Robert Parks v. Robert Wucherer

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.
October 15, 2020
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. 2019AP2272 Cir. Ct. No. 2017CV540

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

ROBERT PARKS AND JENNIFER PARKS,

PLAINTIFFS-APPELLANTS,

V.

ROBERT WUCHERER AND WUCHERER JOINT REVOCABLE TRUST DATED
OCTOBER 18, 2000,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Dodge County:
MARTIN J. DeVRIES, Judge. Affirmed and cause remanded with directions.

Before Fitzpatrick, P.J., Kloppenburg, and Nashold, 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. 2019AP2272

¶1 PER CURIAM. Robert Parks and Jennifer Parks appeal a circuit
court decision granting summary judgment to Wucherer Joint Revocable Trust
Dated October 18, 2000 (the Trust) dismissing the Parkses’ breach of contract and
misrepresentation claims. The Parkses’ claims arise from their purchase in 2017
of a house owned by the Trust. The Parkses allege that after purchasing the house
they discovered that the basement leaks and that the Trust, through its “trustee”
Robert Wucherer,1 falsely represented the home as being free of all defects. The
circuit court granted the Trust’s motion for summary judgment dismissing the
Parkses’ claims on the ground that the Parkses failed to present any evidence that
the Trust, through its sole trustee Daniel Wucherer, made any representations
itself, authorized Robert to act for the Trust, or otherwise agreed to be bound by
Robert. On appeal, the Parkses argue that the circuit court erroneously granted
summary judgment dismissing their claims because they submitted evidence
showing that they “interpreted” Robert to have acted as an agent of the Trust,
based on the silence of the Trust and the conduct of Robert during the real estate
transaction. Based on our independent review of the record, we conclude that the
Trust is entitled to summary judgment dismissing the Parkses’ claims against the
Trust because the Parkses fail to present any evidence showing that Robert acted
as an agent of the Trust.

¶2 The Trust has filed a motion asking that we determine that this
appeal is entirely frivolous. We grant the motion.

1
Various members of the Wucherer family are involved in this case, and for clarity we
will refer to each of them after initial introduction by his or her first name.

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¶3 Accordingly, we affirm and remand this matter to the circuit court to
determine the costs, fees, and reasonable attorney’s fees, to be paid entirely by
counsel for the Parkses and not in any part by the Parkses, and awarded to the
Trust.

BACKGROUND

¶4 The following facts are undisputed.

¶5 William Wucherer served as the sole trustee of the Trust from the
date of his wife Patricia Wucherer’s death until he resigned that position on
February 4, 2017. On February 10, 2017, Daniel, William’s son, was named
successor trustee of the Trust. Robert, Daniel’s brother and William’s other son,
was not named as a trustee at any time pertinent to this case.

¶6 In March 2017, the Parkses purchased property owned by the Trust.
During the course of the real estate transaction, the Parkses dealt exclusively with
Robert and he was present at both the home inspection and closing. Robert signed
the offer to purchase, an addendum to the offer to purchase, an amendment to the
offer to purchase, and an acknowledgement of receipt of earnest money from the
Parkses. Robert also signed a Real Estate Condition Report that disclosed no
defects in the home, including in the basement. Robert signed the real estate
condition report on the line marked “person supplying information” and signed all
the other forms on the line marked “seller.”

¶7 The title commitment issued to the Parkses before closing showed
the owner of the property to be “William J. Wucherer and Patricia A. Wucherer, or
their successor, as trustees of [the Trust].” When the Parkses closed on the

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property and received the deed, it was signed by William, who was at that time no
longer a trustee.

¶8 Upon discovering defects in their basement, the Parkses filed a
summons and complaint naming Robert as the sole defendant and seller of the
property and alleging breach of contract and misrepresentation. The circuit court
granted summary judgment dismissing the Parkses’ claims against Robert because
the record showed that it was undisputed that Robert could not have sold the
property to the Parkses because he did not own the property. The court granted
the Parkses time to amend their pleadings.

