Estate of Hugh F. McCaffery, Sr. v. Gilbert Garrett ( 2023 )

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.
April 4, 2023
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. 2021AP715 Cir. Ct. No. 2019CV87
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
ESTATE OF HUGH F. MCCAFFERY, SR., BY ITS PERSONAL
REPRESENTATIVE HUGH F. MCCAFFERY, JR.,
PLAINTIFF-APPELLANT,
V.
GILBERT GARRETT, ROXANNE GARRETT, SHIRLEY MARTIN, GEORGE
AIKEN, WENDY THAYER, HARJIT K. SOHPAUL, RESHAM SOHPAUL,
PORTAL PROPERTIES, LLC AND PIVITOL PARTNERS, LLC,
DEFENDANTS-RESPONDENTS.
APPEAL from judgments of the circuit court for Rusk County:
STEVEN P. ANDERSON, Judge. Affirmed in part; reversed in part and cause
remanded for further proceedings.
Before Stark, P.J., Hruz and Gill, 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. 2021AP715
¶1 PER CURIAM. The Estate of Hugh McCaffery, Sr., appeals
summary judgments entered in favor of Gilbert Garrett, Roxanne Garrett,
Shirley Martin, George Aiken, Wendy Thayer, Harjit Sohpaul, Resham Sohpaul,
and Portal Properties, LLC.1 The Estate contends that the circuit court erred by
dismissing several of its claims against these parties. We reject all of the Estate’s
arguments except for its argument that the court erred by granting summary
judgment on its claim for conversion of personal property claim against Martin.2
We therefore affirm in part, reverse in part, and remand for further proceedings.3
1
Because Gilbert and Roxanne Garrett share the same last name, we will refer to them
individually using their first names.
In addition, Portal Properties was formerly known as Pivitol Partners, LLC. Although the
Estate filed this action against both Portal Properties and Pivitol Partners, as if they were two
separate entities, we will treat them as one entity for purposes of this appeal.
2
Gilbert, Roxanne, Aiken, Thayer, and the Sohpauls each make alternative arguments to
their arguments discussed in this opinion. We need not address these alternative arguments,
however, because the arguments discussed in this opinion are dispositive of their appeals. See
Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (we need not
address all issues raised by the parties if one is dispositive).
3
Many of the Estate’s arguments on appeal are disorganized, undeveloped, and lacking
appropriate citations to both the record and relevant legal authority. We need not address
arguments that are undeveloped and unsupported by legal authority. State v. Pettit, 171 Wis. 2d
627, 646-47, 492 N.W.2d 633 (Ct. App. 1992). Nor do we have a duty “to scour the record to
review arguments unaccompanied by adequate record citation.” Roy v. St. Lukes Med. Ctr., 2007
WI App 218, ¶10 n.1, 305 Wis. 2d 658, 741 N.W.2d 256. We have done our best to discern the
Estate’s arguments, but we will not abandon our neutrality to develop its arguments. See
Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d
148, 769 N.W.2d 82. Accordingly, to the extent we do not address an issue or argument the
Estate intended to raise, we conclude such an issue or argument is not sufficiently developed to
warrant our consideration.
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BACKGROUND
¶2 The following facts are undisputed for purposes of this appeal.
McCaffery Sr. and his brother owned a farm (“the Farm”) in Rusk County,
Wisconsin, that was allegedly worth $225,000 as of September 2013. Near the
end of that month, the two brothers signed a contract agreeing to eventually sell
the Farm to Gilbert for only $110,200. The contract contained a number of
covenants, including a covenant that “[t]he following personal property is included
with the premises,” which was then followed by a handwritten note: “As is.” At
the time of the contract, both McCaffery Sr. and Gilbert were associated with an
organization known as the Institute for the Study of Human Awareness, Inc.
(ISHA) and its leader, Ishwar Puri.4
¶3 According to the complaint, McCaffery Sr. “conditioned” the sale of
the Farm on Gilbert’s “assurances that the [F]arm was being purchased for
Ishwar Puri and ISHA.” ISHA apparently wanted the Farm “to construct a
conference center complex” and “the Dera Hall.” The complaint further alleged
that Gilbert agreed: (1) that he would hold title to the Farm “as trustee for ISHA”
until it repaid him the purchase price; and (2) “[t]hat if ISHA followed through
with [its] commitments and paid [him] back …, [a]ll the land would then revert to
ISHA.”
¶4 Gilbert subsequently assigned his right to purchase the Farm to
Pivitol Partners, LLC, of which he and his wife, Roxanne, were the only members.
4
The record contains very little factual information about ISHA. The Estate claims—
without any record support—that “ISHA purports to be devoted to the ‘personal and spiritual
discernment or development’ of its adherents or ‘a better understanding of human capacity.’”
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In November 2013, McCaffery Sr. and his brother conveyed the Farm to Pivitol
Partners via warranty deed. Sometime thereafter, Pivitol Partners changed its
name to Portal Properties, LLC.
