DocketNumber: 2017AP000170
Citation Numbers: 928 N.W.2d 502, 386 Wis. 2d 757, 2019 WI 56
Judges: Kelly, Ziegler, Bradley
Filed Date: 5/23/2019
Status: Precedential
Modified Date: 10/19/2024
*764¶1 In a vigorous dispute over the distribution of Donald and Betty Lou Tikalsky's estate, J. Steven Tikalsky sued his sister, Terry Stevens, to obtain part of the inheritance she received from their parents. His Complaint contains a count labeled "constructive trust," which he deployed against his sister as a cause of action. Terry Stevens asks us whether a "constructive trust" may play that role, and whether it may be used against those who have engaged *765in no inequitable behavior. We hold that a constructive trust is a remedy, not a cause of action. We also hold that, under the proper circumstances, a constructive *506trust may be imposed on property in the possession of one who is wholly innocent of any inequitable conduct. But because the Complaint in this case does not state a cause of action against Terry Stevens, nor assert any other grounds upon which a constructive trust could be imposed, the circuit court properly dismissed her from the case with prejudice. We reverse the court of appeals' decision reversing the circuit court.
I. BACKGROUND
¶2 Donald and Betty Lou Tikalsky (jointly, the "Tikalskys," and individually, "Mr. Tikalsky" and "Mrs. Tikalsky," respectively) jointly developed an estate plan that included the "Donald J. Tikalsky and Betty Lou Tikalsky Revocable Trust dated January 15, 1999" (the "1999 Trust"), as well as two associated wills (the "Wills"). The 1999 Trust and Wills provided that, when the Tikalskys had both passed, the bulk of their estate would be divided equally between their four children: J. Steven Tikalsky ("Steven"); Susan Friedman ("Susan"); Terry Stevens ("Terry"); and James Tikalsky ("James").
¶3 A few years after execution of the 1999 Trust and Wills, the relationship between Steven and his parents started deteriorating. Eventually, they became *766estranged. A succession of amendments to the estate planning documents followed. In 2007, the Tikalskys executed the "Donald J. Tikalsky and Betty Lou Tikalsky Revocable Trust" (the "2007 Trust") as a replacement for the 1999 Trust.
¶4 Steven believes two of his siblings, Susan and James, wrongfully caused his estrangement from his parents and his subsequent disinheritance. His Complaint seeking redress for the latter injury named not just Susan and James as defendants, but Terry as well.
¶5 After his siblings moved for summary judgment, Steven voluntarily dismissed five of the Complaint's nine counts and acknowledged that "punitive damages" is not a cause of action.
*768143. The funds that constituted a one-quarter share in Donald and Betty Lou's joint estate plan and were converted from Steven to the defendants were at all times after the conversion held by the defendants in constructive trust for Steven.
144. Steven therefore now holds a beneficial property interest in all funds converted by the defendants. To the extent that the defendants spent or otherwise disposed of funds since the conversion beginning in or around April 8, 2009, a legal presumption exists that the funds spent came from monies other than those funds converted, and that any assets now in the defendants' possession are the subject of Steven's constructive trust to the maximum extent. In addition, the converted funds remain in constructive trust in the hands of all persons who knew or had reason to know the funds were converted.
¶6 The circuit court granted summary judgment against Steven on counts two (undue influence) and nine (constructive trust). With respect to dismissal of the claim for constructive trust, the circuit court said:
Plaintiff Steven urges the Court to keep the constructive trust cause of action because the defendants were unjustly enriched and he is, therefore, entitled to the equitable remedy of a constructive trust. But as just noted by the Defendants, Plaintiff Steven voluntarily dismissed his unjust enrichment cause of action. So accordingly this cause of action for constructive trust is unsupported. Summary judgment dismissing this cause of action is granted.
