Background
Terry Watters, Dorrine Watters, and Kimberly Dillenburg jointly owned a 75-acre parcel in Shawano County. Terry brought a partition action and submitted proposals for dividing the property. His second proposal provided access north of an area called the “swamp hole” but did not request an easement over a separate logging road crossing land proposed for Dorrine and Kimberly. The circuit court adopted Terry’s second proposal, and the parties agreed to and recorded a certified survey map implementing the division.
After the partition decision and recording of the survey, Terry refused to execute the quitclaim deeds unless they included an easement over the logging road. He later sought either that easement or equitable contribution toward removing trees and constructing a new road and bridge. The circuit court denied those requests, ordered execution of deeds without the logging-road easement, and ultimately entered a judgment for partition and judicial conveyance. Terry appealed, also alleging judicial bias.
The Court’s Holding
The Court of Appeals affirmed. It held that Terry was judicially estopped from seeking a logging-road easement or construction-related contribution after persuading the circuit court to adopt a partition proposal that provided access elsewhere. His later position was clearly inconsistent with his trial position, involved the same property and circumstances, and followed the circuit court’s adoption of the division he had requested. Terry knew about the logging road before trial but neither requested an easement over it nor claimed that his earlier position resulted from fraud, inadvertence, or mistake.
The court rejected Terry’s reliance on Wisconsin’s partition-compensation statute and O’Connell v. O’Connell. Terry had represented his proposed division as equitable and obtained the access he requested at a different location; the statute did not permit him to obtain an additional right he had omitted from his proposal. The court also rejected his judicial-bias claim as forfeited and undeveloped because he relied largely on material outside the appellate record and pointed only to adverse rulings, not facts demonstrating objective bias. Because judicial estoppel resolved the access and contribution issues, the court did not reach their merits.
Key Takeaways
- A party who persuades a court to adopt a proposed property division may be judicially estopped from later demanding materially different access rights based on facts known before trial.
- Wisconsin’s partition-compensation statute does not necessarily cure a claimed inequity created by the moving party’s own proposal, particularly when the party received the access originally requested.
- Adverse rulings, without developed record evidence of objective partiality, do not establish judicial bias.
Why It Matters
The decision underscores that parties in partition litigation should identify all necessary easements and access arrangements before the court determines the division. A litigant who obtains the requested partition cannot ordinarily reopen the result to add a known but previously unrequested property right. The opinion is per curiam and unpublished, so Wisconsin rules restrict its citation as precedent or authority.