                                                      2017 WI 110

                  SUPREME COURT       OF   WISCONSIN
CASE NO.:            2012AP2377 & 2015AP870
COMPLETE TITLE:      Debra K. Sands,
                               Plaintiff-Appellant-Petitioner,
                           v.
                     John R. Menard, Jr., Menard Thoroughbreds, Inc.,
                     Webster Hart as Trustee of the John R. Menard,
                     Jr. 2002 Trust and Related Trusts, Angela L.
                     Bowe as Trustee of the John R. Menard, Jr. 2002
                     Trust and Related Trusts and Alphons Pitterle as
                     Trustee of the John R. Menard , Jr. 2002 Trust
                     and Related Trusts,
                               Defendants-Respondents,
                     Midwest Manufacturing Co., Wood Ecology Inc.,
                     Countertops Inc., Team Menard Inc., Menard
                     Engine Group, Menard Competition Technologies
                     LTD, MC Technologies Inc., Menard Engineering
                     LTD, UltraMotive LTD and Merchant Capital LLC,
                               Defendants,
                     Menard, Inc.,
                               Defendant-Respondent-Cross Petitioner.
                     ------------------------------------------------
                     Debra K. Sands,
                               Plaintiff-Appellant-Cross-Respondent-
                     Petitioner,
                           v.
                     John R. Menard, Jr. and Menard Thoroughbreds,
                     Inc.,
                               Defendants-Respondents-Cross-
                     Appellants,
                     Webster Hart as Trustee of the John R. Menard,
                     Jr. 2002 Trust and Related Trusts, Angela L.
                     Bowe as Trustee of the John R. Menard, Jr. 2002
                     Trust and Related Trusts, Alphons Pitterle as
                     Trustee of the John R. Menard , Jr. 2002 Trust
                     and Related Trusts, Midwest Manufacturing Co.,
                     Wood Ecology Inc., Countertops Inc., Team Menard
                     Inc., Menard Engine Group, Menard Competition
                     Technologies LTD, MC Technologies Inc., Menard
                     Engineering LTD, UltraMotive LTD
                     and Merchant Capital LLC,
                               Defendants,
                     Menard, Inc.,

                               Defendant-Respondent-Cross-Appellant-
                     Cross Petitioner.
                       REVIEW OF A DECISION OF THE COURT OF APPEALS
                        Reported at 372 Wis. 2d 126, 887 N.W.2d 94
                                PDC No: 2016 WI App 76 - Published

OPINION FILED:           December 29, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           September 12, 2017

SOURCE OF APPEAL:
  COURT:                 Circuit
  COUNTY:                Eau Claire
  JUDGE:                 Paul J. Lenz

JUSTICES:
  CONCURRED:
  DISSENTED:
  CONCURRED/DISSENTED:   ABRAHAMSON, J. concurs and dissents, joined by
                         A.W. BRADLEY, J. (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:


       For     the       plaintiff-appellant-cross-respondent-petitioner,
there were briefs filed by Charles K. Maier, Daniel R. Shulman,
Richard C. Landon, and           Gray,   Plant,   Mooty,   Mooty & Bennett,
P.A., Minneapolis, Minnesota, with whom on the briefs were Mel
C. Orchard, III, and The Spence Law Firm, LLC, Jackson, Wyoming.
There was an oral argument by Daniel R. Shulman.


       For             the     defendant-respondent-cross-appellant-cross
petitioner, there were briefs filed by G. Richard White and Weld
Riley, S.C., Eau Claire, with whom on the briefs were Michael D.
Freeborn, Brian P. Norton, Andrew C. Nordahl, and Freeborn &
Peters, LLP, Chicago, Illinois.              There was an oral argument by
Brian P. Norton.


       For the defendants-respondents, there was a brief by G.
Richard White and Weld Riley, S.C., Eau Claire, with whom on the
brief were Todd Wind and Fredrikson & Byron, P.A., Minneapolis,
Minnesota.          There was an oral argument by Todd Wind.




                                         2
       For the defendants-respondents-cross-appellants, there was
a brief filed by there was a brief filed by G. Richard White and
Weld   Riley,   S.C.,   Eau   Claire,       with   whom   on   the   briefs   were
Michael D. Freeborn, Brian P. Norton, Andrew C. Nordahl, and
Freeborn & Peters, LLP, Chicago, Illinois.




                                        3
                                                                  2017 WI 110
                                                           NOTICE
                                             This opinion is subject to further
                                             editing and modification.   The final
                                             version will appear in the bound
                                             volume of the official reports.
Nos.    2012AP2377 & 2015AP870

(L.C. No.   2008CV990)

STATE OF WISCONSIN                       :            IN SUPREME COURT

Debra K. Sands,

            Plaintiff-Appellant-Petitioner,

       v.

John R. Menard, Jr., Menard Thoroughbreds,
Inc., Webster Hart as Trustee of the John R.
Menard, Jr. 2002 Trust and Related Trusts,
Angela L. Bowe as Trustee of the John R.
Menard, Jr. 2002 Trust and Related Trusts and
Alphons Pitterle as Trustee of the John R.
Menard, Jr. 2002 Trust and Related Trusts,
                                                                FILED
            Defendants-Respondents,                        DEC 29, 2017

Midwest Manufacturing Co., Wood Ecology Inc.,                 Diane M. Fremgen
                                                           Clerk of Supreme Court
Countertops Inc., Team Menard Inc., Menard
Engine Group, Menard Competition Technologies
LTD, MC Technologies Inc., Menard Engineering
LTD, UltraMotive LTD and Merchant Capital LLC,

            Defendants,

Menard, Inc.,

            Defendant-Respondent-Cross
            Petitioner.
Debra K. Sands,

           Plaintiff-Appellant-Cross-Respondent-
           Petitioner,

    v.

John R. Menard, Jr. and Menard Thoroughbreds,
Inc.,

           Defendants-Respondents-Cross-
           Appellants,

Webster Hart as Trustee of the John R. Menard,
Jr. 2002 Trust and Related Trusts, Angela L.
Bowe as Trustee of the John R. Menard, Jr. 2002
Trust and Related Trusts, Alphons Pitterle as
Trustee of the John R. Menard, Jr. 2002 Trust
and Related Trusts, Midwest Manufacturing Co.,
Wood Ecology Inc., Countertops Inc., Team
Menard Inc., Menard Engine Group, Menard
Competition Technologies LTD, MC Technologies
Inc., Menard Engineering LTD, UltraMotive LTD
and Merchant Capital LLC,

           Defendants,

Menard, Inc.,

           Defendant-Respondent-Cross-Appellant-
           Cross Petitioner.




    REVIEW of a decision of the court of appeals.           Affirmed.



    ¶1     PATIENCE DRAKE ROGGENSACK, C.J.         We review a decision

of the court of appeals, affirming the circuit court's1 grant of

summary   judgment   dismissing   Debra   Sands'   claims    and   Menard,

    1
        The Honorable Paul J. Lenz of Eau Claire County, presided.
                                                           Nos.    2012AP2377 & 2015AP870



Inc.'s counterclaim.           Debra Sands and John Menard, Jr., were

involved in a romantic relationship from late 1997 to April

2006.2     Sands alleges that from 1998 until 2006 she cohabitated

with Menard and they engaged in a "joint enterprise" to work

together and grow Menard's businesses for their mutual benefit.

Menard and his affiliated entities argue that by failing to

comply     with     Supreme    Court     Rule       20:1.8(a),       which     regulates

business transactions between lawyers and their clients, Sands

is   precluded      from    seeking     an       ownership    interest       in    any   of

Menard's various business ventures.

      ¶2    We review four issues.                  First, we consider whether

Sands has pleaded facts sufficient to establish what she styled

as   an    unjust     enrichment       claim       under     Watts    v.     Watts,      137

Wis. 2d 506,       405     N.W.2d 305    (1987),       thereby        necessitating       a

remand to the circuit court for a full hearing on the merits.

Second,    we     consider    whether        the    court     of     appeals      properly

concluded that SCR 20:1.8(a) may be raised as a defense to an

unjust enrichment claim.           Third, we consider whether the court

of appeals properly granted summary judgment to Sands on Menard,

Inc.'s counterclaim for breach of fiduciary duty.                          And fourth,

      2
       Debra Sands appeals from a judgment of the court of
appeals, affirming the circuit court's grant of summary judgment
dismissing Sands' claims against John Menard, Jr. ("Menard"),
Menard, Inc., and Menard Thoroughbreds, Inc. ("collectively, the
Menard Defendants") and against the trustees of the John R.
Menard, Jr. 2002 Trust and related trusts ("the Trustees"). The
Menard Defendants appeal from an order affirming summary
judgment to Sands on Menard, Inc.'s counterclaim for breach of
fiduciary duty.


                                             3
                                                                Nos.   2012AP2377 & 2015AP870



we    consider        whether       the     court      of    appeals    properly      granted

summary judgment to the Menard Trustees.

