Dominic Clark v. Maureen O'Leary

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 24, 2026
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. 2024AP1209 Cir. Ct. No. 2023PR87

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE AMENDED AND RESTATED FLORENCE M. BALL
REVOCABLE TRUST:

DOMINIC CLARK,

APPELLANT,

V.

THE AMENDED AND RESTATED FLORENCE M. BALL REVOCABLE TRUST
AND TRUSTEE OF BALL REVOCABLE TRUST MAUREEN O'LEARY,

RESPONDENTS.

APPEAL from an order of the circuit court for Ozaukee County:
SANDY A. WILLIAMS, Judge. Reversed and cause remanded for further
proceedings.

Before Gundrum, Grogan, and Lazar, JJ.
No. 2024AP1209

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. Dominic Clark appeals an order denying his
motion for summary judgment and granting The Amended and Restated
Florence M. Ball Revocable Trust and its trustee, Maureen O’Leary’s (together the
“Trust Litigants”), motion for summary judgment. The order also denied the
parties’ respective requests for attorney’s fees and costs. We agree with Clark that
he is entitled to summary judgment on his claim that O’Leary was not a duly
appointed Successor Trustee and therefore lacked authority to sell the Trust’s real
property that is at issue on appeal. We therefore reverse and remand to the circuit
court for further proceedings to enter summary judgment on Clark’s behalf and to
reconsider the parties’ requests for attorney’s fees and costs.

BACKGROUND

¶2 In July 2023, the Trust Litigants invoked the circuit court’s
jurisdiction over trust administration pursuant to WIS. STAT. § 701.0201(1)
(2023-24),1 seeking confirmation that O’Leary had authority to sell the property at
issue, either as Successor Trustee or Administrative Trustee, and that a $1,000
distribution to Clark satisfied his beneficial interest in the Trust. The distribution
had been made pursuant to the following provision in the revocable trust document
(the “Trust”):

If the residence located at 3921 River Lane, in Brown
Deer, Wisconsin is held by or added to this Trust upon the
Grantor’s death, then it shall be distributed to Dominic
Clark, along with any washing machine, dryer, and

1
All subsequent references to the Wisconsin Statutes are to the 2023-24 version.

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refrigerator therein. If that residence is not held by the
Trust, Dominic shall instead receive $1,000.

The remainder of the Trust was to be distributed to various individuals and
charities.

¶3 The Trust’s Grantor, Florence Ball, was Clark’s aunt. Ball
established the Trust in 2008 and amended it on several occasions, including most
recently in June 2019. O’Leary’s law firm drafted the June 2019 amendments,
and in conjunction with those amendments, Ball met with Attorney T. Samuel
Azinger, an attorney with O’Leary’s law firm. The Trust Litigants’ Verified
Petition reflects that Ball specifically discussed the above provision regarding the
Brown Deer home with Azinger, including whether to alter the bequest. Ball
ultimately approved the provision regarding the Brown Deer house, and she
executed a Warranty Deed transferring title of the home to the Trust on June 24,
2019. The Verified Petition further reflects that Ball indicated to Azinger that
“she would just as well sell the house if she’s not living in it” and that she
understood that if that occurred, Clark would not receive the home. Prior
iterations of Ball’s estate planning documents similarly included a bequest of the
Brown Deer residence to Clark.

¶4 The Trust additionally sets forth the following relevant provisions.
First, Ball reserved certain exclusive rights regarding tangible property and real
estate:

Notwithstanding any other provisions of this Trust, the
Grantor reserves the exclusive right to use, posses, manage,
control, and dispose of any tangible personal property and
any real estate used by the Grantor at a residence held by
this Trust during the Grantor’s lifetime.

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(Emphasis added.) Next, the Trust provides for the appointment of successor
trustees. As relevant here:

Maureen L. O’Leary shall be appointed as successor
Trustee in the event of the death, resignation, or inability to
act of the Original Trustee without a successor having been
appointed as provided herein. If Maureen is also unable or
unwilling to act as successor Trustee, or resigns as Trustee,
then an individual or corporate Trustee to be selected by the
then-acting president of Willms-O’Leary, S.C. (or its
successors) shall be appointed as Trustee.

(Emphases added.) The Trust also authorized Ball to appoint an Administrative
Trustee, and Ball signed an “Appointment of Administrative Trustee For The
Florence M. Ball Revocable Trust” document appointing O’Leary’s firm as
Administrative Trustee on June 24, 2019, effective immediately, in conjunction
with the Trust’s signing. Pursuant to the Trust, the Administrative Trustee’s
powers included the ability “[t]o sell and convey, lease or mortgage any or all real
and personal property, and to execute deeds, mortgages, leases, … notes, contracts
or other such instruments and agreements[.]”