¶7 The circuit court denied the summary judgment motion with respect to count three (intentional interference with expected *508inheritance), which left this as the sole remaining claim in the case. Because this count asserted nothing against Terry, the circuit court *769dismissed her from the lawsuit with prejudice. The order of dismissal was final as to Terry, and Steven appealed in due course.
¶8 Steven named Terry as the only respondent; neither of his other siblings participated in the appeal in any capacity. The sole issue he presented to the court of appeals was the circuit court's dismissal of count nine (constructive trust) as against Terry. The "Statement Of The Issue" in his opening brief asked: "Did the trial court err in dismissing Steven Tikalsky's cause of action seeking to impose a constructive trust on inheritance alleged to be wrongfully distributed to the defendant Terry Stevens, on the basis that Steven Tikalsky previously dismissed his cause of action for unjust enrichment?" The circuit court did err, the court of appeals said. Although the cause of action for unjust enrichment was gone, the court of appeals concluded that Steven had nevertheless "presented enough material on summary judgment to continue seeking a constructive trust." Tikalsky v. Stevens, No. 2017AP170, unpublished slip op., ¶2,
¶9 We granted Terry's petition for review and now reverse the court of appeals.
*770II. STANDARD OF REVIEW
¶10 We review the disposition of a motion for summary judgment de novo, applying the same methodology the circuit courts apply. Green Spring Farms v. Kersten,
¶11 "The first step of that [summary judgment] methodology requires the court to examine the pleadings to determine whether a claim for relief has been stated." Green Spring Farms,
¶12 Under the second step of this methodology, "[i]f a claim for relief has been stated, the inquiry then shifts to whether any factual issues exist."
III. ANALYSIS
¶13 Terry says the circuit court correctly dismissed her from the case because the Complaint's only claim against her was for a constructive trust. This is a remedy, not a cause of action, she says, and the former may not be imposed in the absence of the latter. Steven says a constructive trust's legal taxonomy is of no moment; all that matters is whether the facts presented at summary judgment justify its imposition. The court of appeals agreed: "Though the parties spend considerable time debating whether constructive trust should be labeled a cause of action or a remedy, the answer to that question is largely immaterial." Tikalsky, 2017AP170, unpublished slip op., ¶7.
¶14 At the most basic level, Steven and the court of appeals are right. A complaint's success does not depend on accurate labeling. When we "examine the pleadings to determine whether a claim for relief has been stated," Green Spring Farms,
¶15 While Steven is right about our responsibility to look past labels, that does not mean we may treat causes of action and remedies as if they were the same thing. It just means we do not depend on the complaint to properly label the claims or to marshal the supporting facts into a logically cogent grouping. Even as we look past such formalities, we still distinguish between causes of action and remedies: "A cause of action is distinguished from a remedy which is the means or method whereby the cause of action is effectuated." Goetz v. State Farm Mut. Auto Ins. Co.,
*510*773¶16 The distinction is important, especially at the summary judgment stage, because the court must determine whether the alleged facts comprise one or more causes of action. The substantive law governing a cause of action tells us what types of facts a plaintiff must allege. If the facts satisfy all of the constitutive elements of the claim, then the complaint has stated a good cause of action and the analysis may proceed to the second step in the summary judgment methodology:
To state a claim upon which relief may be granted, the plaintiff's allegations must be informed by the theory of liability: "In sum, Twombly [12 ] makes clear the sufficiency of a complaint depends on [the] substantive law that underlies the claim made because it is the substantive law that drives what facts must be pled. Plaintiffs must allege facts that plausibly suggest they are entitled to relief."
Springer v. Nohl Elec. Prod. Corp.,
*774which will be enforced by the courts." (citation and some internal marks omitted)). The cause of action is important, therefore, because it is the standard against which we measure the sufficiency of the complaint's factual allegations.