¶5 Despite the sale, McCaffery Sr. continued to live on the Farm for
two more years, until mid-November 2015, when he began end-of-life care in a
nursing home “due to terminal cancer.” On November 24, 2015, McCaffery Sr.
executed a number of legal documents, including a new will, naming Martin and
Gilbert as executors of McCaffery Sr.’s estate, and authorizations that changed the
joint owner of one of his bank accounts. McCaffery Sr. died four days later.
¶6 Around the time of McCaffery Sr.’s death, his son, Hugh
McCaffery, Jr., observed several individuals removing some of McCaffery Sr.’s
personal property from the Farm, including firearms, computers and files.
McCaffery Jr. filed a report with the Rusk County Sheriff’s Office, alleging that
people had stolen his father’s personal property. However, the sheriff’s office
concluded that the dispute was a civil matter, and it declined to get involved.
Thereafter, additional items were removed from the Farm at the direction of Portal
Properties. Portal Properties eventually contracted with an auction service to sell
McCaffery Sr.’s remaining personal property on October 1, 2016.
¶7 Meanwhile, McCaffery Jr. petitioned for the administration of
McCaffery Sr.’s estate. McCaffery Jr. was later appointed as the personal
representative of the Estate after the circuit court found that McCaffery Sr.’s
November 2015 will was invalid, because two of the witnesses were beneficiaries
of the will. McCaffery Jr. then commenced an action on behalf of the Estate,
seeking the return of allegedly stolen personal property or, alternatively, the stolen
property’s cash value. The Estate voluntarily dismissed that case in 2019 after
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No. 2021AP715
some of the defendants, including Gilbert and Martin, were dismissed and the
Estate’s appeal of that decision was unsuccessful.
¶8 In October 2019, the Estate commenced this action. The Estate
alleged that Gilbert, Portal Properties, and Martin unlawfully disposed of, or took,
McCaffery Sr.’s personal property. In addition, the Estate claimed that Martin had
stolen money from McCaffery Sr.’s Fidelity investment account and Pennsylvania
State Employees Credit Union (PSECU) bank accounts. The Estate also alleged
that Gilbert had violated his “assurances” to McCaffery Sr. by selling the Farm in
2018. With respect to Roxanne, the Estate alleged that she had executed the deed
that transferred the Farm from Portal Properties to several individuals, including
Aiken, Thayer and the Sohpauls. The Estate also asserted claims against those
individuals, claiming they knew of the Estate’s claims “for fraud in the
inducement of the sale of the McCaffery Farm” and that their deed to the Farm
should be cancelled.
¶9 All of the defendants later filed motions to dismiss or, alternatively,
for summary judgment. At a hearing on those motions, the circuit court first
granted Aiken’s, Thayer’s and the Sohpauls’ motion for summary judgment. In
doing so, the court concluded that they were good faith purchasers of the Farm
and, as such, they could not be “divest[ed] … of their title to the property.” The
court also granted Martin’s motion for summary judgment, concluding that she did
not steal, convert or “otherwise fraudulently acquire[]” McCaffery Sr.’s personal
property or his financial accounts.
¶10 Next, the circuit court granted Roxanne’s motion for summary
judgment because it could not “find any allegations nor any evidence in the record
which seemed to indicate that Roxanne Garrett was responsible for any … fraud.”
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No. 2021AP715
Likewise, the court concluded that the complaint failed to adequately allege a
claim of fraud in the inducement against either Gilbert or Portal Properties, and the
court therefore granted summary judgment on those claims as well. The court also
granted Gilbert summary judgment on the Estate’s claim for the theft or
conversion of McCaffery Sr.’s personal property because the claim was barred by
collateral estoppel.5 The court determined, however, that the Estate could proceed
with its claim against Portal Properties regarding the ownership and disposal of
McCaffery Sr.’s personal property because there were genuine issues of material
fact as to the rightful owner of that property.
¶11 The Estate now appeals. Additional facts will be provided as
necessary below.
DISCUSSION
¶12 We review a circuit court’s summary judgment decision de novo,
employing the same methodology as the circuit court. Chapman v. B.C. Ziegler
& Co., 2013 WI App 127, ¶2, 351 Wis. 2d 123, 839 N.W.2d 425. Our
“[s]ummary-judgment analysis is a two-step process.” Id. First, we must
determine whether the complaint states “a proper claim for relief” and “whether
the answer disputes the facts that purport to underlie that claim.” Id. (citation
omitted). If the pleadings join issue on a proper claim for relief, we must then
5
Although the circuit court said “res judicata” during the hearing, the court’s written
order explained that summary judgment was granted on the basis of “collateral estoppel.” The
Estate also tailors its arguments on appeal to address collateral estoppel. Despite the parties’ and
the circuit court’s use of the terms “collateral estoppel” and “res judicata,” we will instead use the
terms “issue preclusion” and “claim preclusion,” respectively. See Kruckenberg v. Harvey, 2005
WI 43, ¶18 n.11, 279 Wis. 2d 520, 694 N.W.2d 879 (instructing that the term issue preclusion
should be used instead of collateral estoppel and that the term claim preclusion should be used
instead of res judicata).
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No. 2021AP715
determine “whether there are any genuine issues of disputed facts that are material
to the complaint’s claim.” Id.¶13 Summary judgment must be granted if “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 that the moving
party is entitled to a judgment as a matter of law.” WIS. STAT. § 802.08(2)
(2021-22).6 Inferences to be drawn from the summary judgment materials are
viewed in the light most favorable to the party opposing the motion. Lambrecht v.