¶5 While the Trust does not define the phrase “inability to act” for
purposes of the successor trustee provision, it does define the related phrase
“unable to act.” Specifically:

A person shall be considered to be “disabled,”
“incapacitated,” “unable to act,” “unable to manage assets,”
“unable to manage his or her property,” and/or “unable to
receive notice” during any period of time that any of the
following exist:

1. A court order is outstanding that finds that person to
be legally incapacitated to act in his or her own
behalf, or that appoints a guardian to act on his or
her behalf;

2. Two written certificates by licensed physicians that
certify each of the following to be true:

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No. 2024AP1209

a) That the physician is duly licensed and
certified by a recognized medical board;

b) That the physician has examined the person;
and

c) That based upon said examination the
physician has concluded that, by reason of
accident, physical or mental illness, illegal
drug or alcohol or other substance abuse,
progressive or intermittent physical or mental
deterioration, or other similar cause, the
person examined, on the date of the
examination, was not fully capable of
managing his or her financial or legal affairs
or the affairs of this Trust or any trust created
hereunder[.]

(Formatting altered.)

¶6 In August 2021, two years after the most recent Trust amendments,
Ball sustained multiple injuries and broken bones in a fall. Shortly thereafter,
Ball’s sister contacted O’Leary’s law firm and provided a photograph of a “Power
of Attorney for Health Care Statement of Incapacity” (the Statement of Incapacity)
signed by a psychologist on August 12, 2021, and by a physician on August 13,
2021.2 The form states Ball met “the statutory definition of incapacity”; however,
that statement was limited to her incapacity “to manage … her health care
decisions.” The Trust Litigants do not dispute that this document does not include
the statements required to meet the Trust’s definition of “unable to act” or
“incapacitated” as set forth above. Nevertheless, O’Leary, apparently relying on

2
In the Verified Petition, the Trust Litigants assert that “two doctors signed [the]
healthcare statement of incapacity using an Aurora Health Care form[.]” While the
psychologist’s signature indicates a “PsyD” degree—Doctor of Psychology—there is no
indication in the Record that would support a conclusion that this individual was a licensed
physician.

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No. 2024AP1209

the August 2021 psychologist and physician signatures, thereafter began acting as
Successor Trustee.

¶7 At least as of April 2022, O’Leary began exploring whether to sell
Ball’s Brown Deer residence, and she ultimately moved forward with doing so in
September 2022. O’Leary’s decision followed receipt of a letter in August 2022
wherein a health care provider signed a letter noting Ball “has many chronic
medical conditions which are progressive in nature[,]” explained the “medical
conditions” required 24-hour care, and that it was in Ball’s “best interest” to
remain in out-of-home care as returning to her own home “would be unsafe and
detrimental to [her] health” because “her care needs exceed what home services
could provide.”

¶8 It does not appear O’Leary spoke with Ball prior to listing the
Brown Deer residence for sale. Rather, it appears Ball inadvertently discovered
the pending sale after Clark informed her he had driven past the home and saw the
“for sale” sign in the yard. According to Clark, Ball was “upset and confused” as
to “why and how her house was being sold.” With Clark’s assistance, Ball
unsuccessfully reached out to speak with O’Leary, who did not return her phone
call, to protest the sale. Likewise, when Clark went to O’Leary’s office with a
letter purportedly bearing both Ball’s and a witness’s signature that requested

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No. 2024AP1209

copies of Ball’s estate planning documents, O’Leary and/or members of her firm
refused to provide Clark with copies.3

¶9 O’Leary proceeded with the sale. Prior to closing, her firm provided
the title company with documents purportedly establishing she had authority to
sell the residence as Successor Trustee and included the August 2021 Statement of
Incapacity the physician and psychologist had signed. In response, the title
company explained it required additional information regarding “what is needed to
determine what happens when Florence can’t act” such as a “trust cert[ificate]
naming [O’Leary] as the acting trustee or … the pertinent pages [of the] trust
agreement that state how the successor trustee comes to be the acting trustee.”
The title company also noted the Statement of Incapacity was insufficient because
it “specifically states on it that it is for Power of Attorney for Health Care, [which]
has nothing to do with the Trust and can’t be used for real property.”