¶9 The Parkses filed an amended summons and complaint naming the
Trust as the sole defendant and seller of the property. The amended complaint
alleges that Robert is “a trustee” of the Trust.

¶10 The Trust moved for summary judgment dismissing the Parkses’
claims on the grounds that Robert is not a trustee of the Trust and that the actual
trustee, Daniel, made no representations to the Parkses and had no contact with the
Parkses. In response to the motion, the Parkses submitted an affidavit by Jennifer
Parks in which she averred that the Parkses “believed that Robert Wucherer was
… acting as an agent of the [Trust.]” As stated, the circuit court granted the
motion, concluding that the record contains no evidence showing that the Trust
made any representations, gave Robert authority to make representations, or
otherwise agreed to be bound by Robert. This appeal follows.

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DISCUSSION

I. Summary Judgment

¶11 On appeal, the Parkses do not dispute that Robert is not a trustee of
the Trust. Rather, they argue that Robert “acted as an agent of the Trust” during
the real estate transaction such that the Trust is liable for Robert’s representations
about the condition of the property and that the circuit court erred in concluding
that they presented no evidence establishing, or creating a genuine dispute as to,
that fact.

¶12 We first summarize the standard of review and applicable legal
principles. We next explain why, consistent with those legal principles, we
conclude that the Parkses have not set forth specific evidence showing that there is
a genuine issue of fact as to whether Robert acted as an agent of the Trust. We
address the Parkses’ arguments to the contrary and explain why we reject them.
Finally, we address and grant the Trust’s motion to determine this entire appeal
frivolous.

A. Summary Judgment Standard of Review

¶13 This court reviews a circuit court’s grant of summary judgment
independently, applying the same methodology as the circuit court. Carlin Lake
Ass’n, Inc. v. Carlin Club Properties, LLC, 2019 WI App 24, ¶19, 387 Wis. 2d
640, 929 N.W.2d 228. Summary judgment is appropriate where “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

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No. 2019AP2272

that the moving party is entitled to a judgment as a matter of law.” WIS. STAT.
§ 802.08(2).2 When one party moves for summary judgment, “an adverse party
may not rest upon the mere allegations or denials of the pleadings but the adverse
party’s response, by affidavits or as otherwise provided in this section, must set
forth specific facts showing that there is a genuine issue for trial.” Sec. 802.08(3).
If the party opposing summary judgment fails to set forth specific facts showing
that there is a genuine issue of material fact, summary judgment shall be entered
against that party. Id.

¶14 “The purpose of summary judgment procedure is to avoid trials
when there is nothing to try.” Tews v. NHI, LLC, 2010 WI 137, ¶42, 330 Wis. 2d
389, 793 N.W.2d 860. Accordingly, the court’s duty on summary judgment is not
to try the facts but to decide whether there is a genuine issue of fact to be tried. Id.

B. Applicable Legal Principles

¶15 Principals may be held responsible for the conduct of their agents
where an explicit, implied, or apparent agency relationship exists. Skrupky v.
Elbert, 189 Wis. 2d 31, 43-44, 526 N.W.2d 264 (Ct. App. 1994) (explicit and
implicit agency); Vandervest v. Kauffman Pizza, Inc., 60 Wis. 2d 230, 245, 208
N.W.2d 428 (1973) (apparent agency). Explicit agency occurs when the principal
manifests its intention to imbue the agent with authority by way of an explicit
communication or contract between the principal and the agent. Skrupky, 189
Wis. 2d at 43-44.

2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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¶16 Implied authority occurs when the principal’s conduct causes the
agent to reasonably believe he or she has authority as a result of the action of the
principal. Id. Implied authority exists “when the agent, not the third party,
reasonably believes he or she has authority as a result of the action of the
principal.” Mared Indus., Inc. v. Mansfield, 2005 WI 5, ¶31, 277 Wis. 2d 350,
372, 690 N.W.2d 835 (quoted source omitted).