¶17 As we assay Steven's Complaint for a cause of action, we will proceed in two steps. First, we will determine whether "constructive trust" is a cause of action or, instead, a remedy. Second, we will review Steven's Complaint to determine whether the alleged facts, without regard to the labels, comprise a cause of action against Terry. The first step is necessary because if "constructive trust" is a cause of action, we need to identify its substantive elements so that, in the second step, we may determine whether the alleged facts satisfy its terms. If "constructive trust" is not a cause of action, however, then we must determine whether the Complaint nonetheless alleges a set of facts that comprises some other cause of action that might warrant imposition of a constructive trust on property in Terry's possession.
A. "Constructive Trust" Is A Remedy
¶18 Our first step begins with a brief word about the nature of constructive trusts. This will not only help illuminate its essential function (remedy versus cause of action), it will also lay the groundwork for understanding the circumstances in which it is available as against innocent owners. Conceptually, a constructive trust is an equitable device used to address situations in which the legal and beneficial interests in a particular piece of property lie with different people. Under proper circumstances-more about that later-the beneficial owner may ask the *775court to impose a constructive trust on the property. Hanson v. Valdivia,
¶20 We commonly say that "[a] constructive trust is imposed by a court of equity to prevent unjust enrichment arising when one party receives a benefit the retention of which would be unjust as against the other." Prince v. Bryant,
¶21 As an aside, it is important to note that although proving unjust enrichment means the plaintiff is entitled to a remedy, it does not necessarily entitle him to this remedy. After establishing unjust enrichment, the plaintiff must next demonstrate that a constructive trust is warranted. "A constructive trust will be imposed only in limited circumstances." Wilharms v. Wilharms,
*778Despite the suggestion of this rule[15 ] that unjust enrichment alone will give rise to a constructive trust, however, the decisions of this court have consistently required an additional showing. A constructive trust will be imposed only where, by means of "... actual or constructive fraud, duress, abuse of confidence, mistake, commission of a wrong, or by any form of unconscionable conduct," the one against whom the trust is imposed "has either obtained or holds the legal title to property which he ought not in equity and in good conscience beneficially enjoy ... [.]"
Gorski v. Gorski,
¶22 We recognize we have not been entirely consistent in identifying a *513constructive trust as a remedy. Certainly, there have been times that we have explicitly recognized it as such. See, e.g., Prince,
¶23 Conceptually, there are two potential paths by which a person may pursue a constructive trust against property in another's possession. First, the plaintiff may directly assert a claim against the defendant (as described above) claiming she has been unjustly enriched and that the circumstances by which the unjust enrichment arose satisfy the "additional showing" described by Gorski. Or second, the plaintiff may prove that the defendant came into possession of property that was already burdened with a constructive trust.
¶24 Once a constructive trust exists, it travels with the property to which it attaches. So, as long as the plaintiff can trace the property from one person to the next, he may have this remedy until the property comes into the hands of a bona fide purchaser for value and without notice of the claim:
[E]quity impresses a constructive trust upon the new form or species of property, not only while it is in the hands of the original wrongdoer, but as long as it can *781be followed and identified in whosesoever hands it may come, except into those of a bona fide purchaser for value and without notice ....
Warsco,
C. Steven's Complaint
¶25 Armed with these principles, we are now ready to scrutinize Steven's Complaint for a cause of action capable of implicating the property in Terry's possession. As we discussed above, we will not be captured by labels as we do so, but neither will we rewrite Steven's Complaint. He is the master of his pleadings. Nor will we countermand his strategic calculations, such as his affirmative decision to dismiss certain causes of action. It is not for us to resurrect what he has let go. We will consider the Complaint from two perspectives. First, we will determine whether it pleads a cause of action directly against Terry. Second, we will consider whether it pleads a cause of action against one *782of her siblings that could potentially call into question her ownership of the inheritance she received from her parents.