Estate of Kaczmarczyk, 2001 WI 25, ¶23, 241 Wis. 2d 804, 623 N.W.2d 751.
I. Claims against Gilbert Garrett
A. Fraud in the inducement
¶14 The Estate argues that the circuit court erred by granting Gilbert
summary judgment on the Estate’s fraud in the inducement claim.7 The Estate
contends that its complaint “clearly states a claim for fraud in the inducement” and
that there are genuine issues of material fact as to the elements of that claim.8
6
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
7
As an initial matter, the Estate claims that the contract to sell the Farm is “void”
because Gilbert did not sign the contract, and, therefore, the contract did not satisfy the statute of
frauds. See WIS. STAT. § 706.02. As Gilbert correctly argues, however, there is “an exception to
the statute of frauds … where all parties have performed the contract, indicating their
acquiescence in its terms.” See Schaefer v. Schaefer, 72 Wis. 2d 600, 607, 241 N.W.2d 607(1976). Thus, the statute of frauds is not at issue in this case because McCaffery Sr. and his
brother conveyed the Farm and were paid the purchase price.
8
Although the Estate appeals the circuit court’s order granting Portal Properties partial
summary judgment, the Estate does not develop any argument challenging that decision. To the
extent the Estate is challenging that decision, we note that our analysis of the Estate’s fraud in the
inducement claim against Gilbert would also apply to Portal Properties.
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¶15 To state a claim for fraud in the inducement, a plaintiff must allege
that: (1) the defendant made a factual representation; (2) the factual representation
was untrue; (3) the defendant either made the representation knowing it was untrue
or made it recklessly without caring whether it was true or false; (4) the defendant
made the representation with intent to defraud and to induce another to act upon it;
(5) the plaintiff believed the statement to be true and relied on it to his or her
detriment; and (6) the untrue representation occurred before the formation of a
contract. See Kaloti Enters. v. Kellogg Sales Co., 2005 WI 111, ¶¶12, 30, 283
Wis. 2d 555, 699 N.W.2d 205. The plaintiff must also comply with the
heightened pleading standards in WIS. STAT. § 802.03(2). See Kaloti Enters., 283
Wis. 2d 555, ¶21.
¶16 WISCONSIN STAT. § 802.03(2) provides that “[i]n all averments of
fraud or mistake, the circumstances constituting fraud or mistake shall be stated
with particularity.” “[T]his statute requires that allegations of fraud specify the
particular individuals involved, where and when misrepresentations occurred, and
to whom the misrepresentations were made. In other words, ‘[p]articularity means
the who, what, when, where and how.’” Hinrichs v. DOW Chem. Co., 2020 WI
2, ¶73, 389 Wis. 2d 669, 937 N.W.2d 37 (second alteration in original; citations
omitted).
¶17 The Estate argues that the following allegations in its complaint “set
forth the essence of [its] fraud claim”:
11. That prior to September 24th, 2013[,] and pursuant to
Ishwar Puri’s and ISHA’s desire to construct a conference
center complex on the McCaffery Farm property as well as
the Dera Hall project across the road on other donated
McCaffery lands, defendant Gilbert Garrett entered into an
agreement for the purchase by [Gilbert] of the McCaffery
farm for less than half of its fair market value for the sum
of $110,200.00 dollars [sic]—conditioned on defendant
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No. 2021AP715
Gilbert Garrett’s assurances that the farm was being
purchased for Ishwar Puri and ISHA. The stipulations of
the agreement being:
(a) Garrett was to hold title to these lands as trustee for
ISHA until the $110,200.00 purchase price was repaid
to Garrett.
(b) That if ISHA followed through with [its]
commitments and paid back Gilbert Garrett, [a]ll the
land would then revert to ISHA.
(c) See Exhibit 8 hereto: An email quote by Jonathan
Rabkin of ISHA to Hugh F. McCaffery, Sr. This email
is titled[:] Disposition of H. McCaffery property dated
4/10/13.…[9]
….
18. That on or about June 1st, 2018[,] defendant Roxanne
Garrett executed a warranty deed from Portal Properties,
LLC, to six individuals, George Aiken, Wendy Thayer,
Harjit K. Sohpaul and Resham D. Sohpaul, and Hardev
Atwal and Elisabeth Martorana, consummating sale of the
McCaffery Farm at the purchase price of $240,000.00
dollars [sic], more than double the price paid to the
McCafferys in November of 2013, as set forth in Exhibit 14
attached hereto.
In addition, paragraph twenty-two of the complaint alleged
[t]hat upon information and belief, no part of the proceeds
of the sale of the McCaffery Farm … herein has been
tendered to Ishwar Puri or ISHA for its Dera project, or for
any other purpose, but instead has been retained in total by
defendant Gilbert Garrett for his own purposes.