¶17 The doctrine of apparent agency provides that a principal may be
held liable for an agent’s conduct against a third party, even if the principal has not
authorized the agent’s authority either explicitly or implicitly, if the principal
manifests to the third party that it consents to the agent’s conduct. Hansche v.
A. J. Conroy, Inc., 222 Wis. 553, 559-560, 269 N.W. 309 (1936). Three elements
are required to establish apparent agency: (1) Acts by the agent or principal
justifying belief in the agency; (2) knowledge thereof of the party sought to be
held; and (3) reliance thereon consistent with ordinary care and prudence. Id. at
560. Cf. Pamperin v. Trinity Mem’l Hosp., 144 Wis. 2d 188, 203, 423 N.W.2d
848 (1988). Apparent agency cannot rest solely upon the statements made to third
parties by the agent, but rather is dependent upon the principal’s manifestation of
consent. Vandervest, 60 Wis. 2d at 245.

C. Analysis

¶18 We conclude that the Parkses have failed to present evidence
showing a genuine issue of fact as to whether Robert acted as an agent of the
Trust. First, the record reveals no evidence of any explicit communication or
contract between the Trust and Robert so as to establish an explicit agency
relationship. For example, the Parkses do not point to any evidence that Daniel,
the trustee at the time of real estate transaction, asked or directed Robert to

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conduct the sale of the property; that Robert had a pattern of conducting sales on
the Trust’s behalf; that Robert informed Daniel of his activities related to the sale
of the property; that Daniel received copies of the paperwork Robert signed; or
that there are any other facts that would allow us to infer that an explicit agency
relationship existed between Robert and the Trust.

¶19 Second, the record reveals no evidence of an implicit agency
relationship between Robert and the Trust. As we understand it, the Parkses argue
that they presented evidence, through Jennifer Parks’ averments, that they believed
that Robert acted as the Trust’s agent and that such an agency relationship was
implied from the Trust’s silence and Robert’s conduct during the real estate
transaction. However, as stated above, implied authority exists when the agent
reasonably believes that he or she has authority as a result of the action of the
principal. Mared, 277 Wis. 2d 350, ¶31. But, the Parkses did not depose Robert
or otherwise seek to ascertain what be believed, and do not point to any other
evidence as to his belief.

¶20 Third, as for apparent agency:

The apparent authority for which the principal may be
liable must be traceable to him [or her], and cannot be
established by the acts and conduct of the agent. The
principal is only liable for that appearance of authority
caused by himself [or herself]…. If words or conduct of
the agent are relied upon, it must be shown that the
principal had knowledge of and acquiesced in them.

Hansche, 222 Wis. at 561 (quoted source omitted). Here, the Parkses did not
depose Daniel or otherwise seek to ascertain whether he knew of or acquiesced in
Robert’s conduct during the real estate transaction, and do not point to any other
evidence as to what Daniel knew. “[A]pparent agency and authority cannot rest
solely upon the statements made to third parties by the agent but are dependent

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upon the principal’s manifestation of consent.” Vandervest, 60 Wis. 2d at 245.
The Parkses fail to show that the Trust manifested to the Parkses that it consented
to Robert’s conduct, or that the Trust even knew of Robert’s conduct. Rather, the
Parkses concede that “the only person that [they] dealt with during the property
transaction was Robert.” The Parkses present no legal authority supporting the
proposition that we can infer an apparent agency relationship based on the alleged
agent’s conduct alone.

¶21 In sum, the Parkses present no evidence about (1) communication
between Daniel and Robert; (2) Robert’s reasons for acting as he did; (3) what
Daniel knew during the course of the real estate transaction; (4) who arranged for
the property to be shown, the earnest money check to be deposited, the title
commitment to be sent, or the deed to be transferred; or (5) any other facts that
would allow us to conclude that there is a genuine issue of material fact to be tried
as to whether Robert had an explicit, implicit, or apparent agency relationship with
the Trust.