1. Claims Against Terry
¶26 We begin by determining whether the Complaint states a cause of action against Terry. As filed, two sections of the Complaint made allegations that relate to her potential liability to Steven. In one of them, the Complaint claimed Terry had been unjustly enriched as a consequence of her siblings' representations and conduct, the result of which was that she received one-third of her parents' estates instead of one-quarter (count six-unjust enrichment). As we described above, unjust enrichment is the cause of action for which a constructive trust is a potentially available remedy. However, we are analyzing the Complaint not as it was filed, but as it was presented to the circuit court on the defendants' motion for summary judgment. In response to that motion, Steven explicitly dismissed his unjust enrichment claim against all of the defendants.
*783¶27 The other section of the Complaint containing factual allegations against Terry is count nine (constructive trust). There, the Complaint says "the defendants" converted Steven's one-quarter share of their parents' estates, such that each of them should be considered to be holding Steven's share of the inheritance as a constructive trust (count nine). Because we construe pleadings liberally in the first step of the summary judgment methodology, we will understand Steven's reference *515to "defendants" to assert that Terry, as well as Susan and James, converted his share of the inheritance.
2. Claims Against Others That Might Implicate Terry
¶29 The two remaining claims presented to the circuit court on summary judgment were count two (undue influence) and count three (intentional interference with expected inheritance). The circuit court dismissed count two, and Steven did not challenge that decision either in the court of appeals or here. So the only remaining cause of action for us to consider is for "intentional interference with expected inheritance." In this section of his Complaint, Steven alleged that:
Susan and James intentionally interfered with Steven's expected inheritance through the exercise of undue influence on Donald and Betty Lou and other bad faith conduct, including the orchestration of the preparation and execution of the Last Will and Testament of Donald J. Tikalsky and the Amended and Restated Donald J. Tikalsky and Betty Lou Tikalsky Revocable Trust dated April 8, 2009, along with any other legal documents prepared for and executed by either Donald or Betty Lou on, about or subsequent to that date.
He also alleged that "[b]ut not [sic] for Susan and James' conduct described above, Donald and Betty Lou would have left a legacy to Steven equal to that of the legacy left to each of their other three issue."
*516*785¶30 So Steven's challenge here is to explain how the allegations in his "intentional interference" claim can provide a vehicle by which he can reach property in Terry's possession.
¶31 Our opinion in Richards provides a good illustration of the situations that call for constructive *786trusts on property in the hands of innocent beneficiaries. Richards,
¶32 The general rule we gleaned from this was that " '[w]here a person holding property transfers it to another in violation of his duty to a third person, the third person can reach the property in the hands of the transferee (by means of a constructive trust) unless the transferee is a bona fide purchaser.' "
¶33 Steven's Complaint does not fit this pattern. The Richards rule contemplates the owners of the property conveying it to an innocent beneficiary in violation of a duty to transfer it to the plaintiff. Steven imagines himself to be in the place of the person to whom the duty is owed, while Terry stands in for the innocent beneficiary. Steven's Complaint does not describe a Richards scenario because it was the Tikalskys, not Susan and James, who transferred the property in question to Terry. And the Tikalskys owed Steven no duty to make him a beneficiary of their estates. See Bautista, 58 Wis. 2d at 229,
3. The Dissents
a. Chief Justice Roggensack
¶34 Chief Justice Roggensack, however, believes there is a path we can follow from the Complaint's allegations all the way to a constructive trust over property in Terry's hands. She says "a constructive trust is an appropriate remedy if Susan, James and Terry have converted property from their parents' estate that would have been devised to Steven but for wrongful influence over Donald and Betty Lou." Chief Justice Roggensack's dissent, ¶68. According to the Chief's formulation, the Complaint would need to allege facts sufficient to support two torts, to wit, conversion and undue influence. On the state of the record before us, it does not.
¶35 With respect to the tort of conversion, the Chief's dissent says "Steven claims Terry converted property to her own use that should have been devised to him." Id., ¶77. And it faults Terry for not having rebutted that allegation in the summary judgment proceedings:
*789Although Terry's answer denies the factual allegations and legal claims made in Steven's complaint, she makes no evidentiary offer of proof by affidavit or otherwise sufficient to show a prima facie case for summary judgment dismissing Steven's claim against her for possession and subsequent conversion of property that should have belonged to him.