9
Exhibit 8 was an email from Jonathan Rabkin to McCaffery Sr. asking McCaffery Sr.
to donate all of his land—i.e., the Farm—to ISHA. The email included several tentative
conditions for the proposed donation, including that McCaffery Sr. would sell no more than
twenty acres of his land to several individuals before he donated the land. The email, however,
did not discuss or provide any details regarding an agreement for Gilbert to purchase
McCaffery Sr.’s entire Farm.
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No. 2021AP715
¶18 We reject the Estate’s argument that these allegations are sufficient
to state a claim for fraud in the inducement. At a minimum, these allegations fail
to state—with particularity—where, when, or how the alleged misrepresentations
occurred. See id.; see also WIS. STAT. § 802.03(2). Indeed, the complaint is silent
about the location of where Gilbert made the alleged misrepresentations. The
complaint also fails to provide a particular time when Gilbert made the alleged
misrepresentations, merely stating that the alleged misrepresentations occurred
sometime “prior to September 24th, 2013.” The complaint fails to provide any
additional specificity or to narrow the incredibly broad range of time that occurred
“prior to” that date. Further, the complaint does not allege how Gilbert made the
alleged misrepresentations, such as whether the misrepresentations occurred in
person, by telephone, or in writing.
¶19 In addition to those deficiencies, the complaint failed to “generally”
allege any facts related to Gilbert’s mental state when making the alleged
misrepresentations. See WIS. STAT. § 802.03(2) (“Malice, intent, knowledge, and
other condition of mind of a person may be averred generally.”). For example, the
complaint did not allege that Gilbert either made any representations knowing they
were untrue or made them recklessly without caring whether they were true or
false. See Kaloti Enters., 283 Wis. 2d 555, ¶12. Similarly, the complaint failed to
allege that Gilbert made any representations with intent to defraud and to induce
McCaffery Sr. to act upon those representations. See id.¶20 We therefore conclude that the Estate failed to allege sufficient facts
with particularity to state a claim for fraud in the inducement against Gilbert. The
circuit court therefore did not err by granting Gilbert summary judgment on that
claim.
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B. Theft of personal property
¶21 The Estate next argues that the circuit court incorrectly applied issue
preclusion to the Estate’s claim against Gilbert for the theft or conversion of
McCaffery Sr.’s personal property. The Estate acknowledges that it previously
asserted a claim against Gilbert in Rusk County Circuit Court case
No. 2017CV106 regarding the disposition of McCaffery Sr.’s personal property.
But the Estate argues that the issue in that case was whether Gilbert had purchased
McCaffery Sr.’s personal property and that the court wrongly determined that
Gilbert should be dismissed from that prior case. The Estate therefore contends
that it “had no opportunity to litigate the personal property claim against Gilbert”
and that it would be fundamentally unfair to apply issue preclusion under these
circumstances.
¶22 “The doctrine of issue preclusion, formerly known as collateral
estoppel, is designed to limit the relitigation of issues that have been actually
litigated in a previous action.” Aldrich v. LIRC, 2012 WI 53, ¶88, 341 Wis. 2d
36, 814 N.W.2d 433. We employ a two-step analysis to determine whether issue
preclusion bars a subsequent claim. Munger v. Seehafer, 2016 WI App 89, ¶60,
372 Wis. 2d 749, 890 N.W.2d 22.
¶23 First, we must decide “whether the issue or fact was actually
litigated and determined in the prior proceeding by a valid judgment in a previous
action and whether the determination was essential to the judgment.” Aldrich, 341
Wis. 2d 36, ¶97 (citation omitted). “An issue is ‘actually litigated’ when it is
‘properly raised, by the pleadings or otherwise, and is submitted for determination,
and is determined.’” Randall v. Felt, 2002 WI App 157, ¶9, 256 Wis. 2d 563, 647
N.W.2d 373 (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 27 cmt. d (AM.
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No. 2021AP715
L. INST. 1980)). “An issue may be submitted and determined on a motion to
dismiss for failure to state a claim ….” Id., ¶9 n.4 (quoting RESTATEMENT
(SECOND) OF JUDGMENTS § 27 cmt. d (AM. L. INST. 1980)). This first step of the
analysis presents a question of law that we review de novo. Munger, 372 Wis. 2d
749, ¶60.
¶24 Second, we must decide whether applying issue preclusion comports
with principles of fundamental fairness. Aldrich, 341 Wis. 2d 36, ¶109. In doing
so, we may consider a variety of factors, including:
(1) could the party against whom preclusion is sought, as a
matter of law, have obtained review of the judgment; (2) is
the question one of law that involves two distinct claims or
intervening contextual shifts in the law; (3) do significant
differences in the quality or extensiveness of proceedings
between the two courts warrant relitigation of the issue;
(4) have the burdens of persuasion shifted such that the
party seeking preclusion had a lower burden of persuasion
in the first trial than in the second; or (5) are matters of
public policy and individual circumstances involved that
would render the application of [issue preclusion] to be
fundamentally unfair, including inadequate opportunity or
incentive to obtain a full and fair adjudication in the initial
action?
Cirilli v. Country Ins. & Fin. Servs., 2013 WI App 44, ¶8, 347 Wis. 2d 481, 830
N.W.2d 234 (citation omitted). A circuit court’s resolution of this second step is
reviewed for an erroneous exercise of discretion. Munger, 372 Wis. 2d 749, ¶60.