¶22 Throughout their briefing on appeal, the Parkses point to evidence of
what they believed and how they interpreted what they call the Trust’s silence and
Robert’s conduct. However, those efforts fail to come to grips with the law set
forth above, which requires (for implicit agency) evidence of the agent’s “belief”
that the agent had authority, see Mared, 277 Wis. 2d 350, ¶31, or (for apparent
agency) of the principal’s “knowledge” of and “manifestation” of consent to the
agent’s conduct, see Hansche, 222 Wis. at 560-61 and Vandervest, 60 Wis. 2d at
245. It is their failure to present any evidence either that Robert believed he was
acting on behalf of the Trust or that the Trust, through its trustee Daniel, was
aware of and consented to Robert’s conduct, which entitles the Trust to summary
judgment dismissing the Parkses’ claims against it.

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¶23 The Parkses argue that the Trust’s failure to object to Robert’s
conduct constitutes acquiescence through silence, but the law they cite does not
support their argument. First, they cite Skrupky, 189 Wis. 2d at 43. But in
Skrupky, the undisputed evidence showed that the agent had longstanding
authority to act on the principal’s behalf, that the agent had informed the principal
of his conduct, and that the principal acquiesced. Id. at 43-44 (finding an implied
agency relationship where, for years, the son of the principal mother had his
mother’s consent to conduct all business affairs relating to the property in question
and the mother did not object to the son’s conduct after he reported to her his
conversation with the buyers). Here, the Parkses do not set forth any facts that
would allow us to infer that the Trust, through its trustee Daniel, was aware of
Robert’s conduct and was therefore capable of either objecting to it or silently
acquiescing to it.

¶24 Second, the Parkses cite RESTATEMENT (SECOND) OF AGENCY § 26
(1958). Specifically, the Parkses rely on a comment to the Restatement that
provides:

The manifestation of the principal may consist of
his [or her] failure to object to unauthorized conduct.…
This is so if … a reasonable person in the position of the
principal knowing of unauthorized acts and not consenting
to their continuance would do something to indicate his [or
her] dissent.

RESTATEMENT (SECOND) OF AGENCY § 26 cmt. d (1958). The Parkses argue that,
consistent with the comment, “[i]f the Trust did not want [Robert] to act as its
agent, it reasonably would have objected to [Robert’s] actions.” However, this
argument relies on a presumption that the Trust, through its trustee Daniel, was
aware of Robert’s conduct and therefore capable of objecting to his actions, a
presumption that has no basis in the record. As explained above, and as set forth

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in the Restatement language on which the Parkses rely, silence can only be a
manifestation of consent when the principal has knowledge of the agent’s conduct.
RESTATEMENT (SECOND) OF AGENCY § 26 cmt. d (1958) (“This is so if … a
reasonable person in the position of the principal knowing of unauthorized acts and
not consenting to their continuance would do something to indicate his dissent.”
(emphasis added)); Hansche, 222 Wis. at 561 (“If words or conduct of the agent
are relied upon, it must be shown that the principal had knowledge of and
acquiesced in them.” (emphasis added))

¶25 Finally, the Parkses argue that legal entities like the Trust can only
act through agents, and that failing to hold the Trust accountable for Robert’s
conduct improperly shields the Trust from all liability. The problem is that the
Parkses have presented no evidence that the Trust acted at all. The record shows
that Robert acted in conducting the sale and that William acted in signing the
deed, but nothing in the record reveals that either man acted as an agent of the
Trust. In response to the Trust’s summary judgment motion, the Parkses had a
responsibility not to rest on “mere allegations” that the Trust acted through Robert
but to instead, by affidavits or other means, “set forth specific facts” showing
either that there is no dispute that the Trust acted through Robert or that there is a
genuine issue of material fact as to whether the Trust acted through Robert. See
WIS. STAT. § 802.08(3). As explained above, the Parkses failed to do so.
Accordingly, the Trust is entitled to summary judgment dismissing the Parkses’
claims against the Trust.3

3
In the circuit court, the Parkses argued that Robert may have committed fraud by
intentionally lying in representing himself as the owner of the property. But, as the Parkses also
conceded to the circuit court, they did not include any such claim in their amended complaint.

