
3
This court has addressed other aspects of this case in two previous appeals. See Lewis
v. Burkholder, No. 2023AP2244, unpublished slip op. (WI App Apr. 22, 2024) (reversing circuit
court’s judgment of eviction and remanding for a trial and the taking of evidence); see also Lewis
v. Burkholder, No. 2024AP677, unpublished slip op. (WI App July 19, 2024) (summary reversal
of a judgment ordering that the Burkholders pay Kirk’s fees and costs).
4
Despite the undisputed material facts, the Burkholders assert in their appellate response
brief that they contest Kirk’s statement of facts in his appellate briefing because of the various
page numbers that appear on each page of Kirk’s appellate appendix. However, as Kirk notes in
his reply brief, appellate parties are required by WIS. STAT. § 809.19(1)(d) to include only
citations to the record in the statement of facts, with which Kirk complied. Accordingly, I reject
all assertions made by the Burkholders concerning Kirk’s citation method.

The Burkholders’ confusion over the multiple page numbers that appear on each page of
the parties’ appendices may be the result of several factors which I address here. First, when
circuit court documents are efiled in the appellate record, an appellate header with the date and
page number is added to the top of each page, which frequently differs from a document’s
original page number in the circuit court record.

(continued)

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January 2019, the Burkholders entered into a written, one-year residential lease
agreement with James Ness for a property located at 202 N. Main Street, in Lodi,
Wisconsin (“the property”). Pursuant to the lease, the Burkholders rented the
property from February 1, 2019, until January 31, 2020, and made monthly rent
payments to Ness in the amount of $1,100. After the lease expired on January 31,
2020, the Burkholders continued to reside in the property and continued to make
the same monthly rent payments.

¶3 In August 2020, following Ness’s death and in preparation for
selling the property, Ness’s estate delivered an eviction notice to the Burkholders.
In September 2020, Thomas Lewis (“Thomas”) purchased the property. Thomas
was the long-term romantic partner of Julie Burkholder’s mother.5 Julie obtained
Thomas’s durable power of attorney and facilitated the purchase of the property.
The purchase agreement states that the “seller will rescind [the] 30 day notice to
evict the tenants, which was given (hand delivered) to tenants [on] Aug 26, 2020”
and that “[Thomas] acknowledges receipt of current lease that has expired and is

Second, the page numbers in each party’s appendix and in their briefing also differ from
the efile appellate page number inserted in the header of each page because both parties here fail
to comply with WIS. STAT. RULE 809.19(8)(bm), which addresses the pagination of appellate
briefs. See RULE 809.19(8)(bm) (providing that, when paginating briefs, parties should use
“Arabic numerals with sequential numbering starting at ‘1’ on the cover”). This rule has been
amended, see S. CT. ORDER 20-07, 2021 WI 37, 397 Wis. 2d xiii (eff. July 1, 2021), and the
reason for the amendment is that briefs are now electronically filed in PDF format, and are
electronically stamped with page numbers when they are accepted for efiling. As our supreme
court explained when it amended the rule, the new pagination requirements ensure that the
numbers on each page of a brief “will match … the page header applied by the eFiling system,
avoiding the confusion of having two different page numbers” on every page of a brief. Supreme
Court Note, 2021, RULE 809.19.
5
Julie is referred to throughout the appellate record as “Jullie,” “Julie A. Bauer,” and
“Julie A. Burkholder.”

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on a month to month.”6 The expired lease stated that in the event of a voluntary or
involuntary transfer of ownership of the premises, the “Landlord’s obligations
under this lease are expressly released by Tenant. The new owner of the
[property] shall be solely responsible for [the] Landlord’s obligations under this
Contract.”

¶4 After Thomas purchased the property, the Burkholders continued to
live in the property with Thomas’s permission, but did not make any rent
payments. No lease agreement was ever entered into between Thomas and the
Burkholders.

¶5 Thomas died in July 2021. Thomas’s adult son, Kirk, was appointed
as the personal representative of Thomas’s estate (“the Estate”), and it was in this
capacity that Kirk acted at all pertinent times here. Thomas’s will devised the
property to Julie, subject to any and all liens, mortgages, and encumbrances.
During the administration of the Estate, title to the property remained in Thomas’s
name because Kirk was waiting for Julie to satisfy or refinance the outstanding
mortgage on the property. When Julie did not make the mortgage payments on the
property, the mortgage lender commenced a foreclosure action against the Estate
in the Columbia County Circuit Court, which the Estate settled by making the
outstanding payments.7 In March 2023, Kirk commenced a separate legal action
6
It appears that after the expiration of the written lease on January 31, 2020, the
Burkholders became hold-over residential tenants pursuant to WIS. STAT. § 704.25(2)(b), which
states: “If premises are leased … for any period primarily for private residential purposes, and the
tenant holds over after expiration of the lease, the landlord may elect to hold the tenant on a
month-to-month basis.” With some exceptions not applicable here, “[a] periodic tenancy arising
under this section is upon the same terms and conditions as those of the original lease.” See
§ 704.25(3).
7
See Planet Home Lending LLC v. The Estate of Thomas J. Lewis, Columbia County
Case No. 2022CV220.