When a court fails to explain its reasoning, we may search the record to determine
whether it supports the court’s discretionary decision. West Capitol, Inc. v.
Village of Sister Bay, 2014 WI App 52, ¶52, 354 Wis. 2d 130, 848 N.W.2d 875.
¶25 In case No. 2017CV106, the Estate alleged that Gilbert stole
McCaffery Sr.’s personal property. Gilbert, in turn, filed a motion to dismiss that
claim, and the circuit court ultimately granted the motion, concluding:
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No. 2021AP715
The … deeds are to the LLCs. The LLCs are separate,
distinct, and independent legal entities. And, therefore,
because they were the purchasers of the real property
directly from [McCaffery Sr.] and [his brother] and then
from one LLC to the other, any rights that they may have in
the personal property, and I’m not making a decision as to
the rights in the personal property, but any rights that they
may have had to control and dispose of the personal
property … are their rights because they are acting … or
allegedly acting under that … offer to purchase. So I think
[Gilbert]’s motion to dismiss him individually is
appropriate. He is not the appropriate party. It is the LLCs
that have to be interposed in this action and pleaded, added,
something in this action in order to have the appropriate
parties. It is the LLCs that have to defend title to the
personal property, not [Gilbert] individually. So as to
[Gilbert] individually, I’m dismissing the complaint as to
him.
In other words, the court determined that Gilbert could not be held liable for the
alleged conversion or theft of McCaffery Sr.’s personal property. The court
subsequently issued an order dismissing the Estate’s claim against Gilbert.
Although the Estate initially filed a notice of appeal, this court dismissed that
appeal because the notice was not signed by an attorney licensed to practice law in
Wisconsin.
¶26 Based on these facts, we conclude that Gilbert’s alleged culpability
with respect to the theft and conversion of McCaffery Sr.’s personal property was
actually litigated in case No. 2017CV106. The Estate’s complaint raised the issue
of Gilbert’s culpability for theft and conversion of McCaffery Sr.’s personal
property, and Gilbert submitted that issue to the circuit court by filing a motion to
dismiss. See Randall, 256 Wis. 2d 563, ¶9 & n.4. The court resolved the issue by
determining, as a matter of law, that only “the LLCs” could be held liable for such
a claim, and this determination was essential to the circuit court’s order dismissing
the Estate’s claim against Gilbert. See Aldrich, 341 Wis. 2d 36, ¶97.
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No. 2021AP715
¶27 We also conclude, for the following reasons, that the circuit court’s
application of issue preclusion in this case comports with fundamental fairness.
First, the Estate had an opportunity to obtain review of the circuit court’s decision
in case No. 2017CV106. See Cirilli, 347 Wis. 2d 481, ¶8. Although the Estate’s
appeal was dismissed, the Estate never remedied the defect in its notice of appeal.
Second, the claim asserted in case No. 2017CV106 against Gilbert is the same as
the claim asserted in this appeal—both involve the alleged theft or conversion of
McCaffery Sr.’s personal property. See id. Third, both this case and the claim in
case No. 2017CV106 were litigated in Rusk County; therefore, there is no material
difference between the qualities of the courts in each case. See id. Fourth, the
burden of persuasion has not shifted or changed since the resolution of case
No. 2017CV106. See id. Fifth, the Estate had an adequate opportunity and
incentive to litigate the claim against Gilbert in case No. 2017CV106, including on
appeal. See id. The Estate might disagree with the court’s decision in case
No. 2017CV106, but it failed to obtain review of that decision on appeal or even
complete an attempt to do so.
¶28 We conclude that the circuit court correctly determined that Gilbert’s
liability for the theft or conversion of McCaffery Sr.’s personal property had been
actually litigated and determined in case No. 2017CV106, and the court did not
erroneously exercise its discretion by determining that the application of issue
preclusion comported with fundamental fairness. Thus, the court properly granted
summary judgment on the Estate’s theft and conversion claim against Gilbert.
II. Claim against Roxanne Garrett
¶29 The Estate also contends that circuit court erred by granting
summary judgment on its fraud claim against Roxanne. The Estate explains that
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No. 2021AP715
“Roxanne was named as a defendant because of her complicity in the fraud
perpetrated on [McCaffery Sr.]” The Estate notes that Roxanne was a member of
the LLC that purchased the Farm and that she executed the deed which transferred
the Farm to the subsequent owners in 2018.
¶30 For the same reasons the Estate failed to state a fraud claim against
Gilbert, we conclude that the Estate also failed to state a fraud claim against
Roxanne. The complaint alleged
[t]hat on or about June 1st, 2018 defendant Roxanne
Garrett executed a warranty deed from Portal Properties,
LLC, to six individuals, George Aiken, Wendy Thayer,
Harjit K. Sohpaul and Resham D. Sohpaul, and Hardev
Atwal and Elisabeth Martorana, consummating sale of the
McCaffery Farm at the purchase price of $240,000.00
dollars [sic], more than double the price paid to the
McCafferys in November of 2013, as set forth in Exhibit 14
attached hereto.