¶10 O’Leary’s firm subsequently provided a new “Certificate of Trustee
Authority” indicating O’Leary, inter alia, had “been acting as Administrative
Trustee” since June 2019 and “became Trustee” “due to the inability to act of
Florence M. Ball,” and the document also included certain Trust provisions
regarding trustees. This “Certificate of Trustee” also referenced the same August
2021 Statement of Incapacity the title company had already explained did not
apply for purposes of real property to establish Ball had been “deemed

3
The Verified Petition asserts that while Clark waited in the firm’s lobby, O’Leary
contacted Ball’s sister, who was her “authorized healthcare and financial power of attorney
agent,” and that the sister “authorized [O’Leary] to inform Clark … Ball had been declared
incapacitated by her doctors.” Accordingly, O’Leary and/or members of her firm informed Clark
that Ball’s power of attorney—her sister—must sign any request for Ball’s estate planning
documents.

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No. 2024AP1209

incapacitated upon personal examination by two physicians” in August 2021. The
title company thereafter prepared sale documents identifying O’Leary only in her
capacity as Successor Trustee. Whether the title company would have authorized
O’Leary to proceed with the sale solely in her capacity as Administrative Trustee
is unknown.

¶11 O’Leary ultimately signed a Trustee’s Deed for the sale of the
Brown Deer residence on October 20, 2022, solely in her purported capacity as
Successor Trustee. Ball passed away approximately six weeks later. Following
Ball’s passing, the Trust Litigants sent Clark a check for $1,000 to satisfy his
bequest under the Trust since the Trust no longer owned the Brown Deer
residence, and at least as of the time he filed this appeal, Clark had not cashed the
check.

¶12 The Trust Litigants filed the Verified Petition seeking: (1) a
determination that O’Leary had authority to sell the Brown Deer residence as
Successor Trustee, Administrative Trustee, and/or that “the sale was appropriate
given the facts and circumstances”; and (2) declaratory judgment that Clark was
only entitled to $1,000 pursuant to the Trust’s terms. Clark filed an objection and
Verified Cross-Trust Petition, which sought declaratory judgment that O’Leary
was not the Successor Trustee under the Trust’s terms and therefore had no
authority to sell the Brown Deer residence in that capacity, as well as that O’Leary
did not sell the residence in her capacity as Administrative Trustee.4 Clark also

4
Clark alternatively sought declaratory judgment that any purported authority for the
Administrative Trustee to sell the residence was void ab initio.

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No. 2024AP1209

sought declaratory judgment that in selling the Brown Deer residence, O’Leary
breached her fiduciary duties.

¶13 The parties filed cross-motions for summary judgment. In essence,
and as relevant, the parties’ respective arguments relate to whether O’Leary was
the Successor Trustee under the Trust’s terms, whether she had authority to sell
the Brown Deer residence as either Successor Trustee or Administrative Trustee,
and whether the $1,000 check satisfied Ball’s bequest to Clark pursuant to the
Trust’s terms.

¶14 The Trust Litigants asserted that O’Leary had authority to sell Ball’s
residence as both Administrative Trustee and Successor Trustee. As to O’Leary’s
authority as Successor Trustee, the Trust Litigants pointed to the Trust’s provision
identifying O’Leary as Successor Trustee “in the event of [Ball’s] death,
resignation, or inability to act” and going so far as to state “[t]here is no question”
regarding “Ball’s ‘inability to act’” under the Trust’s terms. In doing so, the Trust
Litigants disputed Clark’s contention that the Trust’s definition of “unable to
act”—the requirements of which are set forth above—applies to the phrase
“inability to act” for purposes of triggering the successor trustee provision and that
in drafting the Trust, the O’Leary firm intentionally chose not to define “inability
to act.” According to the Trust Litigants, the phrase “inability to act” is
unambiguous and therefore “no additional documentation [was] necessary” to
establish Ball’s “inability to act.”

¶15 Clark, to the contrary, pointed to the similar dictionary definitions
for “inability” and “unable” to support his premise that “inability to act” and
“unable to act” should be construed the same way and that because the conditions
for establishing Ball was “unable to act” had not been met, there likewise was no

9
No. 2024AP1209

“inability to act” for purposes of the successor trustee provision. Thus, he argued,
the successor trustee provision had not been triggered because the August 2021
Statement of Incapacity did not contain the two required licensed physician
signatures, and, moreover, neither that document nor the August 2022 letter
indicating it would be contrary to Ball’s best interests to return home contained the
required declarations set forth in the Trust. He also disputed the Trust Litigants’
contention that Ball had been declared incapacitated, again pointing to the Trust’s
definition and the inability of any of the purported medical professionals’
signatures to fulfill the definition’s requirements. Clark also argued that because
O’Leary signed the sale documents as Successor Trustee, the fact that she was also
the Administrative Trustee was irrelevant because she did not sign the sale
documents in that capacity.