       ¶3        As   to    the     claim    she      has    characterized      as   a   Watts

unjust enrichment claim, we conclude that Sands has failed to

allege facts which, if true, would support her legal conclusion

that       she    and      Menard    had     a    joint      enterprise     that     included

accumulation of assets in which both she and Menard expected to

share equally.             On the second issue, for the reasons explained

below,      we    conclude         that     SCR    20:1.8(a)     may    guide      courts   in

determining required standards of care generally; however, it

may    not       be   used    as     an     absolute        defense    to   a   civil    claim

involving an attorney.3                   And finally, we also conclude that the

court of appeals properly granted summary judgment to Sands on

Menard, Inc.'s counterclaim for breach of fiduciary duty, and to

the Trustees on their motion for summary judgment dismissing

Sands' claim.

       ¶4        Accordingly, we affirm the court of appeals.

                                       I.     BACKGROUND

       ¶5        Menard is the founder, president, and CEO of Menard,

Inc., a privately held chain of home improvement stores that

began in Eau Claire, Wisconsin.                         In November 1997, nearly 40

years after starting his business, Menard began dating Sands, a

lawyer licensed to practice in the state of Minnesota, who at


       3
       We do not consider whether Menard or the Menard Defendants
waived, ratified, or may be estopped to assert Sands' alleged
non-compliance with SCR 20:1.8(a).


                                                  4
                                                       Nos.   2012AP2377 & 2015AP870



the time was directing several business ventures with her sister

in St. Paul.      Sands claims that she moved in with Menard in the

summer of 1998, and they became engaged later that year.                         Menard

admits that he and Sands were engaged, but denies that they ever

lived together.

       ¶6     During their relationship, Sands alleges she made a

number of business and personal contributions to both Menard and

his companies, including Menard, Inc. and Menard Thoroughbreds,

Inc.        Although   the    parties     agree      that    Sands   made    certain

contributions,     they      do   not   agree   as    to    the   nature    of    those

contributions, when they began, or who was the recipient at any

given time.      Sands describes her contributions to Menard and his

companies as follows:

       She was Menard's life partner, social companion, and
       manager and hostess of his households.             Sands
       protected Menard from unwanted approaches by serving
       as a "gate-keeper."    She supervised his health care
       and medical needs; managed the remodeling of three
       residences;   and  advised   on   the   acquisition   of
       airplanes and their design and décor.      She provided
       ideas for new products and product lines for the
       Menard, Inc., stores, such as garden centers; and
       scouted and proposed new store locations, store
       layouts, and product displays.         She represented
       Menard, Inc., as a product buyer.     She reviewed and
       suggested changes and additions to Menard, Inc.,
       marketing plans.    She assisted with government and
       public relations. She participated in the redesign of
       store signs and logos.    She helped find new business
       and investment opportunities.     She assisted in the
       management of the Team Menard auto racing venture and
       newly-acquired businesses, including two engine design
       companies in England, a thoroughbred racing business,
       and a $400 million private equity fund. She made her
       joint enterprise with Menard her focus, which occupied
       her every moment.

                                          5
                                                            Nos.   2012AP2377 & 2015AP870



       ¶7     Sands claims that Menard repeatedly promised her that

in     return    for    these       contributions,        he     would     give    her     an

ownership interest in his various business ventures.                                Menard

denies ever making such promises, and states only that Sands

provided certain legal services beginning in approximately 1997.

       ¶8     The      parties      also     disagree       as     to    whether      Sands

performed legal work for Menard or the Menard Defendants prior

to the beginning of their romantic relationship.                           Sands contends

that there was never any attorney-client relationship with the

Menard      Defendants       prior     to    1998.        Conversely,        the    Menard

Defendants assert that Sands began providing legal services in

October 1997, before she and Menard began dating.

       ¶9     As evidence, the Menard Defendants submitted a May 28,

1998, invoice from Prima Group, a company owned by Sands and her

sister, in the amount of $49,635.84.                      The invoice referenced a

"client matter," listed as "Wisconsin Dept. of Natural Resources

v.   Menard,     Inc."       The     invoice      further      indicated     it    was   for

"Governmental relations & Legal services rendered Oct. 15, 1997

– May 15, 1998."            Sands claims that the invoice was prepared at

Menard's request, in response to his offer to pay off Sands'

remaining student loans of $49,635.84.                    Sands claims that Menard

told    her     to   send    the    invoice       to   Menard,     Inc.,    so    that    the

payment would be tax deductible as a business expense.                             Menard,

however,      claims     this      invoice    related     to     legal     services      that




                                              6
                                                              Nos.   2012AP2377 & 2015AP870



Sands provided in connection with a Wisconsin DNR investigation

into Menard, Inc.'s disposal of wood ash.4

       ¶10     Although the parties disagree as to the nature of the

legal       services       provided     prior      to     2003,      both   concede   that

beginning      in     2003      Sands   began      to    provide      significant     legal

services to Menard, Inc.5                Sands billed at an hourly rate of

$145, and Menard, Inc. paid Sands a total of $152,105 for seven

invoices.

       ¶11     In early 2004, Sands assisted in the creation of a

private equity fund ("the Fund").                    Steve Hilbert, a businessman

with       money    management      experience          and   a    long-time   friend    of

Menard's,          began   to    meet   with       Menard     to     discuss   the    Fund.

According to Sands, Menard asked her to review documentation

used to create the Fund.                 Menard, Inc., however, asserts that

from at least January 2005 through October 2005, Menard, Inc.

had retained Sands as its outside legal counsel to represent it

in the Fund transaction.




       4
       A similarly questionable transaction involving race car
driver Robby Gordon began in September 1998.         The record
reflects that Menard, Inc. paid Sands $3,000 on September 21,
1999, for her work on the Gordon transaction.     Sands concedes
that she performed some work as Menard's business advisor——not
lawyer——but states that the payment was actually a reimbursement
for wedding planning expenses. Sands v. Menard, 2016 WI App 76,
¶¶9-10, 372 Wis. 2d 126, 887 N.W.2d 94.
       5
       The parties disagree as to whether Sands ever provided
legal services to Menard personally. According to Sands, Menard
himself was never a client.


                                               7
                                                               Nos.      2012AP2377 & 2015AP870



      ¶12       Menard       alleges       that       Sands        was    responsible           for

negotiating           the   terms    of    the       transaction         with     Hilbert,       in

addition        to      reviewing        and     editing       the        Fund        transaction

documents.        Sands states that she was never asked and never did

create invoices for her work for Menard, in part because she

believed        her    efforts      were     part     of     her    and    Menard's          "joint

enterprise."            It was not until her relationship with Menard

ended in 2006 that Menard instructed her to provide itemized

invoices for all legal services for which she had not been paid,

dating back to 2003.               Sands then submitted 190 separate invoices

for   work       performed         between     February        2003       and     April      2006,

representing 7,487.10 hours of legal work at $145 per hour, for

a total fee of $1,085,629.50.

      ¶13       Sands       met   with     Menard      and    Pete       Liupakka,        Menard,

Inc.'s CFO, to discuss the invoices in October 2006.                                    Liupakka

believed that the number of hours reflected on the invoices was

excessive.            Nevertheless,        Menard,      Inc.       offered       to    pay    Sands

$961,518——the amount claimed in the invoices minus payments that

Menard,     Inc.       believed     Sands      had    already       received.           However,

Menard, Inc. made receipt of this payment conditioned on Sands

signing     a    one-page         "release     of    all     claims"       that       included    a

waiver of any "quasi-marital claims."                          Sands refused to sign,

prompting Menard, Inc. to offer an additional $100,000.                                       Sands

again refused, and Menard, Inc. rescinded its offer to pay any

portion of the fees reflected in the invoices.




                                                 8
                                                           Nos.    2012AP2377 & 2015AP870



       ¶14   On November 3, 2008, Sands filed suit against Menard,

the     Menard   Defendants,       and   eleven        other       parties     owned    or

controlled       by    Menard.        She       asserted          claims    for     Unjust

Enrichment, Implied Contract, Promissory Estoppel, Intentional

Infliction       of    Emotional     Distress,        Negligent        Infliction       of

Emotional    Distress,      Fraudulent          Misrepresentation,           Conversion,

and Breach of Fiduciary Relationship.                      On November 19, 2009,

Sands    filed    an   amended     complaint,        re-alleging       her     claims   of

unjust enrichment against Menard, asserting breach of contract

and promissory estoppel claims against Menard, and claims for

unjust enrichment against Menard, Inc., Menard Thoroughbreds,

Inc., and MH Private Equity Fund LLC ("MH Equity").                               A second

amended complaint was filed on May 10, 2011, adding the Trustees

as defendants.

       ¶15   Shortly      after     Sands        filed      her       second       amended

complaint, the Menard Defendants discovered evidence that Sands

had a side agreement with Hilbert, prompting accusations that

Sands had been attempting to obtain an ownership interest or

employment with MH Equity while she was representing them in the

Fund    transaction.       Therefore,           on   May   25,      2011,    the    Menard

Defendants asserted a counterclaim for breach of fiduciary duty

under SCR 20:1.8(a).