Other than several general allegations regarding Roxanne’s ownership interest in
the LLCs and her marriage to Gilbert, the complaint contains no other allegations
involving Roxanne. The complaint does not allege that Roxanne misrepresented
any fact, that she had any contact with McCaffery Sr., or that she knew about
Gilbert’s alleged “assurances” to McCaffery Sr. The complaint therefore fails to
plead any element of a fraud in the inducement claim against Roxanne, much less
plead those elements with particularity. See Kaloti Enters., 283 Wis. 2d 555,
¶¶12, 30; WIS. STAT. § 802.03(2).
¶31 The circuit court correctly determined that the Estate had failed to
state a claim upon which relief could be granted against Roxanne. As a result, the
court properly granted summary judgment in favor of Roxanne and dismissed her
from this case.
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No. 2021AP715
III. Claims against Martin
A. PSECU bank account
¶32 The Estate next argues that summary judgment was improperly
granted on its claim that Martin unlawfully obtained one of McCaffery Sr.’s
PSECU bank accounts.10 In doing so, the Estate appears to contend that
McCaffery Sr. was incompetent when conveying to Martin a joint-ownership
interest in the account on November 24, 2015. The Estate asserts that a fact finder
could infer that McCaffery Sr. was incompetent because McCaffery Sr. executed
the relevant documents four days before his death and while he was in hospice
care. The Estate also asserts that McCaffery Sr.’s incompetency can be inferred
from provisions in his November 24, 2015 will that “make no sense.” The Estate
points out that the will contained a trust for minor beneficiaries despite the will not
naming any minor beneficiaries. The Estate also points out that the will falsely
asserts that McCaffery Sr.’s brother owed McCaffery Sr. $80,000.
10
The Estate’s legal theory for this claim is not entirely clear and is woefully
undeveloped. The Estate does not cite any legal authority in support of its argument, nor does it
explain what elements it must prove.
In any event, we note that the Estate’s claim on appeal is narrower than the claims
alleged in the complaint. Although the Estate’s complaint seems to allege that Martin was
involved in the theft or conversion of McCaffery Sr.’s Fidelity investment account and both of his
PSECU bank accounts, the Estate’s arguments on appeal are limited to only one specific PSECU
bank account. Indeed, it is undisputed that McCaffery Sr.’s ex-wife was the primary beneficiary
of McCaffery Sr.’s Fidelity investment account and the co-owner of McCaffery Sr.’s other
PSECU bank account. We therefore will not address these other accounts further. The complaint
also alleged that Martin used a fraudulent will to obtain the PSECU bank account. The Estate
does not argue on appeal, however, that the PSECU bank account was transferred pursuant to the
November 2015 will. Rather, the Estate appears to acknowledge that Martin obtained ownership
of the account from the authorization form giving Martin a joint-ownership interest in the
account. Accordingly, we will not address the Estate’s allegation regarding the use of a
fraudulent will.
16
No. 2021AP715
¶33 Martin argues—and we agree—that the Estate has not shown any
genuine issue of material fact regarding McCaffery Sr.’s competency on
November 24, 2015. On that day, McCaffery Sr. signed an authorization
document in which he conveyed to Martin a joint-ownership interest in one of his
PSECU bank accounts—the account at issue in this appeal. A notary public
subsequently notarized that document. On the same day, McCaffery Sr. also
executed a will, which was signed by three witnesses who stated—after being
sworn by the notary public—that “[t]o the best of [their] knowledge,
[McCaffery Sr.] is 18 years of age or older, of sound mind and under no constraint
or undue influence.”11 Thus, a fact finder could reasonably infer that
McCaffery Sr. was competent at the time he gave Martin a joint-ownership
interest in the PSECU bank account.
¶34 None of the facts discussed by the Estate create a reasonable
inference that McCaffery Sr. was incompetent. Although McCaffery Sr. executed
the authorization document while in hospice care, the Estate has not put forth any
evidence showing that patients in hospice care are generally incompetent or that
McCaffery Sr., individually, exhibited signs of incompetency. Thus, a fact finder
could only speculate whether McCaffery Sr.’s hospice care suggested that he was
incompetent, which is not enough to avoid summary judgment. See Helland v.
Kurtis A. Froedtert Mem’l Lutheran Hosp., 229 Wis. 2d 751, 756, 601 N.W.2d
318 (Ct. App. 1999) (“It is not enough to rely upon unsubstantiated conclusory
11
Although this will was not admitted to probate because two of the witnesses were
beneficiaries in the will, the probate court did not find that the will was fraudulent, that
McCaffery Sr. lacked capacity, or that he was unduly influenced. In addition, there was at least
one disinterested witness who stated that McCaffery Sr. appeared to be “of sound mind.”
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No. 2021AP715
remarks, speculation, or testimony which is not based upon personal
knowledge.”).
¶35 Furthermore, a fact finder would not be able to infer that
McCaffery Sr. was incompetent based on the provisions in his November 24, 2015
will. That will included several unnecessary provisions related to a testamentary
trust for McCaffery Sr.’s minor beneficiaries, but nothing in the will suggests that
McCaffery Sr. actually believed that he had any minor beneficiaries. Rather, the
trust provisions appear to be standard, form language. In addition, the Estate has
not identified any record support for its conclusory claim that McCaffery Sr.’s
brother did not owe McCaffery Sr. $80,000. Therefore, a fact finder could not
reasonably infer that McCaffery Sr. was incompetent based on his will referencing
this debt.