¶16 The circuit court held a motion hearing in April 2024 and ruled in
the Trust Litigants’ favor. Specifically, the court rejected the Trust Litigants’
contention that O’Leary was Successor Trustee, stating it could not so find
“because clearly there was no indication of Ms. Ball’s incapacity for purposes of
Successor Trustee” and suggested perhaps there had been “[a] misinterpretation of
the healthcare or information from Ms. Ball’s sister as the power of attorney where
it was thought that she was incapacitated for purposes of Ms. O’Leary becoming
Successor Trustee[.]” However, the court concluded O’Leary nevertheless had
authority to sell Ball’s Brown Deer residence as Administrative Trustee and
likened O’Leary’s designation as Successor Trustee on the deed and sale
documents to a scrivener’s error. In light of this conclusion, the court further
determined Clark was entitled only to $1,000 under the Trust’s terms because the
Trust no longer owned the residence. The court also stated “[t]here was no
indication of anything but good faith in terms of” O’Leary having sold the

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No. 2024AP1209

residence under her authority as Administrative Trustee. Finally, the court denied
costs to both parties, explaining that while it did not “see a problem with the
challenge” asserted, “when people make a challenge[,] they also know that there’s
a cost to it.” The court thereafter signed a written order memorializing its ruling.
Clark appeals.

STANDARD OF REVIEW

¶17 We review a grant of summary judgment de novo. Estate of
Paswaters v. American Fam. Mut. Ins. Co., 2004 WI App 233, ¶13, 277 Wis. 2d
549, 692 N.W.2d 299. Summary judgment is appropriate when the moving party
is entitled to judgment as a matter of law and no genuine issue of material fact
exists. WIS. STAT. § 802.08(2). “At the summary judgment stage, all facts and
reasonable inferences” from those facts are “viewed in the light most favorable to
the nonmoving party[.]” Bohm v. Leiber, 2020 WI App 52, ¶8, 393 Wis. 2d 757,
948 N.W.2d 370.

¶18 The interpretation of a testamentary document presents a question of
law we review de novo. See Furmanski v. Furmanski, 196 Wis. 2d 210, 214, 538
N.W.2d 566 (Ct. App. 1995). “The paramount object of will or trust construction
is the ascertainment of the testator’s or settlor’s intent,” id. at 215, and “[t]he best
evidence of the testator’s intent is the language of the document itself,” MacLeish
v. Boardman & Clark LLP, 2019 WI 31, ¶52, 386 Wis. 2d 50, 924 N.W.2d 799.
“If there is no ambiguity in the document, there is no need for us to look further as
to what may have been the testator’s or settlor’s actual intent.” Furmanski, 196
Wis. 2d at 215.

¶19 A circuit court’s decision to impose costs and fees, including
reasonable attorney’s fees, under WIS. STAT. § 701.1004(1) is discretionary. We

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No. 2024AP1209

review such discretionary decisions under the erroneous exercise of discretion
standard. See Madison Metro. Sch. Dist. v. Circuit Ct. for Dane Cnty., 2011 WI
72, ¶34, 336 Wis. 2d 95, 800 N.W.2d 442. “A circuit court properly exercises its
discretion when it examines the relevant facts, applies a proper standard of law,
and using a demonstrated rational process reaches a conclusion that a reasonable
judge could reach.” Dane County DHS v. Mable K., 2013 WI 28, ¶39, 346
Wis. 2d 396, 828 N.W.2d 198; Hartung v. Hartung, 102 Wis. 2d 58, 66, 306
N.W.2d 16 (1981). “[A] discretionary determination must be the product of a
rational mental process by which the facts of record and law relied upon are stated
and are considered together for the purpose of achieving a reasoned and
reasonable determination.” Hartung, 102 Wis. 2d at 66. We review questions of
law de novo. Mable K., 346 Wis. 2d 396, ¶39.

DISCUSSION

¶20 The primary issue raised on appeal is whether O’Leary was a duly
appointed Successor Trustee under the Trust’s terms such that she had authority to
sell Ball’s Brown Deer residence as Successor Trustee. If she did not have such
authority, we must also determine whether O’Leary nevertheless had authority to
sell the residence in her capacity as Administrative Trustee despite having signed
all relevant sale documents in her purported capacity as Successor Trustee. On
appeal, the parties generally raise the same arguments as those raised on summary
judgment before the circuit court, and we do not repeat them here.