       ¶16   On April 12, 2012, the Menard Defendants moved for

summary judgment to dismiss all of Sands' claims by which she

sought a portion of Menard's "net worth or assets, ownership

interests in the Menard companies, or any part of the increase


                                            9
                                                                Nos.    2012AP2377 & 2015AP870



in value of the Menard Companies."                      The Menard Defendants argued

that SCR 20:1.8(a) barred Sands from recovering any portion of

Menard's         assets     or    an     ownership       interest       in   his    companies

because     she       had     failed     to   comply     with     SCR    20:1.8(a),      which

regulates         business       transactions          between    attorneys        and     their

clients.

      ¶17        The Trustees also moved for summary judgment, arguing

that Sands' theory of unjust enrichment failed as a matter of

law because:            (1) even if Sands benefitted Menard or Menard,

Inc.,      her        claim      would     therefore       be     against       the      Menard

Defendants, not the Trustees; (2) she did not allege facts,

which if true, would show any benefit conferred to the Trustees;

and       (3)     she       failed       to    allege         facts      showing      "unjust

circumstances."

      ¶18        Following       an    oral   ruling     on     October      12,   2012,    the

circuit court entered summary judgment on October 22, 2012.                                  The

court acknowledged that Sands had violated SCR 20:1.8(a),6 but

declined         to    adopt      a    bright-line        rule     that      SCR    20:1.8(a)

prohibits an attorney from bringing what Sands has styled as a

Watts      unjust       enrichment        claim     regarding      past      contributions.

Rather,         the   court      recognized       an    implicit        exception     to    SCR

20:1.8(a), such that it does not bar an attorney from bringing


      6
       The court found that:   (1) Sands is a lawyer and was a
lawyer at all relevant times; (2) Sands performed legal services
for Menard and the Menard Defendants; and (3) Sands did not
obtain a written agreement to acquire any portion of the Menard
Defendants' assets.


                                               10
                                                              Nos.    2012AP2377 & 2015AP870



an   equitable      claim       for    contributions         provided       in   a    romantic

relationship if:              (1) the romantic relationship predates the

attorney-client           relationship;          and     (2) "the          legal      services

rendered are merely ancillary or incidental to the larger joint

enterprise of the parties."7

       ¶19     As   to    the   first        requirement,      the    court      focused         on

whether Sands' May 28, 1998, invoice for "Governmental relations

&    Legal      services"         established          that     her        attorney-client

relationship began before her romantic relationship with Menard.8

Even       accepting     as   true     Sands'    claim    that       the    invoice        was   a

fraudulent       document       submitted       at   Menard's        request,        the    court

stated       that   it    would       deny    relief    in    equity       due     to      Sands'

admitted fraud regarding the invoice, which showed that she was

in pari delicto9 with Menard and, thus, the court would "leave

matters where they stand."10

       7
       During this hearing Judge Lenz focused on the legal
services as opposed to Sands' general contributions because the
proposed defense, namely, that SCR 20:1.8(a) barred Sands'
claim, applies to attorney-client relationships and their
attendant legal services.
       8
       See  Security   Pac.  Nat'l   Bank   v.  Ginkowski,   140
Wis. 2d 332, 339, 410 N.W.2d 589, 593 (Ct. App. 1987) (Stating
that for the concept of the clean hands doctrine to be applied,
"it must be shown that the alleged conduct constituting 'unclean
hands' caused the harm from which the plaintiff now seeks
relief.").
       9
       Latin for "in equal fault."                     Black's Law Dictionary 911
(10th ed. 2014).
       10
       The   circuit   court   did   not                      address        the        waiver,
ratification, or estoppel arguments.


                                               11
                                                                 Nos.    2012AP2377 & 2015AP870



      ¶20    Looking to the second element of the exception, the

court found that no reasonable jury could find that Sands' legal

services     were    "merely          ancillary         or   incidental."           Therefore,

because     neither       exception          to     its      test     applied,      the     court

concluded     that      Sands'        violation         of   SCR    20:1.8(a)     barred      her

claims against the Menard Defendants.                          The court then held that

because Sands could not recover against Menard, she could not

recover against the Trustees.                      The circuit court then granted

summary judgment           to the Trustees.                  Sands' claim against the

Menard      Defendants          for     compensation            for      services     rendered

remained.

      ¶21    Sands appealed from the order regarding the Trustees

and petitioned for leave to appeal from the order regarding the

Menard Defendants.              The court of appeals denied Sands' motion,

but   stayed      her     appeal       of    the       order    regarding      the    Trustees

pending     the   disposition           of    her       remaining       claims   in       circuit

court.      Sands v. Menard, 2016 WI App 76, ¶21, 372 Wis. 2d 126,

887 N.W.2d 94.

      ¶22    After        the    circuit          court        granted     partial        summary

judgment, Sands claimed that she was entitled to compensation

for her non-legal services.                  In support, she submitted extensive

documentation        of    the        various          "non-legal"       services     she     had

provided, and for which she alleged she was entitled to receive

compensation.        The Menard Defendants moved to strike, pointing

to Sands' previous affidavit in which she stated that she never




                                                  12
                                                            Nos.    2012AP2377 & 2015AP870



expected to be compensated for personal and family services.

The court granted the motion.

      ¶23     Refusing to concede that her only remaining claim was

for   compensation      for    legal    services       "at     a    rate    of    $145    per

hour," Sands next asserted that she was entitled to the quantum

meruit    value    of    her   legal     services,          which    she    claimed       was

between $355 and $640 per hour.                   Again, the Menard Defendants

moved    to   strike,    arguing      that    Sands     could       not    recover       on   a

quasi-contract        theory   when     she      had   an    express       contract      with

Menard to be paid $145 per hour for her legal services.                                   The

court    agreed,      explaining     that     "even     if    [$145       per    hour]    was

dictated by the client, Mr. Menard, this was clearly the agreed

rate."      The circuit court distinguished unjust enrichment claims

from quantum meruit, stating that while a plaintiff asserting a

Watts unjust enrichment claim seeks to recover a fair portion of

the increase in the couple's net worth, a quantum meruit claim

seeks to recover the fair value of services performed based on a

contract implied by law.             The dismissal of Sands' quantum meruit

claim therefore did not affect her unjust enrichment claim.                               The

circuit court also stated that Sands' quantum meruit claims were

barred because of her failure to comply with SCR 20:1.8(a).

      ¶24     Sands    moved   for     summary     judgment         on    Menard,    Inc.'s

counterclaim for breach of fiduciary duty.                          The circuit court

granted the motion, concluding that the counterclaim was barred

by the applicable statute of limitations and that a reasonable




                                            13
                                                              Nos.    2012AP2377 & 2015AP870



person in Menard's situation would have further investigated his

suspicions of Sands' disloyalty at an earlier date.

       ¶25    On April 24, 2015, Sands filed a notice of appeal from

the circuit court's final order, and Menard, Inc. cross-appealed

from    the    order      dismissing          its     counterclaim         for    breach     of

fiduciary duty.

       ¶26    Proceedings        at    the     court     of    appeals       involved       the

consolidation        of   the     direct       appeal     from       the    2012    judgment

disposing of all claims between Sands and the Trustees, and a

direct appeal from the 2015 final judgment disposing of all

claims between Sands, Menard, and the Menard Defendants.                                    The

court of appeals affirmed the circuit court, but on different

grounds.

       ¶27    Sands filed a petition for review on October 19, 2016,

which was followed by a petition for cross-review filed by the

Menard Defendants on November 18, 2016.                        We granted review, and

now affirm.

                                      II.     DISCUSSION

                             A.       Standard of Review

       ¶28    We    review   a        grant    or     denial     of    summary      judgment

independently, applying the same standards as employed by the

circuit court, while benefitting from the discussions of the

court of appeals and the circuit court.                         Dufour v. Progressive

Classic      Ins.    Co.,    2016       WI     59,     ¶12,    370     Wis. 2d 313,         881

N.W.2d 678;        Preisler v. General Cas. Ins. Co., 2014 WI 135,

¶16,   360    Wis. 2d     129,    857        N.W.2d    136.      Summary         judgment    is


                                               14
                                                         Nos.    2012AP2377 & 2015AP870



appropriate in cases where there is no genuine issue of material

fact and the moving party has established his or her right to

judgment as a matter of law.             Wis. Stat. § 802.08(2);11 Wadzinski

v. Auto-Owners Ins. Co., 2012 WI 75, ¶10, 342 Wis. 2d 311, 818

N.W.2d 819.      We review summary judgment submissions in the light

most favorable to the nonmoving party.                 Id.