Id., ¶78. Steven, of course, dismissed his conversion claim. The dissent, surprisingly, believes this was a non-event. It says the *518"majority opinion mistakenly concludes that 'Steven voluntarily dismissed' his allegations of wrongful possession that led to conversion of the property." Id., ¶78 n.13. "That," it says, "never happened." Id. The record begs to differ. Steven's response to the defendants' motion for summary judgment said: "Plaintiff voluntarily dismisses his Fourth Claim for Relief for Common Law Conversion/Fraud." That seems pretty definitive. But perhaps the dissent means to say that the voluntary dismissal was merely a representation that Steven would no longer assert that the alleged facts add up to a conversion. If that is what the dissent meant, it did not follow through with its own understanding of what Steven said. At every step of the analysis, the dissent relied on the viability of a conversion claim.
¶36 The second tort necessary to the dissent's analysis is "undue influence." But the circuit court granted Terry summary judgment with respect to this claim, and entered a final order dismissing all claims against her with prejudice. Steven has not appealed the circuit court's ruling on this claim. The dissent, however, says we may ignore the circuit court's decision, as well as Steven's failure to appeal it:
The dismissal was not a final judgment with regard to Susan and James or Steven; therefore, Steven had no right to appeal its dismissal, and he could not bring it to us.Wis. Stat. § 808.03 . The majority opinion errs when it relies on Steven's not appealing the dismissal of his claim for undue influence and states that the *791"only remaining cause of action" is the claim of intentional interference with expected inheritance.
Chief Justice Roggensack's dissent, ¶67 n.10.
¶37 The dissent is correct that the dismissal was not final "with regard to Susan and James," but we are not interested in the status of the claim as against them. We are interested in its status with respect to Terry. The circuit court thought the claim lacked merit, and the judgment dismissing *519Terry from the case made that conclusion final as between her and Steven. Specifically, if proven, this the circuit court said "[t]he defendants' motion for summary judgment as to the Second Claim for Relief asserted in the plaintiffs' complaint, for undue influence is hereby GRANTED, and that cause of action is hereby dismissed, with prejudice." The subsequent judgment made it clear the disposition was final as between Terry and Steven: "All claims asserted by the plaintiff, J. Steven Tikalsky, against the defendant, Terry Stevens, are hereby dismissed, with prejudice." It concluded with the admonition that "[t]his Judgment is final for purposes of appeal."
¶38 It is an unremarkable precept in our rules of procedure that a party who does not raise an appealable issue before the appropriate appellate tribunal forfeits it. See, e.g., Yakus v. United States,
b. Justice Ann Walsh Bradley
¶39 Justice Ann Walsh Bradley also believes there is a path from the Complaint's allegations to a constructive trust over property in Terry's possession, although it *520is different from the one chosen by Chief Justice Roggensack. Justice Bradley settled on count 3-intentional interference with expected inheritance. Unlike count 2 (undue influence) and count 4 (conversion), this is at least a live claim inasmuch as neither Steven nor the circuit court dismissed it. It is not, however, capable of supporting imposition of a constructive trust.
¶40 The dissent largely adopts the court of appeals' understanding that successfully proving count 3 would satisfy the requirements for imposing a constructive trust. "With respect to the first element of a constructive trust," the court of appeals said, "Steven's allegations and supporting evidence raise material facts tending to show that his siblings hold title to property that equity dictates should go to him." Tikalsky, 2017AP170, unpublished slip op., ¶14. Therefore, " '[i]f proven, this claim would establish that all three siblings (including Terry) were unjustly enriched by an inheritance that would have gone-at least in part-to Steven.' " Justice Ann Walsh Bradley dissent, ¶86 (emphasis in original).