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No. 2019AP2272

II. Frivolous Appeal

¶26 The Trust has moved this court for costs, fees, and attorney’s fees,
pursuant to WIS. STAT. RULE 809.25(3)(a), because the appeal is frivolous. We
agree.

¶27 As pertinent here, an appeal is frivolous if “[t]he party or the party’s
attorney knew, or should have known, that the appeal or cross-appeal was without
any reasonable basis in law or equity and could not be supported by a good faith
argument for an extension, modification or reversal of existing law.” WIS. STAT.
RULE 809.25(3)(c)2. “To award costs and attorney fees, an appellate court must
conclude that the entire appeal is frivolous.” Schapiro v. Pokos, 2011 WI App 97,
¶20, 334 Wis. 2d 694, 802 N.W.2d 204 (quoted source omitted). “Whether an
appeal is frivolous is a question of law.” Id. (quoted source omitted). In
evaluating whether a party or party’s attorney knew or should have known that the
appeal had no reasonable basis in law or equity, we look to what a reasonable
party or attorney would or should know under the same or similar circumstances.
Howell v. Denomie, 2005 WI 81, ¶9, 282 Wis. 2d 130, 698 N.W.2d 621.

¶28 Essentially, the Trust argues that the Parkses appeal a summary
judgment that was entered based on the Parkses’ failure to present evidence of
facts showing that Robert acted as an agent of the Trust and that in their appeal the
Parkses do not identify any evidence or cite any law supporting their agency
theory.

¶29 In response, the Parkses repeat their arguments that the Trust
acquiesced to Robert’s conduct through silence and that the Parkses reasonably
believed that Robert had authority to bind the seller. The Parkses do not offer any
legal authority that would support treating the Trust’s inaction or the Parkses’

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beliefs as evidence of an agency relationship, absent any evidence of the trustee
Daniel’s manifestations or knowledge of the alleged agent Robert’s beliefs.

¶30 In their response to the motion for costs and fees the Parkses do
argue, for the first time, that the Trust’s control of Robert as an agent may be
inferred from the fact that the Trust “stepped in to transfer the deed and title of the
property to the Parkses at closing.” However, the Parkses offer no citation to the
record on this point other than a general citation to Jennifer Parks’ affidavit and
attached exhibits. Jennifer Parks’ affidavit does not reference transfer of the deed
and title of the property, and copies of these documents are not contained in the
attached exhibits. Also, in arguing that the Trust transferred the deed and title, the
Parkses do not address the undisputed fact that the deed was actually signed by
William, who was no longer a trustee. This argument comes too late and is
unsupported by the record.

¶31 We agree with the Trust that a reasonable attorney would have
known that its agency argument, which had been defeated on summary judgment
for failure to present evidence supporting such an argument under well-established
existing law on agency, would fare no better on appeal without that evidence,
absent any principled argument for modifying or extending the existing law.
Because neither such evidence nor such an argument has been presented on
appeal, we conclude that the Trust has met the requirements of WIS. STAT.
RULE 809.25(3)(c)2. Further, pursuant to RULE 809.25(3)(b), we conclude that
the onus for the frivolous appeal should fall entirely on the Parkses’ attorney and
that, therefore, fees should be assessed in toto on the attorney and not even in part
on the Parkses. We see no reason to think that any shortcoming that we have
summarized was the result of any act of the Parkses, as opposed to acts of their
attorney.

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¶32 Accordingly, we grant the Trust’s motion, and remand this matter to
the circuit court to determine the costs, fees, and reasonable attorney's fees to be
awarded to the Trust and paid by the Parkses’ attorney.

By the Court.—Order affirmed and cause remanded with directions.

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

14