                        B.    Unjust Enrichment Claim

                             1.   General principles

    ¶29       Sands   asserts     she    has     a    claim     against   Menard      for

unjust enrichment.         She relies on her interpretation of Watts,

where    we    concluded      that      public       policy     does   not        preclude

unmarried, former cohabitants from raising "claims based upon

unjust      enrichment       following         the      termination          of      their

relationships where one of the parties attempts to retain an

unreasonable amount of the property acquired through the efforts

of both."      Watts, 137 Wis. 2d 506 at 532-33.12

    11
       All subsequent references to the Wisconsin Statutes are
to the 2009-10 version unless otherwise indicated.
    12
       Plaintiff, Sue Ann Watts, asserted five legal theories to
support her claim:   (1) Sue Ann and James, and their children,
constituted a "family," thus entitling Sue Ann to bring an
action for property division under Wis. Stat. § 767.02(1)(h)
(1985-86), and to have the court divide their property pursuant
to Wis. Stat. § 767.255 (1985-86); (2) James's words and conduct
estopped him from asserting the lack of a legal marriage as a
defense under Wis. Stat. § 767.255; (3) Sue Ann and James had a
contract, either express or implied in fact, to share equally
the property accumulated during their relationship; (4) unjust
enrichment; and (5) partition. The Watts court dismissed claims
one and two, holding that divorce statutes were exclusively for
those persons who were legally married, but concluded that all
other legal remedies were available.       Watts v. Watts, 137
                                                     (continued)
                                          15
                                                         Nos.      2012AP2377 & 2015AP870



     ¶30     The Watts court relied on the usual legal standard for

unjust enrichment:

     [A] claim for unjust enrichment does not arise out of
     an agreement entered into by the parties. Rather, an
     action for recovery based upon unjust enrichment is
     grounded on the moral principle that one who has
     received a benefit has a duty to make restitution
     where retaining such a benefit would be unjust.
Id. at 530.     Unjust enrichment requires proof of three elements:

(1) a     benefit    conferred      on    the   defendant          by   the     plaintiff;

(2) appreciation or knowledge by the defendant of the benefit;

and (3) acceptance or retention of the benefit by the defendant

under circumstances making it inequitable to do so.                            Id. at 531.

In order to plead an unjust enrichment claim, the party seeking

judicial     relief    must    allege      facts    that,       if      true,    would   be

sufficient     to    satisfy    a   court       that    the     above     elements       are

present.     In Watts, we concluded that they were.                     Id. at 533.

     ¶31     Watts     held    that       neither      public        policy      nor     the

abolition     of      common-law      marriage         prohibited         an     unmarried

cohabitant    from     asserting      a    contractual        or     quasi-contractual

claim against another cohabitant.13                    Sue Ann Watts sued James

Watts over their respective interests in property accumulated


Wis. 2d 506, 511-12, 405 N.W.2d 305 (1987).        We focus                              our
analysis on the decision's holding as to unjust enrichment.
     13
       Common law marriage was abolished in Wisconsin by statute
in 1917. Meyer v. Meyer, 2000 WI 132, ¶63 n.1, 239 Wis. 2d 731,
620 N.W.2d 382 (Sykes, J., dissenting) (citing § 21, ch. 218,
Laws of 1917).    Watts did not preclude the remedy of unjust
enrichment for parties——unmarried cohabitants——who may otherwise
have been precluded from seeking judicial relief.


                                           16
                                                    Nos.    2012AP2377 & 2015AP870



during their 12-year cohabitation.          Id. at 510.        Sue Ann assumed

James' last name as her own, and together the couple raised two

children, who also shared the Watts name.                    They filed joint

income tax returns and maintained joint bank accounts.                    Sue Ann

and James purchased real and personal property together; Sue Ann

co-signed for the loans James obtained.             Watts, 137 Wis. 2d          at

513-14.

    ¶32   During this period Sue Ann managed the home front so

that James could build Watts Landscaping.                  She was a homemaker

who cared for their children.            She cleaned, cooked, laundered,

shopped, ran errands, and maintained the grounds surrounding the

parties' home.     Id. at 513.      She contributed personal property

that she owned at the beginning of the relationship, served as

hostess for James at both social and business-related events,

and for a time worked 20-25 hours per week at James' office,

performing    duties   as   a    receptionist,       typist        and   assistant

bookkeeper.     Id. at 513-14.

    ¶33   Sue    Ann   alleged    that    because     of     her    personal   and

business contributions, the business and personal wealth of the

couple increased.      Id. at 514.         Following the termination of

their relationship, however, James refused to compensate Sue Ann

for these contributions despite his indications that she would

share equally in the increased wealth.         Id.

    ¶34   In holding that Sue Ann had stated a claim for relief,

we focused our analysis on principles of equity and fairness.

Id. at 532-33.      Specifically, we concluded that regardless of


                                    17
                                                          Nos.   2012AP2377 & 2015AP870



the     nature      of     the    relationship,     the      court    should       enforce

contract, quasi-contract, and property rights where "one party

keeps       all     or     most   of   the    assets    accumulated          during    the

relationship, while the other party, no more or less 'guilty,'

is     deprived       of    property    which      he   or    she    has      helped    to

accumulate."         Id. at 526.

       ¶35    In concluding that Sue Ann had stated a claim, we

determined it would be unjust and inequitable to allow James to

retain the entire benefit of their joint enterprise.                          As to the

three elements of unjust enrichment, we concluded:                         (1) Sue Ann

contributed property and services to the relationship; (2) the

couple's assets increased as a result of these contributions;

and (3) James' retaining all of the assets was inequitable.

Watts, 137 Wis. 2d at 533.

       ¶36    Subsequent to our decision in Watts, unjust enrichment

claims in the context of unmarried cohabitants have appeared

before Wisconsin courts on an infrequent basis.14                       Nevertheless,

case    law       does   provide    some     guidance   on    the    scope    of    unjust

enrichment claims and, in particular, the types of facts that

must be pled in order to survive summary judgment.

       ¶37    In Waage v. Borer, 188 Wis. 2d 324, 525 N.W.2d 96 (Ct.

App. 1994), the court of appeals held that proof of the elements

of unjust enrichment must be demonstrated by showing:                              (1) an


       14
       Indeed, of the 171 cases citing to Watts, only a handful
discuss Sue Ann's unjust enrichment claim, and fewer are
published or authored decisions.


                                              18
                                                                 Nos.      2012AP2377 & 2015AP870



accumulation of assets; (2) acquired through the efforts of the

claimant and the other party; and (3) retained by the other

party in an unreasonable amount.                           Id. at 329-30.               At trial,

Borer claimed money for her housekeeping efforts after Waage

reneged on an alleged promise to marry her.                                The court concluded

that   despite      her    cooking,          cleaning,          and     childcare       services,

Borer failed to allege facts sufficient to meet the Watts unjust

enrichment standard.              Specifically, the court held that only

certain benefits will constitute "assets" or "property" for the

purposes     of    unjust       enrichment.             "Watts          does      not   recognize

recompense        for    housekeeping           or     other          services       unless      the

services     are    linked       to    an     accumulation            of    wealth      or   assets

during the relationship."                   Id. at 330.              In alleging only that

Waage retained a benefit from Borer's uncompensated housekeeping

efforts made in contemplation of marriage, the court concluded

that     Borer     had     not        met     the     unjust          enrichment        standard.

Furthermore,       the    court       explained        that      there       is    no    cause    of

action for breaching an alleged promise to marry.

       ¶38   In    Ward    v.    Jahnke,        220    Wis. 2d 539,            583      N.W.2d 656

(Ct. App. 1998), the court of appeals reemphasized that in order

for a plaintiff to successfully demonstrate unjust enrichment he

or she must present proof that the assets or property acquired

during    cohabitation          were        acquired       as    a    result       of    a   mutual

undertaking or joint effort.                        Id. at 552.              Sandra Ward and

Dennis Jahnke had shared an apartment for nearly four years,

during    which     time     Ward       paid        rent    and       all     other     household


                                               19
                                                                Nos.    2012AP2377 & 2015AP870



expenses so that Jahnke could save money for a down payment on a

house.      Jahnke eventually purchased a home, making the $11,000

down payment and all mortgage and tax payments on the property.

For   the    next    nine       years,    Ward      lived   in     the     home   rent-free,

although she did pay utilities and purchased groceries.                                     All

finances      were       kept    separate.           Upon       their    separation,        Ward

claimed that Jahnke was unjustly enriched because he was able to

accumulate a down payment while she paid for nearly all of their

household expenses.              Id. at 544.          She also argued that because

she   moved       into    Jahnke's       house      and   continued        to   pay   certain

expenses,     the     house      itself    was       an   asset        accumulated    through

their joint efforts and retained by Jahnke in an unreasonable

amount.      Id.

      ¶39     Applying      the      elements       of    unjust        enrichment     to   the

facts,      the     court       of   appeals        affirmed      the     circuit     court's

conclusion that Jahnke was unjustly enriched by Ward's efforts

during the period of cohabitation in which she paid rent and all

other household expenses.                 Id. at 550.             "We agree that under

these      facts,    Ward's      assumption         of    the    cost     of    the   couple's

living expenses was a benefit conferred on Jahnke which resulted

in an accumulation of the asset — the [$11,000] down payment."

Id.     However, the court reversed the circuit court's conclusion

that Jahnke had been unjustly enriched following the purchase of

the home.15         "Not only does Ward's claim lack a single Watts
      15
       At the circuit court, Ward had received a jury award of
$45,000, or one-half of the equity in the house.         Ward v.
Jahnke, 220 Wis. 2d 539, 544, 583 N.W.2d 656 (Ct. App. 1998).