¶21 We look to the Trust’s terms to determine whether O’Leary had
authority to act as Successor Trustee when she sold the Brown Deer residence.
See, e.g., McGuire v. McGuire, 2003 WI App 44, ¶10, 260 Wis. 2d 815, 660
N.W.2d 380. To do so, we must determine Ball’s intent as to the meaning of the

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No. 2024AP1209

phrase “inability to act” as used in the successor trustee provision. We determine
intent “from the language of the document itself, considered in light of the
circumstances surrounding the testator or settlor at the time the document was
executed.” Furmanski, 196 Wis. 2d at 215. The Trust’s language “is the best
evidence of [Ball’s] intent.” See id. If there is no ambiguity, we need look no
further. See id. A trust’s language is ambiguous if it “is subject to two or more
reasonable interpretations, either on its face or as applied to the extrinsic facts to
which it refers.” Czaplewski v. Shepherd, 2012 WI App 116, ¶15, 344 Wis. 2d
440, 823 N.W.2d 523.

¶22 Under the Trust’s terms, O’Leary was to “be appointed as successor
Trustee in the event of the … inability to act of the Original Trustee [Ball] without
a successor having been appointed as provided” in the Trust. Although the Trust
does not define “inability to act,” which the Trust Litigants suggest was
intentional, the Trust does define “unable to act.” Having reviewed the Trust as a
whole, we are satisfied that Ball unambiguously intended “inability to act” and
“unable to act” to carry the same meaning for the purpose of triggering the
successor trustee provision. See, e.g., Staaben v. Jabs, 57 Wis. 2d 363, 370, 204
N.W.2d 478 (1973) (“A will is not a phrase or group of phrases, but must be
considered as an entire instrument and read as such.”); League of Women Voters
v. Madison Cmty. Found., 2005 WI App 239, ¶15, 288 Wis. 2d 128, 707 N.W.2d
285 (“Trust instruments are construed using the same principles of construction as
wills.”).

¶23 The successor trustee provision provides that if no other successor
trustee has been appointed, O’Leary “shall be appointed as successor Trustee in
the event of [Ball’s] death, resignation, or inability to act[.]” The sentence
immediately thereafter identifies how a successor trustee will be appointed if

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No. 2024AP1209

O’Leary “is also unable or unwilling to act[.]” (Emphases added.) The Trust’s
use of the world “also” clearly indicates Ball intended the nearly identical phrases
“inability to act” and “unable to act” to carry the same meaning within this
provision. To conclude otherwise would lead to a result wherein the
circumstances in which O’Leary was considered “unable to act” within the Trust’s
definition of that phrase would be far more limited than the circumstances in
which Ball herself would be determined to have an “inability to act.” Ball cannot
have intended for the successor trustee provision to be triggered more readily for
the purpose of appointing a successor due to her own “inability to act” than in the
event O’Leary, too, was “unable to act.”5

¶24 O’Leary’s own understanding—particularly given her firm’s
involvement in drafting the Trust documents—that Ball’s incapacity would trigger
the successor trustee provision further indicates Ball did not intend “inability to
act” to mean something different than “unable to act.” Specifically, the Trust
Litigants assert O’Leary understood the August 2021 Statement of Incapacity as
being “the triggering event as [appointing O’Leary] Successor Trustee[.]”
5
In the context of contract interpretation, which also seeks to discern the parties’ intent,
“[w]e interpret the language ‘consistent with what a reasonable person would understand the
words to mean under the circumstances.’” Maryland Arms Ltd. P’Ship v. Connell, 2010 WI 64,
¶¶22-23, 326 Wis. 2d 300, 786 N.W.2d 15. Applying that principle here, a reasonable person
would understand “inability to act” and “unable to act” to carry the same meaning. For example,
The Oxford English Dictionary defines “inability” as “[t]he state or condition of being unable to
do something; lack of physical, mental, or moral ability; want of power, capability, or means.”
See Inability, Oxford English Dictionary,
https://www.oed.com/dictionary/inability_n?tab=meaning_and_use#742947 (last visited May 29,
2026) (emphasis added; second definition). Likewise, the Oxford English Dictionary defines
“unable” as “[n]ot able, not having ability or power, to do or perform (undergo or experience)
something specified.” See Unable, Oxford English Dictionary,
https://www.oed.com/dictionary/unable_adj?tab=meaning_and_use#17141443 (last visited
May 29, 2026) (first emphasis added; first definition). From these definitions, it is clear that
“inability,” a noun, and “unable,” an adjective, are simply different parts of speech that a
reasonable individual would understand to mean the same thing.