*794¶41 But that does not follow at all. Proof of count 3 means that Susan and James, not Terry, are liable to Steven. No principle of equity so much as even hints that proving such a claim would make anyone other than the tortfeasor responsible to the victim. Tortfeasors are liable for their own torts, not their non-tortfeasor siblings. "It is a basic principle of law, as well as common sense, that one is typically liable only for his or her own acts, not the acts of others." Lewis v. Physicians Ins. Co. of Wisconsin,
*795¶42 The dissent and court of appeals disagree. They would make Terry-a non-tortfeasor-liable to Steven for the torts of Susan and James through the expedient of imposing a constructive trust on property in Terry's possession. But they do not describe the mechanism by which Terry could be held liable for James and Susan's torts. Nor could they. In the absence of a claim of unjust enrichment, the only other basis for a constructive trust is the transfer of property to an innocent beneficiary in violation of a duty to transfer it to the plaintiff, as described in Richards. Even Wilharms, upon which both the dissent and the court of appeals relied, recognized this. In Wilharms, a husband changed the beneficiary of a life insurance *521policy contrary to a court order. The Wilharms court quoted Richards for the controlling principle: " 'Where a person holding property transfers it to another in violation of his duty to a third person, the third person can reach the property in the hands of the transferee (by means of a constructive trust) unless the transferee is a bona fide purchaser.' " Wilharms,
¶44 We hold that a constructive trust is not a cause of action and that Steven's Complaint does not state a claim for relief against Terry. Therefore, the circuit court did not err when it dismissed her from the case with prejudice.
By the Court. -The decision of the court of appeals is reversed.
JUSTICES:
CONCURRED: ZIEGLER, J. concurs (opinion filed).
DISSENTED: ROGGENSACK, C.J. dissents (opinion filed). A.W. BRADLEY, J. dissents, joined by ABRAHAMSON, J. (opinion filed).
This is a review of an unpublished opinion of the Wisconsin Court of Appeals, Tikalsky v. Stevens, No. 2017AP170, unpublished slip op.,
Although referring to Mr. and Mrs. Tikalsky's children by their first names would ordinarily suggest an unwarranted familiarity, we do so here purely for the sake of clarity.
While we generally cite from revisions to the Tikalskys' various trust documents, the Tikalskys also had executed individual wills. Our references to the Tikalskys' estate planning documents encompass their respective wills and trust documents unless context necessitates otherwise.
Prior to the 2008 revision, the 2007 Trust provided that Steven would receive certain effects from Mr. Tikalsky's law office under certain circumstances.
The Complaint also identifies the "Amended and Restated Donald J. Tikalsky and Betty Lou Tikalsky Revocable Trust by Susan Friedman a/k/a Tikalsky, Trustee" as a defendant in this action. Steven filed an Amended Complaint, but it merely incorporates the original Complaint by reference. Consequently, the Amended Complaint comprises only new allegations and such paragraphs from the original that it amends, none of which are relevant to the matters we discuss here. Therefore, we will refer only to the original Complaint in this opinion.
All subsequent references to the Wisconsin Statutes are to the 2015-16 version unless otherwise indicated.
Specifically, Steven voluntarily dismissed the following causes of action: (1) declaratory judgment regarding the Tikalskys' lack of testamentary capacity; (4) common law conversion/fraud; (5) statutory theft; (6) unjust enrichment; and (7) civil conspiracy.
Count three (intentional interference with expected inheritance) remains pending in the circuit court against Susan and James.
Our cases at various times have referred to "causes of action," "claims for relief," "theories of recovery," and "theories of liability." The terms are interchangeable.
This is not to say that labels cannot be helpful. Artfully drafted complaints are often organized and divided into conceptually distinct sections (e.g., "Parties," "Background Facts," "Causes of Action," etc.). Labeling the sections, as well as each individual cause of action, provides the court with convenient navigational markers.