                                               20
                                                       Nos.      2012AP2377 & 2015AP870



factor, her testimony as to their financial arrangements shows

only that she and Jahnke were cohabitants who divided their

household    expenses    in    such   a    way      that    it    made       it   easy   to

maintain     separate     finances        and       avoid        commingling          their

individual resources."        Id. at 550-51.

    ¶40     In so holding, the appeals court stated that it does

not read the list of factors outlined in Watts as a checklist,

but rather as "requiring a plaintiff to put forth facts which

indicate a shared enterprise and some form of proof that the

assets or property in dispute were 'acquired through the efforts

of both.'"        Id. at 547-48 (quoting Watts, 137 Wis. 2d at 533)

(emphasis    in    original).16       It       is   only     after       a    party      can

demonstrate the existence of a joint enterprise that the court

may award equitable relief.           See Ulrich v. Zemke, 2002 WI App

246, ¶12, 258 Wis. 2d         180, 654 N.W.2d 458.

    The proper legal standard requires the court to . . .
    analyze the character of the parties' relationship by
    inquiring whether the relationship was a joint
    enterprise which encompassed the accumulation of
    assets.     A   court  makes   this  determination   by
    considering the total circumstances of the parties'
    relationship,   specifically   whether   the   parties'
    contributed property and services to the relationship
    producing an increase in wealth.




    16
       See, e.g., Watts, 137 Wis. 2d at 533 n.21 (listing four
out-of-state decisions in which a cohabitant's unjust enrichment
claim was founded on specific facts that showed a mutual
undertaking or joint effort); Ward, 220 Wis. 2d at 548 n.3
(describing in further detail the footnote found in Watts).


                                          21
                                                            Nos.   2012AP2377 & 2015AP870


Id., ¶12.17
      ¶41     Properly understood, Watts stands for a very simple

proposition:         Wisconsin's public policy favoring marriage does

not     prohibit         unmarried    formerly       cohabitating         couples    from

asserting unjust enrichment claims against one another.                             Watts,

137 Wis. 2d at 532.            In such cases, the focus is on the benefit

received      by    one    party     from    the   other     party    which    would     be

inequitable to retain.               Boldt v. State, 101 Wis. 2d 566, 573,

305   N.W.2d       133    (1981).         Therefore,     the    proper    focus     is   on

property accumulated, not on the type of personal relationship

that existed between the parties.                  Stated otherwise, a claim for

unjust      enrichment      may     lie    when    two   people    work    together      to

acquire property "through the efforts of both," regardless of

their personal relationship.                Watts, 137 Wis. 2d at 533.

      ¶42     That James and Sue Ann Watts were romantic cohabitants

is not central to the merits of Sue Ann's unjust enrichment

claim.      For example, if James, instead, had a joint enterprise

to accumulate wealth with his sister, mom or next door neighbor
who provided necessary child care, domestic services and part-

time office help, an unjust enrichment claim by that person

would      require   the     same    proof    as    Watts      required   of   Sue   Ann.

Watts      simply        provided    that     cohabitation         between     unmarried


      17
       In Ulrich v. Zemke, 2002 WI App 246, 258 Wis. 2d 180, 654
N.W.2d 458, the court concluded that where a couple maintained a
house together, raised four children, shared living expenses,
and continually acquired real and personal property, they had
acted as a joint enterprise.


                                             22
                                                          Nos.    2012AP2377 & 2015AP870



romantic partners is not a bar to an otherwise valid claim of

unjust    enrichment.            It     did    not    provide    that     the    romantic

relationship created the claim for relief.                       Watts, 137 Wis. 2d

at 532-33.

                                 2.     Sands' pleadings

    ¶43        To     plead     facts     sufficient      to     support    an        unjust

enrichment          claim,    Sands     must     demonstrate:        (1)    a     benefit

conferred on Menard by Sands; (2) appreciation or knowledge by

Menard    of    the     benefit;18      and    (3)    acceptance    or    retention       of

assets arising from the benefit by Menard under circumstances

making it inequitable for him to retain all of those assets.

Stated     otherwise,           Sands'        unjust     enrichment        claim        must

demonstrate that, viewed in their entirety, the contributions

she made to a joint enterprise in which she and Menard were

mutually       engaged       resulted    in    an    accumulation    of    wealth       that

Menard unfairly retained.                Ward, 220 Wis. 2d at 552 (explaining

the importance of a mutual undertaking or joint effort).

    ¶44        Based on her allegations in the pleadings, which we

accept as true for purposes of summary judgment, Sands made a

variety    of       contributions        to    Menard,   both    professionally          and

personally.           Professionally,          she   offered     business       and    legal

advice, political consultation services, marketing and research

expertise.           She was directly involved in decisions regarding


    18
       For purposes of our discussion it                         is undisputed that
Menard was aware of Sands' contributions.                         We therefore focus
our analysis on the first and third prongs.


                                               23
                                                             Nos.    2012AP2377 & 2015AP870



Menards' Indycar and NASCAR racing sponsorships, and she advised

Menard      on    numerous       corporate     matters.             In    their     personal

relationship,19 Sands supervised Menard's health care and medical

needs, planned and prepared meals, and assisted with gardening

and other household tasks.                Sands advised about refurbishment

and redecoration of three personal residences, acted as hostess

of Menards' households, and provided both personal and family

advice.       Sands contends that as a result of these and other

contributions she is entitled to judgment in an amount equal to

the   fair       and    reasonable     share      of   the    property,       wealth,    and

increased         net     worth      acquired          by     Menard        during     their

cohabitation.           We disagree.

      ¶45     First, Watts and the cases that followed make clear

that unjust enrichment by a former cohabitant is founded on the

premise      of    a    mutual    undertaking          or    joint       enterprise    which

results      in    an    accumulation     of      assets      in     which    the    parties

expected to share equally but which are unfairly retained by one

party.      In Watts, we emphasized that as a direct result of Sue

Ann's      efforts,      James'   business        grew      and    the    parties'    assets

increased.



      19
       We again clarify that unjust enrichment claims do not
require an intimate relationship; the emphasis is on the
property acquired.    However, to the extent that Sands claims
these personal contributions allowed Menard to focus his
attention on his companies, they are relevant to her unjust
enrichment claim, namely, whether any assets were acquired
"through the efforts of both." See Ward, 220 Wis. 2d at 549.


                                             24
                                                      Nos.    2012AP2377 & 2015AP870



      ¶46   In Ward, the court distinguished between the couple's

initial, forty-four month cohabitation, during which time they

lived in Ward's apartment where the $11,000 down payment was

accumulated, and the latter period during which they lived in

the house purchased by Jahnke.              The court affirmed the circuit

court's     finding   that    Ward's    assumption           of    most   household

expenses during the initial forty-four months was "predicated on

a mutual undertaking to accumulate a down payment on a house."

Ward, 220 Wis. 2d at 550.           "The length of time this arrangement

persisted, with undisputed testimony that Ward assumed nearly

all of the couple's living expenses, coupled with the fact that

Jahnke then made a substantial down payment on a house lends

credibility to Ward's claim that this was a shared undertaking."

Id.

      ¶47   However, the court concluded that Ward had failed to

satisfy the unjust enrichment standard for the period following

the purchase of the home.            First, Jahnke had paid all closing

costs   associated    with    the    house,    and    all     mortgage     and   tax

payments thereafter.         Second, although Ward did the cooking,

cleaning,    and   laundry,    as    well     as    paid     for    groceries    and

utilities while living in the house, these contributions were

offset by the fact that she did not pay rent, and that Jahnke

took care of all maintenance work.                 Finally, the evidence did

not support the assertion of a joint enterprise after the house

had been purchased.      Each maintained separate bank accounts and

had individual insurance policies.                 Each purchased, paid for,


                                       25
                                                         Nos.   2012AP2377 & 2015AP870



and maintained his or her own vehicle.                      They never held joint

savings or checking accounts, purchased items together, took on

any   joint       debt,    or   loaned      each    other    money.      Ward,    220

Wis. 2d at 543.           Given these facts, the court concluded, "Ward

cannot claim that her assumption of the costs of the utilities

and groceries in a shared living arrangement, while living rent

free, entitles her to share in the equity of a house titled in

another's name.           Evidence of a mutual undertaking is completely

lacking."         Id. at 552.          Comparing the facts and outcomes in

Watts and Ward with the facts alleged by Sands, we conclude that

Sands' and Menard's relationship more closely resembles that of

Ward and Jahnke after the purchase of Jahnke's home.

      ¶48    First, at the time Sands and Menard met, Menard, Inc.

had   been    a    business     for    almost    forty   years,    and   Menard   was

already a multi-millionaire.                Sands, meanwhile, was a graduate

of law school operating at least three separate businesses with

her sister in St. Paul, Minnesota.                   Therefore, while Menard's

net worth was undoubtedly higher than Sands', both parties had

sufficient financial means and business acumen.                       We therefore

reject any comparison of Sands' contributions to those of Sue

Ann Watts, who helped James Watts begin and grow his landscaping

business,     or    to     those      of   Sandra   Ward,    whose    contributions

allowed Dennis Jahnke to save $11,000 for the down payment on a

house.      In each of those cases, the parties had very little, and

it was only through their joint efforts that their assets or




                                            26
                                                        Nos.    2012AP2377 & 2015AP870



property increased.        Sands, however, did not support Menard as

he built his empire; he already had it when they met.