¶36 In short, even viewed in a light most favorable to the Estate, none of
the facts identified by the Estate create a genuine issue of material fact regarding
McCaffery Sr.’s competency to give Martin a joint-ownership interest in his
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No. 2021AP715
PSECU bank account.12 Accordingly, the circuit court properly granted summary
judgment and dismissed this claim.13
B. Personal property
¶37 The Estate also argues that the circuit court improperly granted
summary judgment and dismissed its claim that Martin converted McCaffery Sr.’s
personal property after his death. The Estate points out Martin admitted that
between November 28, 2015, and September 27, 2016, “she did remove items of
personal property from the premises subject to this lawsuit.” The Estate further
argues that it did not need to prove that Martin had wrongful intent or bad faith
when removing the property.
¶38 In response, Martin argues that there are no genuine issues of
material fact regarding the Estate’s conversion of personal property claim.14
12
Even if one could infer that McCaffery Sr. was incompetent on November 24, 2015,
the Estate has not responded to Martin’s alternative argument that the Estate would not be entitled
to the PSECU bank account. Martin contends that McCaffery Sr.’s ex-wife—not the Estate—
would be entitled to the PSECU bank account in the event that McCaffery Sr. was incompetent
because McCaffery Sr. would have lacked competency to remove his ex-wife’s joint-ownership
interest in the account, which he did on the same day he granted Martin her joint-ownership
interest. Thus, McCaffery Sr.’s ex-wife would have owned the account after McCaffery Sr.
passed away. By failing to respond to this argument, the Estate concedes the validity of it. See
United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578(appellant’s failure to respond in reply brief to an argument made in response brief may be taken
as a concession).
13
The Estate argues in passing that Martin’s accounting of the PSECU bank account was
“somewhat sketchy and difficult to follow” and that Martin was engaged in the unauthorized
practice of law. These arguments, however, are undeveloped and need not be addressed. See
Pettit, 171 Wis. 2d at 646-47.
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No. 2021AP715
Martin acknowledges that she “remove[d]” personal property from the Farm
“between November 2015 and the fall of 2016,” but she argues that she “did so
with the belief that all of the personal property belonged to Gilbert … and/or
Portal Properties.” Martin also asserts that she “did not remove property so as to
‘take’ or ‘control’ it” but, rather, to “protect” the personal property, to “winterize”
the Farm, and to “prepare” the Farm for an incoming renter. She therefore
contends that the first element of conversion has not been met.
¶39 To establish the common law tort of conversion, the plaintiff must
prove: (1) that the defendant intentionally controlled or took property belonging
to the owner; (2) that the defendant controlled or took the property without the
owner’s consent or without lawful authority; and (3) that the defendant’s act with
respect to the property seriously interfered with the right of the owner to possess
the property. Estate of Miller v. Storey, 2017 WI 99, ¶40, 378 Wis. 2d 358, 903
N.W.2d 759 (citing WIS JI—CIVIL 2200 (2014)). For several reasons, we agree
with the Estate that the circuit court erred by granting Martin summary judgment
on the Estate’s conversion of personal property claim.
¶40 First, Martin does not argue on appeal that she undisputedly acted
with the consent of the personal property owner or with the lawful authority to
remove the personal property from the Farm. Indeed, the rightful owner of the
personal property has yet to be determined. As noted earlier, the circuit court
14
Martin also argues that the Estate has failed to develop a civil theft claim under WIS.
STAT. § 895.446(1). We agree. The Estate’s brief-in-chief primarily focuses on its conversion
claim against Martin, and it does not reference § 895.446(1) or any legal authority related to civil
theft. Although the Estate seems to suggest in its reply brief that a civil theft claim is supported
by the evidence, it again fails to develop an argument supporting that proposition. Accordingly,
we need not address this undeveloped argument. See Pettit, 171 Wis. 2d at 646-47.
20
No. 2021AP715
expressly denied Portal Properties’ motion for summary judgment on the Estate’s
claim regarding the ownership and disposition of the personal property. The court
explained:
there are enough material facts in dispute in the record by
which I am going to have to put the ownership of personal
property to the trier of fact to the jury in this case and see
who, in fact, the title owner is and if there are any damages
for the disposition of the personal property.
Thus, we cannot—nor could the circuit court—determine, as a matter of law,
whether Martin acted with the consent of the personal property owner or whether
the Estate could establish the second element of conversion.
¶41 Second, Martin’s “belief that all of the personal property belonged to
Gilbert … and/or Portal Properties” is not a defense to a conversion claim. Unlike
a statutory civil theft claim, a conversion claim does not require that the
“defendant knew that the owner did not consent.” Id. (citation omitted); see also
WIS JI—CIVIL 2200 (2014). “Thus, a person may be liable for conversion where
the person has exercised control over property even though he or she may be
unaware of the existence of the rights with which he or she interferes.” Methodist
Manor Health Ctr. v. Py, 2008 WI App 31, ¶14, 307 Wis. 2d 501, 746 N.W.2d
824 (citation omitted).