See also Bernstein v. Bankert,
Bell Atlantic Corp. v. Twombly,
Black's Law Dictionary defines "cestui que trust" as "[s]omeone who possesses equitable rights in property, usu[ally] receiving the rents, issues, and profits from it; beneficiary."Cestui Que Trust, Black's Law Dictionary (10th ed. 2014).
Quoting 3 Pomeroy, Equity Jurisprudence (4th Ed.) pp. 2397-2401.
Restatement (First) of Restitution § 160 (1937).
Schmalz v. McKenna,
Over 30 jurisdictions recognize that a constructive trust is a remedy. See, e.g., Freeland v. IRS,
Steven's brief in response to the defendants' motion for summary judgment said: "Plaintiff voluntarily dismisses his Sixth Claim for Relief for Unjust Enrichment." There was good reason for doing so. The first element of an unjust enrichment claim requires "a benefit conferred on the defendant by the plaintiff ...." Sands v. Menard,
See
Steven's brief in response to the motion for summary judgment said: "Plaintiff voluntarily dismisses his Fourth Claim for Relief for Common Law Conversion/Fraud."
Although this cause of action survived summary judgment, the same cannot be said with respect to all of the supporting allegations. The circuit court concluded that the defendants had nothing to do with the "orchestration and preparation" of the Tikalskys' estate planning documents. Specifically, it said that Steven presented no evidence "that the defendants were involved in any way in the preparation or arrangement of the 2007, 2008, or 2009 wills or revocable trusts." And it noted that it was undisputed that the defendants knew nothing of the Tikalskys' decision to disinherit Steven, or anything about the changes to their estate planning documents (prior to Mr. Tikalsky's death) to accomplish that objective.
Chief Justice Roggensack's dissent claims the circuit court's conclusions were erroneous, but she offers no support for that assertion other than a vague observation that "[a]ll one has to do is review the record to learn that Steven had a story to tell that is the opposite of what his sisters and brother told." Chief Justice Roggensack's dissent, ¶80. That may be true in gross, but it is incorrect in fine. The parts of the record cited by the dissent have nothing at all to do with what the circuit court said about the lack of evidence proffered by Steven. If the record contains evidence that contradicts the circuit court, neither the dissent nor Steven has found it.
Although "intentional interference with expected inheritance" is a tort, we examine the claim without reference to how Steven labeled it. The purpose of our review is to determine whether the alleged facts could be understood as making a claim of unjust enrichment that could potentially support imposition of a constructive trust on property in Terry's possession.
See, e.g., Chief Justice Roggensack's dissent, ¶73 ("The complaint alleges that '[t]he funds that constituted a one-quarter share in Donald and Betty Lou's joint estate plan and were converted from Steven to the defendants were at all times after the conversion held by the defendants in constructive trust for Steven.' " (emphasis added));
Resolution of the undue influence claim is not final with respect to Susan and James, of course, because there are still matters pending in the circuit court between them and Steven.
"[T]he issues before the court are the issues presented in the petition for review and not discrete arguments that may be made, pro or con, in the disposition of an issue either by counsel or by the court." State v. Weber,
This is consistent with how the tort of intentional interference with expected inheritance was formulated in Harris v. Kritzik,
The dissent says Wilharms v. Wilharms,
Because there can be no constructive trust in the absence of a good cause of action, the dissent's analysis is flawed. The dissent acknowledges there are no remaining claims against Terry. Justice Ann Walsh Bradley dissent, ¶83 n.2. And it does not address how the Tikalskys' decision to disinherit Steven is comparable to Dennis Wilharms' decision to name a new life insurance beneficiary. Because it was Mr. Wilharms' violation of a duty that potentially gave rise to a claim of unjust enrichment, the dissent must identify a correlative duty here. But the Tikalskys were under no obligation to make Steven an heir, so disinheriting him violated no duty. Contrary to the dissent's argument, therefore, Wilharms does not say a constructive trust can be imposed in this case because there has been no violated duty. So Wilharms can provide no succor for the dissent's belief in a self-animating constructive trust.