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No. 2024AP1209

Because “incapacity” itself is not identified as a standalone triggering event for
purposes of the trustee successor provision, the only way the Statement of
Incapacity could serve as a triggering event was pursuant to the definition of
“unable to act,” which can be established by written certifications from two
“licensed physicians” confirming specified facts regarding Ball’s inability to
undertake certain actions.6

¶25 Based on our conclusion that Ball intended “inability to act” and
“unable to act” to carry the same meaning for purposes of triggering the successor
trustee provision, it is clear the requisite conditions for triggering O’Leary’s
appointment as Successor Trustee had not been met. First, it is undisputed that
Ball had neither passed away nor resigned at the time O’Leary sold the residence.
Second, the conditions for establishing an “inability to act”—either a court order
or statements from two licensed physicians meeting the requirements explicitly set
forth under the Trust’s terms—had likewise not been met. Consequently, O’Leary
was not the duly appointed Successor Trustee under the Trust’s terms, and she
therefore lacked authority to sell the Brown Deer residence in such capacity.

¶26 Having determined O’Leary lacked authority to sell the Brown Deer
residence as Successor Trustee, we must next determine whether she nevertheless
can be considered to have authorized the sale as Administrative Trustee under
these circumstances. We conclude she cannot.

6
That O’Leary relied on the August 2021 Statement of Incapacity as the triggering event
belies the Trust Litigants’ argument that “inability to act” was intentionally undefined.
Moreover, the Trust sets forth the same definition for “incapacitated” and “unable to act.”

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No. 2024AP1209

¶27 WISCONSIN STAT. § 706.03(1m) requires that an individual acting as
the agent of another must be authorized to do so: “A conveyance signed by one
purporting to act as agent for another shall be ineffective as against the purported
principal unless such agent was expressly authorized, and unless the authorizing
principal is identified as such in the conveyance or in the form of signature or
acknowledgment.” Because O’Leary signed the sale documents as Successor
Trustee without authority to do so and the circumstances set forth in WIS. STAT.
§ 706.04 that would allow for equitable relief are not present, the conveyance is
invalid. See WIS. STAT. §§ 706.001, 706.02(1), 706.03(1m); see also Lucareli v.
Lucareli, 2000 WI App 133, ¶15, 237 Wis. 2d 487, 614 N.W.2d 60.
Consequently, that O’Leary was the Administrative Trustee and may have
otherwise had authority to sell the residence in that capacity does not save the
transaction here because she did not purport to sell the residence in her capacity as
Administrative Trustee. The circuit court therefore erred in equating O’Leary’s
having signed the deed and sale documents in her capacity as Successor Trustee to
a scrivener’s error7 as this was not merely an error or an oversight but rather an
intentional representation that O’Leary had authority to act as the Successor
Trustee as indicated on the conveyance documents.

¶28 As a final matter, we address the circuit court’s denial of the parties’
respective requests for costs and fees. It appears the court denied the parties’

7
BLACK’S LAW DICTIONARY explains that a “scrivener’s error” or “clerical error” is
“[a]n error resulting from a minor mistake or inadvertence” such as “a drafter’s or typist’s
technical error that can be rectified without serious doubt about the correct reading.” See Error,
BLACK’S LAW DICTIONARY (12th ed. 2024) (second definition (clerical error)). More
specifically, BLACK’S LAW DICTIONARY provides the following “numberless possible examples”
of what might qualify as a scrivener’s error: “omitting an appendix from a document; typing an
incorrect number; mistranscribing or omitting an obviously needed word; and failing to log a
call.” Id.

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No. 2024AP1209

requests based on its conclusion that O’Leary had authority to sell the Brown Deer
residence in her capacity as Administrative Trustee despite having signed the sale
conveyance documents under the representation she was doing so with authority
as Successor Trustee. Because O’Leary’s authority as Administrative Trustee was
insufficient to do so under the circumstances present here and Clark, rather than
the Trust Litigants, is entitled to summary judgment, we believe it is necessary to
remand this issue to the circuit court for further consideration of the parties’
requests for costs and fees in light of our conclusions as set forth herein.
Accordingly, on remand, the circuit court is to enter summary judgment in Clark’s
favor and reconsider whether to award any of the requested costs and fees.

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.

17