¶42 Third, the fact that Martin might have acted on behalf of Portal
Properties or Gilbert is also not a defense to a conversion claim.
Under well-established Wisconsin law, “an agent who does
an act that would be a tort if he [or she] were not then
acting as an agent for another is not relieved from liability
to an injured third party, simply because he [or she] was
acting as an agent when he [or she] caused the injury.”
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No. 2021AP715
Shister v. Patel, 2009 WI App 163, ¶15, 322 Wis. 2d 222, 776 N.W.2d 632(alterations in original) (quoting Ramsden v. Farm Credit Servs. of N. Cent. Wis.
ACA, 223 Wis. 2d 704, 715, 590 N.W.2d 1 (Ct. App. 1998)); see also
RESTATEMENT (THIRD) OF AGENCY § 7.01 (AM. L. INST. 2006). Accordingly,
Martin could be held liable even if she was acting on behalf of Portal Properties or
Gilbert.
¶43 Fourth, a fact finder could reasonably find or infer that Martin
“controlled” or “took” property belonging to the owner. See Estate of Miller, 378
Wis. 2d 358, ¶40. Again, it is undisputed that Martin removed personal property
from the Farm “between November 2015 and the fall of 2016.” In particular,
McCaffery Jr. averred in his affidavit opposing Martin’s motion for summary
judgment that Martin removed firearms, computers and files. Although Martin
appears to suggest that the first element of conversion cannot be established if she
did not retain control of, or a benefit from, the property, the elements of a
conversion claim do not impose those requirements. See id. Thus, a fact finder
could find that by removing personal property from the Farm, Martin—for some
period of time—“controlled” or “took” the property. See id.¶44 Fifth, and finally, Martin does not argue on appeal that her conduct
did not seriously interfere with the right of the owner to possess the personal
property. See id. Although Martin points out that three guns were delivered to the
Rusk County Sheriff’s Office in June 2017—roughly one and one-half years after
they were taken from the Farm—she does not argue or suggest that her
involvement in removing the guns did not seriously interfere with the Estate’s
right to possess them. In the absence of any additional facts or argument, and
viewing this evidence in the light most favorable to the Estate, a fact finder could
reasonably find that Martin’s removal of the guns seriously interfered with the
22
No. 2021AP715
Estate’s ability to possess them. Furthermore, Martin does not argue or suggest
that her removal of other property, such as the computers and files, did not
seriously interfere with the Estate’s ability to possess that property.
¶45 In short, summary judgment should not have been granted on the
Estate’s conversion of personal property claim against Martin. The owner of the
personal property has yet to be determined, and a fact finder could reasonably find
or infer—based on the present record—that each element of a conversion claim
has been met. We therefore reverse the circuit court’s grant of summary judgment
on this claim and remand for further proceedings.15
IV. Claims against Aiken, Thayer, and the Sohpauls
¶46 Finally, the Estate argues that the circuit court improperly granted
summary judgment in favor of Aiken, Thayer, and the Sohpauls—the subsequent
owners of the Farm. The Estate contends that there are genuine issues of material
fact regarding whether these parties had notice of the Estate’s fraud claims when
they purchased the Farm in 2018. Thus, the Estate asserts that it should be
allowed to proceed on its claim, which seeks to “cancel[]” the deed that transferred
the Farm to the subsequent owners.
15
Martin argues in the alternative that we must affirm the grant of summary judgment
because the Estate failed to include necessary and “indispensable parties” in this lawsuit. Martin
observes that the Estate identified “numerous individuals” who “also removed personal property
from the [Farm]” but were not named as defendants in the complaint. Martin, however, does not
explain how these parties are necessary or indispensable to this lawsuit, nor does she cite any
legal authority supporting her assertion that summary judgment could be granted based on the
Estate’s failure to include these parties in this lawsuit. Thus, we need not consider this
undeveloped argument. See Pettit, 171 Wis. 2d at 646-47.
23
No. 2021AP715
¶47 In response, the subsequent owners argue that the circuit court
correctly granted summary judgment on the Estate’s claim against them because
the Estate’s complaint failed to allege a fraud claim against any party. The
subsequent owners therefore contend that the Estate cannot maintain its claim
against them because that claim is predicated on the existence of fraud.
¶48 We agree with the subsequent owners of the Farm. The Estate’s
claim seeking to cancel the deed to the subsequent owners is based entirely on the
fact that the subsequent owners were aware of the Estate’s fraud claims before
purchasing the Farm. Thus, to prevail on that claim, the Estate must first show
that McCaffery Sr. was fraudulently induced into selling the Farm. For the
reasons discussed above, however, the Estate has failed to plead a claim of fraud
in the inducement with particularity against either Gilbert, Roxanne, or Portal
Properties. As a result, it has also failed to state a claim upon which relief can be
granted against the subsequent owners of the Farm. The circuit court therefore
properly granted the subsequent owners’ motion for summary judgment.
¶49 No costs awarded to any party.
By the Court.—Judgments affirmed in part; reversed in part and
cause remanded for further proceedings.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
24