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in the Columbia County Circuit Court against Julie for a judgment, in pertinent
part, that deemed the devise of the property to Julie a failed transfer due to her
inability to satisfy or refinance the outstanding mortgage on the property. On
July 14, 2023, the court entered a default judgment in that action, concluding that
the devise of the property to Julie had been a failed transfer.8 The court authorized
Kirk to sell the property and include the net proceeds of the sale as residue of the
Estate to be distributed pursuant to the terms of the will.

¶6 On August 14, 2023, and pursuant to WIS. STAT. § 704.19, Kirk
served Julie with a 28-day notice to terminate the tenancy by September 29, 2023.9
The Burkholders did not vacate the property by that date. On October 6, 2023,
Kirk commenced the eviction action to remove the Burkholders from the property
and sought damages. In their answer to the complaint, the Burkholders alleged
that no tenancy was created between them and Thomas either before or after his
death. Following the eviction trial,10 the circuit court concluded that because the
Burkholders never paid rent to Thomas, no tenancy existed and no landlord-tenant

8
See Lewis v. Burkholder, Columbia County Case No. 2023CV70. I take judicial notice
that, according to the Wisconsin Consolidated Court Automation Programs (CCAP), which is the
case management system provided by the Wisconsin Circuit Court Access program that provides
public access online to reports of activity in Wisconsin circuit courts, the circuit court denied two
of Julie’s postjudgment motions for relief from the default judgment. See WIS. STAT. § 902.01;
see also Kirk v. Credit Acceptance Corp., 2013 WI App 32, ¶5 n.1, 346 Wis. 2d 635, 829
N.W.2d 522 (This court may take judicial notice of CCAP records).
9
WISCONSIN STAT. § 704.19 provides that periodic tenancies and tenancies at will can
be terminated only by either the landlord or the tenant giving the other party written notice, which
requires generally that at least 28 days’ notice of termination be provided. See § 704.19 (1)-(3).
10
In November 2023, the circuit court issued a decision granting the eviction against the
Burkholders. The Burkholders appealed on the ground that the court did not conduct a trial and
that no evidence was taken before the court granted the eviction. We reversed the judgment of
eviction on that basis and remanded to the circuit court for trial. See Lewis v. Burkholder,
No. 2023AP2244, unpublished slip op. (WI App Apr. 22, 2024).

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No. 2024AP1821

relationship was established. The court dismissed the complaint for “fail[ing] to
state a claim for eviction” under WIS. STAT. § 799.40(1).11 Kirk appeals.

DISCUSSION

¶7 On appeal, Kirk argues, in pertinent part, that the Burkholders were
tenants at will. I agree. Accordingly, I reverse and remand.

I. Applicable Legal Principles & The Standard of Review

¶8 Pursuant to WIS. STAT. § 799.40(1), “[a] civil action of eviction may
be commenced by a person entitled to the possession of real property, or by that
person’s agent authorized in writing, to remove therefrom any person who is not
entitled to either the possession or occupancy of such real property.” An eviction
action under this statute may not be brought against a “non-tenant.” See State v.
Whitrock, 161 Wis. 2d 960, 975, 468 N.W.2d 696 (1991) (eviction procedures of
§ 799.40 “do not apply” when a property owner seeks to remove a non-tenant
occupant). Hence, in order to commence an eviction action pursuant to
§ 799.40(1), there must be a showing of circumstances which permit the inference
that the parties intended to assume a landlord-tenant relationship, Town of
Menominee v. Skubitz, 53 Wis. 2d 430, 435-36, 192 N.W.2d 887 (1972), which is

11
“‘A motion to dismiss for failure to state a claim tests the legal sufficiency of the
complaint.’” Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶19, 356 Wis. 2d 665,
849 N.W.2d 693 (quoted source omitted). The circuit court looks to the sufficiency of the facts
alleged in the complaint in determining whether a claim for relief is properly pled. Id. at 21.
Here, the Burkholders never moved to dismiss the complaint for failure to state a claim, and it is
clear from the court’s decision that it was not dismissing the action because of the insufficiency
of the complaint to state a claim on which relief can be granted but rather because the court
determined that the evidence presented at trial failed to establish the existence of a tenancy and a
landlord-tenant relationship. Therefore, I interpret the court’s dismissal of the complaint to be
based on the evidence presented at trial, rather than on the allegations made in the complaint.