     ¶49    Second, we note the inherent differences between how

Sue Ann and James Watts conducted themselves, and how Sands and

Menard      conducted         themselves       during          their       respective

relationships.          Sands    has   not    alleged          that    during    their

relationship she and Menard commingled finances, filed joint tax

returns,    or   made    joint    purchases        of    real     and/or      personal

property.     Sands did not obligate herself to any business or

personal debt Menard incurred.           Given these undisputed facts, we

conclude that Sands and Menard were not engaged in a "joint

enterprise" as required under Watts.20

     ¶50    Although     we     conclude      that      there     was    no      "joint

enterprise,"     we   nonetheless      turn   to     Watts'     three-part       unjust

enrichment analysis to evaluate the underlying merits of Sands'

unjust enrichment claim.            Under the first prong, Sands must

allege sufficient facts which, if true, would prove that her

contributions     were    material      to    increasing         Menard's       wealth.

Here, despite the litany of contributions she made, see, e.g.


     20
       Once again, the precise nature of the underlying
relationship is not the linchpin of our analysis.  However, we
do consider the circumstances of the relationship relevant in
helping us determine whether the elements of unjust enrichment
have been met, particularly the second element under the Waage
test, Waage v. Borer, 188 Wis. 2d 324, 329-30, 525 N.W.2d 96
(Ct. App. 1994) (requiring "(1) an accumulation of assets;
(2) acquired through the efforts of the claimant and the other
party and (3) retained by the other party in an unreasonable
amount.").


                                        27
                                                       Nos.   2012AP2377 & 2015AP870



supra    ¶6,    we    cannot   conclude    that   Sands'      contributions        were

"material" given Menard's wealth and the success of his company

when the parties met.          In particular, although Sands has listed

a series of business transactions in which she "participated" or

"assisted,"      she    has    alleged    no   facts    from    which    we    could

conclude that her contributions caused an increase in Menard's

assets or property.

    ¶51        We are similarly disinclined to conclude that Sands

has pled sufficient facts which, if true, would demonstrate that

Menard's acceptance or retention of her contributions would be

inequitable under the circumstances.              In particular, Sands must

demonstrate that the benefits she conferred to Menard are not

offset by the benefits she derived from him.                   First, the record

indicates      that    Sands   enjoyed    an   expansive       lifestyle      as   the

companion of a wealthy man.21             Second, unlike the plaintiffs in

Watts or Ward, Sands did receive compensation for some of her

services.        Over the course of their eight-year relationship,

Sands was paid $49,635.84 for the balance of her student loans,22

$3,000 to compensate her for "wedding expenses," and $152,105

for various legal services.
    21
       For example, the record reflects that Sands and Menard
took multiple boating and skiing trips, vacations to St. Martin,
London, and Italy, and that Menard gifted Sands with a Ford
Mustang for Christmas in 2005. They went to horse races, NASCAR
events, and fashion shows, and met prominent political figures
at that time.
    22
       As referenced above, it is disputed whether this payment
was for her student loans or for legal services in regard to the
DNR matter.


                                          28
                                                                 Nos.    2012AP2377 & 2015AP870



       ¶52    Sands        argues,          however,          that         because         Menard

"repeatedly"       promised          her    that     she     would       obtain     a     certain

ownership       interest        in    Menard,        Inc.,     and       because     she       made

contributions       "fully       and       faithfully        and    in    reliance        on    the

promises and representations of Menard," it would be inequitable

to deny her an ownership interest in his property.                                Given that a

specific        agreement        is        unnecessary           under       Watts,        Sands'

allegations that she was promised a certain ownership interest

are not persuasive.             In short, we conclude that Sands has failed

to     allege     facts     which,         if   true,      would        support     her     legal

conclusion that she and Menard had a shared enterprise that

included accumulation of assets in which both she and Menard

expected to share equally.23

                      C.    Rules of Professional Conduct

       ¶53    In light of our conclusion that Sands has failed to

allege facts which, if true, would support what she has styled

as a Watts unjust enrichment claim, analyzing whether her claim

also     is     barred     by    SCR       20:1.8(a)       may     not     seem     necessary.

Nonetheless, because the question of whether a Supreme Court

Rule can be used as an absolute defense against an attorney in a

civil action is an important issue, we address it here.                                   For the

reasons stated below, we conclude:                         (1) the court of appeals


       23
       We do not suggest that a former cohabitant may never
plead facts sufficient to establish a "material benefit"
unjustly obtained by a wealthy partner. We simply hold that in
this case, Sands did not plead facts sufficient to meet the
criteria for unjust enrichment set forth in Watts.


                                                29
                                                           Nos.    2012AP2377 & 2015AP870



erred in holding SCR 20:1.8(a) created an absolute bar to Sands'

unjust enrichment claim; and (2) although SCR ch. 20 may not be

used as an absolute defense to a civil claim where an attorney

is   a    party,     SCR   20:1.8(a)       may    guide    courts       in   determining

whether those standards of care that generally are required of

lawyers have been met.

                             1.    General principles

         ¶54   Supreme Court Rule ch. 20 sets forth the regulations

governing professional conduct of attorneys licensed to practice

law in the State of Wisconsin.                   Attorneys not admitted to the

State Bar of Wisconsin may be subject to the disciplinary action

in   Wisconsin       "if   the     lawyer       provides    or     offers     any   legal

services in the state."             SCR 20:8.5(a).            We have the exclusive

authority to define the "practice of law."                         See Seitzinger v.

Cmty.     Health     Network,      2004    WI    28,    ¶39,      270   Wis. 2d 1,    676

N.W.2d 426.         We have previously concluded that deciding whether

one engaged in the "practice of law" is determined on a case-by-

case basis.          State ex rel. Junior Ass'n of Milwaukee Bar v.

Rice, 236 Wis. 38, 53, 294 N.W. 550, 556 (1940).

         ¶55   At   all    times    relevant       to   the    current       litigation,

attorneys licensed outside of Wisconsin who were acting as in-

house counsel in this state were not "practicing law" for the

purposes of bar admission.                See Mostkoff v. Bd. of Bar Exam'rs,

2005 WI 33, ¶19, 279 Wis. 2d 249, 693 N.W.2d 748 (concluding

Michigan attorney's legal services as corporate counsel were not

the "practice of law" for purposes of admission to the State Bar


                                            30
                                                              Nos.    2012AP2377 & 2015AP870



of Wisconsin).         Therefore, because at that time an attorney who

was    not    licensed        to        practice      in    Wisconsin,          but    who    was

nonetheless         serving        as     in-house         counsel    for        a    Wisconsin

corporation, was not eligible for bar admission based solely on

in-house counsel services, he also was not subject to regulation

by the State Bar of Wisconsin.

       ¶56    As to all attorneys practicing law in this state, we

have    previously        ruled         that     "[v]iolations        of        the    Code    of

Professional         Conduct        are        determined       only        by        means    of

disciplinary        action."             Foley-Ciccantelli           v.    Bishop's          Grove

Condo.,      2011    WI   36,      ¶2,     333     Wis. 2d     402,       797    N.W.2d       789.

Indeed, as stated in preamble [20]24 to the Rules in effect

during Sands' alleged cohabitation:

       Violation of a rule should not itself give rise to a
       cause of action against a lawyer nor should it create
       any presumption in such a case that a legal duty has
       been breached. In addition, violation of a rule does
       not necessarily warrant any other nondisciplinary
       remedy, such as disqualification of a lawyer in
       pending litigation. The rules are designed to provide
       guidance to lawyers and to provide a structure for
       regulating conduct through disciplinary agencies.
       They are not designed to be a basis for civil
       liability. Furthermore, the purpose of the rules can
       be subverted when they are invoked by opposing parties
       as procedural weapons. The fact that a rule is a just
       basis   for   a  lawyer's   self-assessment,  or   for
       sanctioning a lawyer under the administration of a

       24
       The preamble was amended in 2007 to add the following
concluding sentence:      "Nevertheless, since the rules do
establish standards of conduct by lawyers, a lawyer's violation
of a rule may be evidence of breach of the applicable standard
of conduct."


                                                 31
                                                                 Nos.    2012AP2377 & 2015AP870


       disciplinary authority, does not imply that an
       antagonist in a collateral proceeding or transaction
       has standing to seek enforcement of the rule.
       ¶57    The court of appeals has also endorsed the use of the

Rules of Professional Conduct as guidelines or principles in

civil litigation.            Gustafson v. Physicians Ins. Co., 223 Wis. 2d

164, 176-78, 588 N.W.2d 363 (Ct. App. 1998).                                In Gustafson, the

plaintiffs' attorney in a medical malpractice case also agreed

to represent the interests of the plaintiffs' subrogated health

insurer      in    exchange        for    one-third         of    the       health    insurer's

recovery.         Id. at 168.       After a jury rendered a verdict in favor

of the defendants, the plaintiffs' attorney reached a settlement

agreement      with       the     defendants     whereby         the     plaintiffs         waived

their     right      to      appeal      the   judgment          in      exchange      for       the

defendants' agreement not to seek taxable costs against them.