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a factual determination. See Burmeister v. Vondrachek, 86 Wis. 2d 650, 660, 273
N.W.2d 242 (1979) (Whether a landlord-tenant relationship exists is an issue of
fact to be determined at trial.). I will defer to the circuit court’s factual findings
unless they are “against the great weight and clear preponderance of the
evidence.” Royster-Clark, Inc. v. Olsen’s Mill, Inc., 2006 WI 46, ¶12, 290
Wis. 2d 264, 714 N.W.2d 530.

¶9 In determining whether a tenancy existed in this case, I must apply
the applicable landlord-tenant statutes to the facts. Sheppard v. Jensen, 2004 WI
App 216, ¶22, 277 Wis. 2d 260, 689 N.W.2d 667. Whether the Burkholders were
tenants is an issue of law which I review independently. M & I First Nat’l Bank
v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 498, 536 N.W.2d 175 (Ct.
App. 1995).

II. The Burkholders Were Tenants at Will

¶10 The central dispute between the parties concerns whether the
Burkholders were tenants at will and subject to eviction under WIS. STAT.
§ 799.40(1). For the following reasons, I conclude that the uncontested facts
establish that the Burkholders were tenants at will. I therefore reverse the decision
of the circuit court and remand for further proceedings consistent with this
opinion.

¶11 There are several different types of landlord-tenant relationships that
may be created between parties pursuant to: (1) a lease agreement; (2) a “periodic”
tenancy, defined as a tenant who holds possession of a property without a valid
lease and pays rent on a periodic basis; or (3) a tenancy at will, when a party holds
possession of a property with the landlord’s permission and does not pay rent. See

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WIS. STAT. § 704.01(1)-(2), (5). Neither party argues that there was a lease
agreement or periodic tenancy between Thomas and the Burkholders.

¶12 In the circuit court’s oral decision after trial, the court made the
following factual findings: after Thomas purchased the property, he held title to
the property; there was no money paid by the Burkholders to Thomas; Thomas
allowed the Burkholders to live in the property with no additional agreement or
lease; and the Burkholders continued to occupy the property. These findings are
supported by Julie’s trial testimony: Thomas purchased the property for her
because he wanted to take care of her and did not want her or her children to be
homeless; she did not have to pay rent; and she had Thomas’s permission to reside
in the property.

¶13 Despite these findings, the circuit court concluded that no tenancy
had ever existed and no landlord-tenant relationship was established between
Thomas and the Burkholders because the Burkholders never made rent payments
to Thomas. For example, the court stated that “[Thomas] is not making [Julie]
pay, her not making any payments toward rent during this time after her lease with
… Mr. Ness expired and Mr. Lewis took over that. Again, that lease didn’t
continue because … [Julie] didn’t pay rent.” It is apparent from the entirety of the
court’s decision that its legal conclusion that no tenancy existed and its factual
finding that there was no landlord-tenant relationship was premised on the
Burkholders not paying rent to Thomas. This premise as the foundation of the
court’s decision was in error. As noted, a “tenant at will” is defined as “any tenant
holding with the permission of the tenant’s landlord without a valid lease and
under circumstances not involving periodic payment of rent.” WIS. STAT.
§ 704.01(5). See also Burmeister, 86 Wis. 2d at 661(“A tenant at will occupies
the property with the permission of the landlord but without a lease or the periodic

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No. 2024AP1821

payment of rent.”). As the plain language of § 704.01(5) sets forth, a tenant at will
does not involve the periodic payment of rent. Accordingly, I conclude that the
facts as found by the court and uncontested by the parties establish that the
Burkholders were tenants at will and did have a landlord-tenant relationship with
Thomas. To the extent that the court found that there was no landlord-tenant
relationship between Thomas and the Burkholders, that finding is against the great
weight and clear preponderance of the evidence and contrary to the other factual
findings made by the court.

¶14 The Burkholders argue that “Mr. Lewis” and the Burkholders never
established a landlord-tenant relationship because he never gave the Burkholders
explicit permission to occupy the property. The Burkholders allege that receiving
the permission of the landlord “necessarily requires [] some face-to-face arms-
length negotiation by the landlord and tenant to frame that tenancy form;
minimally a request by one party and a grant of permission by the other, which
neither side argues occurred here.” This argument fails for the following reasons.

¶15 To the extent that the Burkholders mean to argue that neither
Thomas nor Kirk ever gave them explicit permission to occupy the property, the
Burkholders do not cite to any persuasive legal authority that receiving the
permission of a landlord to occupy a property requires explicit, as opposed to
implicit, permission. In other words, there may be factual scenarios when a
landlord indicates implicitly that the tenant has the landlord’s permission to
occupy. For example, in Gutter v. Gutter, 2024 WI App 56, ¶28, 413 Wis. 2d
741, 14 N.W.3d 105, which I cite for persuasive value only, this court concluded
that the landlord’s conduct in giving the tenant the keys to the property, checking
on the property, and taking no action to remove the tenant over two years
supported the landlord’s implicit permission for the tenant to occupy the property.