Id. at 169.          However, the plaintiffs' attorney never consulted

with    the       subrogated        insurer      about       the        settlement         and    it

expressly left the defendants the option of taxing costs against

the subrogated insurer, which they did.                               Id.     The subrogated
insurer      appealed        on   the    basis      that    the       judgment       was    unfair

because of the attorney's misconduct, whereupon the settlement

was voided.        Id.


       ¶58    In determining whether the judgment for taxable costs

should be reversed due to the attorney's conduct, the court of

appeals considered several of the Rules of Professional Conduct

as   guidelines         or   principles.            For    example,         SCR   20:1.16        was
considered         to     determine       whether          the     plaintiffs'         attorney


                                               32
                                                        Nos.   2012AP2377 & 2015AP870



properly withdrew from representing the subrogated insurer; SCR

20:1.2 was considered to determine whether the attorney should

have informed the subrogated insurer of the proposed settlement;

and SCR 20:1.7 was reviewed to determine whether the attorney

had an impermissible conflict of interest when he negotiated the

settlement.     Id. at 176-78.       Taxable costs were reversed because

the attorney failed to adequately protect his client.                         Id. at

182.


                 2.     SCR 20:1.8(a) general principles


       ¶59   Supreme    Court     Rule   20:1.8(a)        applies    to    financial

conflicts of interest that may arise when an attorney "enter[s]

into    a    business    transaction        with    a     client     or    knowingly

acquire[s] an ownership, possessory, security or other pecuniary

interest     adverse    to   a   client."     SCR       20:1.8(a).        During   the

relevant time period, SCR 20:1.8(a) provided:

       A lawyer shall not enter into a business transaction
       with a client or knowingly acquire an ownership,
       possessory, security or other pecuniary interest
       adverse to the client unless:

            (1) the transaction and terms on which the lawyer
       acquires the interest are fair and reasonable to the
       client and are fully disclosed and transmitted in
       writing to the client in a manner which can be
       reasonably understood by the client;

            (2) the client is given a reasonable opportunity
       to seek the advice of independent counsel in the
       transaction; and

             (3) the client consents in writing thereto.




                                         33
                                                            Nos.    2012AP2377 & 2015AP870



    ¶60       Supreme      Court     Rule      20:1.8(a)       is    grounded         in     the

concern that "[a] lawyer's legal skill and training, together

with the relationship of trust and confidence between lawyer and

client, create the possibility of overreaching when the lawyer

participates in a business, property or financial transaction

with a client."         See Model Rules of Prof'l Conduct r. 1.8 cmt.

(Am. Bar Ass'n 2015).              The rule applies to all attorney-client

relationships, and includes transactions in which an attorney

seeks    an    ownership        interest        in    the     client's       business        as

compensation     for    his     or   her    legal      services.           See    id.        The

existence of an attorney-client relationship "depends upon the

intent   of    the   parties       and    is    a    question       of    fact."        In    re

Disciplinary Proceedings Against Kostich, 2010 WI 136, ¶16, 330

Wis. 2d 378, 793 N.W.2d 494.

                           3.   SCR 20:1.8(a) and Sands

    ¶61       Both   the    circuit        court      and     the    court       of   appeals

applied SCR 20:1.8(a) to Sands' Watts unjust enrichment claim.
The circuit court formulated a two-part exception to Menard's

proposed      bright-line       rule,     namely,      that    SCR       20:1.8(a)      is   an

absolute      defense   unless       two       conditions      are       met:         (1)    the

attorney and client had a romantic relationship that predated

their attorney-client relationship; and (2) the legal services

rendered by the attorney were "merely ancillary or incidental"

to the larger joint enterprise.                     The court of appeals went one

step further, holding that a violation of SCR 20:1.8(a) is an
absolute bar to recovery.                Sands, 372 Wis. 2d 126, ¶38.                   As to

                                            34
                                                              Nos.   2012AP2377 & 2015AP870



both dispositions, we disagree, and conclude that while Supreme

Court Rules may guide courts in determining required standards

of    care    generally,     they        may   not    be   employed     as    an     absolute

defense in a civil action involving an attorney.

       ¶62     As Sands has repeatedly pointed out, the preamble to

the    Supreme       Court       Rules     clearly      demonstrates         that     alleged

violations are to be determined in disciplinary proceedings, not

civil litigation.            "The Preamble demonstrates that the purpose

of the rules is not to provide remedies outside the realm of

professional discipline."                  Foley-Ciccantelli, 333 Wis. 2d 402,

¶173 (Roggensack, J., concurring).                         See also     Nauga, Inc. v.

Westel       Milwaukee     Co.,     Inc.,       216    Wis. 2d 306,       318       n.5,   576

N.W.2d 573, (Ct. App. 1998) ("Violation of a rule should not

give    rise    to    a    cause     of    action      nor    should     it     create     any

presumption that a legal duty has been breached.                             The rules are

not designed to be a basis for civil liability.").

       ¶63     The Menard Defendants argue that they have not invoked

SCR    20:1.8(a)      as     a     basis       for    civil    liability,       to     obtain

disciplinary sanctions, or as a procedural weapon.                                   Instead,

they look to the language of the amended preamble "because it

establishes the standards of conduct with which Sands needed to

comply if she wanted to enforce such an arrangement."                                 Similar

to Sands, the Menard Defendants ground their argument in the

language of Foley-Ciccantelli.                   However, while Sands focuses on

the language cited above, the Menard Defendants focus on ¶86,

which reads, in part:


                                               35
                                                                   Nos.    2012AP2377 & 2015AP870


       The resolution of the issue of disqualification in the
       present case is thus guided by our prior case law and
       the   precepts   of   the    Supreme   Court   Rules   of
       Professional   Conduct   for   Attorneys   regarding   an
       attorney's duties to former clients. Appellate courts
       have often cited the Rules of Professional Conduct for
       guidance    in   non-disciplinary     cases,    including
       disqualification cases.
Foley-Ciccantelli, 333 Wis. 2d 402, ¶86.


       ¶64   The           arguments      of    the      Menard          Defendants       are     not

persuasive.            Foley-Ciccantelli           arose          from    a    disqualification
motion, not from a claim that the lawyer's conduct violated SCR

ch. 20.      Id., ¶91.

       ¶65   Accordingly,            we   conclude          that    SCR       ch.   20    does    not

apply here for at least two reasons.                         First, Supreme Court Rules

that regulate the ethical practice of law in Wisconsin cannot be

used    as   an    absolute        defense       in     a    civil       action     in    which    an

attorney     is        a    party.        In     that       regard,       we    clarify        Foley-

Ciccantelli       to        so   hold.         Second,      Sands'        provision       of    legal

services was not the practice of law, as we defined the practice

of     law   in    Mostkoff;           therefore,           she    was        not   entitled       to

membership        in       the   State    Bar     of     Wisconsin            during     the    times

relevant to her Watts claim.                     Accordingly, she was not subject

to SCR 20:1.8(a).

                            D.   Menard, Inc.'s Counterclaim

       ¶66   The court of appeals concluded that the accrual date

for Menard, Inc.'s counterclaim for breach of fiduciary duty was

September 1, 2005, the date of closing for the Fund transaction.
As we consider the court of appeals' conclusion, we note that


                                                 36
                                                        Nos.   2012AP2377 & 2015AP870



the question presented is whether on September 1, 2005, Menard,

as the president and CEO of Menard, Inc., knew or should have

known that Sands' loyalty was questionable.                       Hansen v. A.H.

Robins,     Inc.,    113    Wis.   2d    550,   560,    335    N.W.2d    578   (1983)

(concluding that a claim accrues "on the date the injury is

discovered or with reasonable diligence should be discovered,

whichever occurs first.").              To answer that question, we consider

Menard's personal characteristics.

      ¶67    Menard was a skilled businessman who had been involved

in countless business transactions in his individual capacity

and as the CEO of Menard, Inc.                  On September 1, 2005, he had

enough information to be required to investigate further.                      As he

said in regard to the closing of the transaction that created

the Fund, "it was very difficult to tell whose side [she] was

on, was she on [Hilbert's] side or my side."                    He also said that

he then believed that Sands was lying to him.                           Although the

degree of certainty of suspicion is variable, here, Menard was

not   a   novice.      He    was   in    charge   of    a   multi-billion      dollar

corporation.        He also had outside advisors by his side.                    His

suspicion triggered the obligation to investigate further, and

he had plenty of assistance to do so.                  See Goff v. Seldera, 202

Wis. 2d 600, 611, 550 N.W.2d 144 (Ct. App. 1996) (citing Awve v.