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The Burkholders do not develop an argument that persuades me otherwise. I need
not consider arguments that are unsupported by legal citations or are otherwise
undeveloped, and I decline to do so here. See State v. Pettit, 171 Wis. 2d 627,
646-47, 492 N.W.2d 633 (Ct. App. 1992) (we may decline to address arguments
that lack references to supporting facts or legal authority).

¶16 To the extent that the Burkholders intend to argue that Thomas never
gave them explicit permission to occupy the property, such an assertion further
conflicts with Julie’s trial testimony that she had Thomas’s permission to reside in
the property and not pay rent. Indeed, it is hard to fathom that the Burkholders
lived in the property for more than eighteen months rent free before Thomas’s
death without having, at a minimum, Thomas’s implicit permission to do so. The
undisputed facts establish as a matter of law that there was a landlord-tenant
relationship between Thomas and the Burkholders.

¶17 The Burkholders also appear to rely on the circuit court’s conclusion
that “Mr. Lewis” never had a landlord-tenant relationship with them, as
concluding that Kirk never had such a relationship. However, a review of the trial
transcript and the entirety of the court’s oral decision dismissing the eviction
action unequivocally establishes that the court concluded that no tenancy ever
existed, and no landlord-tenant relationship was ever established, between Thomas
and the Burkholders, as opposed to Kirk and the Burkholders. As explained next,
any such conclusion regarding a relationship between Kirk and the Burkholders
fails as a matter of law under a different analysis.

¶18 I now turn my attention to whether the tenancy at will persisted
following Thomas’s death, which, as noted, is a legal issue subject to my
independent determination. Kirk argues that a tenancy at will did exist following

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Thomas’s death because: a decedent’s personal representative holds legal title to
the assets of the Estate, and a beneficiary only inherits them after the due course of
administration; the personal representative stands in the shoes of the decedent to
pursue any claims the decedent may have had; and neither Julie or Jason had any
ownership interest in the property at the time the eviction action was commenced.
In their response brief, the Burkholders fail to refute these assertions and the
supportive legal authority cited. Therefore, I deem these unrefuted arguments as
conceded by the Burkholders and conclude that the tenancy at will did survive
Thomas’s death. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90
Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (“‘Respondents on appeal
cannot complain if propositions of appellants are taken as confessed which they do
not undertake to refute.’” (quoted source omitted)).

¶19 The Burkholders argue that no tenancy at will existed after
Thomas’s death because Kirk testified at trial that he did not want Julie as a tenant
and that he did not want to take actions to create a tenancy. I reject this argument
because Kirk’s desire to not have a tenancy with the Burkholders does not
terminate the tenancy at will, which requires 28 days written notice. See WIS.
STAT. § 704.19(2)-(3).

¶20 The Burkholders make other arguments on appeal that can be easily
rejected. The Burkholders argue that Kirk “waived” or “forfeited” the issues of
whether a landlord-tenant relationship was established and whether the

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Burkholders were tenants at will.12 “As a general rule, issues not raised in the
circuit court will not be considered for the first time on appeal.” State v. Dowdy,
2012 WI 12, ¶5, 338 Wis. 2d 565, 808 N.W.2d 691. Here, the record establishes
that these were central issues raised and sufficiently developed by Kirk in the
circuit court proceedings, and are therefore not forfeited. The Burkholders also
argue that in order to preserve these issues for appeal, Kirk must have persisted in
arguing for his position even after the court rendered its oral decision rejecting
Kirk’s position. No supporting legal authority is cited for such a proposition, and I
reject it. See Pettit, 171 Wis. 2d at 646.

¶21 In sum, I conclude that the uncontested facts establish that the
Burkholders were tenants at will. Because Kirk, as the personal representative of
Thomas’s estate, properly pursued an eviction action to remove the Burkholders
pursuant to WIS. STAT. § 799.40(1), the action was erroneously dismissed by the
circuit court.

CONCLUSION

¶22 For the reasons stated, I reverse the circuit court’s dismissal of
Kirk’s complaint for eviction and damages and remand for further proceedings
consistent with this opinion.

12
In their briefing, the parties sometimes confuse the rule of “waiver” and the rule of
“forfeiture.” These are distinct, but often incorrectly interchanged, rules. Forfeiture refers to the
failure of a party to make the timely assertion of a right, while waiver is a party’s intentional
relinquishment or abandonment of a known right. State v. Pinno, 2014 WI 74, ¶¶56-57, 356
Wis. 2d 106, 850 N.W.2d 207. Because the parties’ arguments concerning waiver refer to the
failure to raise an issue in the circuit court, I interpret the parties’ arguments about waiver as
intending to advance arguments about “forfeiture.”

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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)4.

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