Physicians Ins. Co., 181 Wis. 2d 815, 825, 512 N.W.2d 216 (Ct.

App. 1994)).        Yet, he did nothing until after Sands sued him.

      ¶68    Even with the tolling rule of Donaldson v. West Bend

Mut. Ins. Co., 2009 WI App 134, ¶¶23-24, 321 Wis. 2d 244, 773


                                          37
                                                         Nos.    2012AP2377 & 2015AP870



N.W.2d 470, which makes the effective filing date November 3,

2008,       Menard,      Inc.'s    counterclaim         was     well     outside        the

applicable statute of limitations.25

                          E.   Claim Regarding Trustees

       ¶69     Sands also appeals the court of appeals' dismissal of

her claim against the Trustees, in which the court of appeals

affirmed the circuit court's grant of summary judgment to the

Trustees based on its earlier ruling granting partial summary

judgment to the Menard Defendants.                  The court stated, "since

there is no avenue to recover against the Menard principal,

there cannot be recovery against the [Trustees]."

       ¶70     Before us, Sands' brief-in-chief asserted only what

she    styled    as   a    Watts   unjust      enrichment       claim,    and      in   her

combined       response    brief   regarding      the    Menard        Defendants       and

Trustees, Sands stated, "This Appeal is Solely a Watts v. Watts

Unjust Enrichment Claim."

       ¶71     Watts, as we have discussed above in some detail, does

not preclude an unmarried cohabitant from bringing an unjust

enrichment       claim    on    equitable      grounds    when     the       cohabitants

engaged in a joint enterprise to work together to accumulate

wealth and one cohabitant has retained the accumulated wealth in

an    unjust    amount.        Watts   provides    no    support       for    an   unjust

enrichment claim made by a third party because unjust enrichment


       25
       We concur with the conclusion of the court of appeals on
this matter, and largely adopt their factual narration as our
own. Sands, 372 Wis. 2d 126, ¶¶53-59.


                                          38
                                                                 Nos.    2012AP2377 & 2015AP870



claims    are     premised           on    two   people     working       towards         a     joint

accumulation of property in which they both expect to share

equally.

       ¶72   However,           we        understand      Sands'        claim       against        the

Trustees     to     be     made       under      the     theory     that        they      are      the

repositories       of    significant             property        that    once       belonged        to

Menard.      Therefore, if Sands were to prevail on what she has

styled as a Watts unjust enrichment claim against Menard, she

would need to reach the Trustees to garner a share of Menard's

property that they hold.                    We offer no opinion on her theory of

recovery from the Trustees because she has not prevailed on her

unjust enrichment claim against Menard.                             Accordingly, she can

have   no    interest       in        any     property      that    the       Trustees          hold.

Therefore,        Sands'     claim          against      the     Trustees        was      properly

dismissed.

                                       III.      CONCLUSION

       ¶73   There were four issues argued before this court on

appeal.      First,        we    considered            whether    Sands       has    pled       facts

sufficient to show unjust enrichment.                          We conclude that she has

not.      Sands has failed to demonstrate facts which, if true,

would support her legal conclusion that she and Menard had a

joint enterprise that included accumulation of assets in which

both she and Menard expected to share equally.

       ¶74   Second,       we        considered        whether    the     court      of    appeals

properly     concluded          that       SCR    20:1.8(a)       may    be     raised        as   an

absolute defense to what Sands has styled as a Watts unjust


                                                  39
                                                  Nos.   2012AP2377 & 2015AP870



enrichment claim arising from a long-term romantic relationship.

We conclude that SCR 20:1.8(a) may guide courts in determining

required standards of care generally; however, it may not be

employed as an absolute defense to a civil claim involving an

attorney.

    ¶75     And    finally,    we   also   conclude    that   the    court    of

appeals properly granted summary judgment to Sands on Menard,

Inc.'s counterclaim for breach of fiduciary duty, and to the

Trustees on their motion for summary judgment dismissing Sands'

claim.

    By    the     Court.—The   decision    of   the   court   of    appeals   is

affirmed.




                                      40
                                                       No.    2012AP2377 & 2015AP870.ssa


    ¶76     SHIRLEY S. ABRAHAMSON, J.                   (concurring in part and

dissenting in part).            Unlike the majority, I conclude that Debra

Sands pleaded sufficient facts to establish an unjust enrichment

claim    under    Watts    v.    Watts,   137    Wis. 2d 506,         405   N.W.2d 303

(1987), against John R. Menard, Jr.1                         I would remand Sands'

unjust enrichment claim against Menard to the circuit court for

trial.     Accordingly,         I    dissent    from    the     majority's    contrary

conclusion.

                                           I

    ¶77     I begin by setting forth the applicable standard of

review, which is muddied by the majority.                         The supreme court

reviews a grant of summary judgment independently, applying the

same standards as employed by the circuit court.                             Dufour v.

Progressive Classic Ins. Co., 2016 WI 59, ¶12, 370 Wis. 2d 313,

881 N.W.2d 678.       "There is a standard methodology which a trial

court follows when faced with a motion for summary judgment."

Green    Spring    Farms        v.   Kersten,    136         Wis. 2d 304,    314,   401

N.W.2d 816 (1987).
    ¶78     "The first step of that methodology requires the court

to examine the pleadings to determine whether a claim for relief

has been stated."         Green Spring Farms, 136 Wis. 2d at 315; see


    1
       I agree with the following conclusions of the majority:
(1) SCR 20:1.8(a) may guide courts in determining required
standards of care for attorneys generally, but may not be used
as an absolute bar in a civil claim involving an attorney; (2)
the court of appeals properly granted summary judgment to Sands
on Menard, Inc.'s counterclaim for breach of fiduciary duty; and
(3) the court of appeals properly granted summary judgment to
the Menard Trustees. Majority op., ¶3.


                                           1
                                                         No.    2012AP2377 & 2015AP870.ssa


also       Moya    v.   Aurora     Healthcare,     Inc.,       2017    WI     45,   ¶15,    375

Wis. 2d 38,          894   N.W.2d 405.            This    step        tests     the    "legal

sufficiency of the complaint."                   Kaloti Enters., Inc. v. Kellogg

Sales Co., 2005 WI 111, ¶11, 283 Wis. 2d 555, 699 N.W.2d 205.

All facts alleged in the complaint, as well as all reasonable

inferences         from    those    facts,   are    accepted          as    true,     and   the

complaint is given a liberal construction.                       Ollerman v. O'Rourke

Co., 94 Wis. 2d 17, 24, 288 N.W.2d 95 (1980).

       ¶79        "If a claim for relief has been stated, the inquiry

then shifts to whether any factual issues exist."                              Green Spring

Farms, 136 Wis. 2d at 315.              Summary judgment is only appropriate

"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              The evidence is viewed in the light most

favorable to the non-moving party, and all reasonable inferences

are drawn in favor of the non-moving party.                                 Burbank Grease
Servs., LLC v. Sokolowski, 2006 WI 103, ¶40, 294 Wis. 2d 274,

717 N.W.2d 781.             It is not the job of the court on summary

judgment to "decide issues of credibility, weigh the evidence,

or choose between differing but reasonable inferences from the

undisputed         facts."         Fortier   v.    Flambeau        Plastics         Co.,    164

Wis. 2d 639, 665, 476 N.W.2d 593 (Ct. App. 1991).

                                             II

       2
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.


                                             2
                                                       No.    2012AP2377 & 2015AP870.ssa


     ¶80    I conclude that the facts alleged in Sands' complaint,

taken as true (as we must), adequately state a claim for unjust

enrichment against Menard.3

     ¶81    An unjust enrichment claim has three elements: "(1) a

benefit    conferred      on     the    defendant        by    the   plaintiff,      (2)

appreciation or knowledge by the defendant of the benefit, and

(3) acceptance or retention of the benefit by the defendant

under circumstances making it inequitable for the defendant to

retain the benefit."           Watts, 137 Wis. 2d at 531.

     ¶82    Watts     did       not    change         the     elements      of     unjust

enrichment.     Nor      did     it    create     a     sub-category        of    unjust

enrichment     claim.           It     merely     recognized         that     unmarried

cohabitants may state a claim for unjust enrichment where one

party     retains   an    unreasonable          amount        of   property      acquired

through the efforts of both.            As the Watts court explained:

     Many courts have held, and we now so hold, that
     unmarried cohabitants may raise claims based upon
     unjust enrichment following the termination of their
     relationships where one of the parties attempts to
     retain an unreasonable amount of the property acquired
     through the efforts of both.

     In   this  case,   the  plaintiff  alleges   that   she
     contributed both property and services to the parties'
     relationship.    She claims that because of these
     contributions the parties' assets increased, but that
     she was never compensated for her contributions. She
     further alleges that the defendant, knowing that the
     plaintiff   expected   to   share  in   the    property
     accumulated, "accepted the services rendered to him by
     the plaintiff" and that it would be unfair under the

     3
       The operative complaint in the instant case is Sands'
Second Amended Complaint.


                                          3
                                                    No.   2012AP2377 & 2015AP870.ssa

       circumstances to allow him to retain everything while
       she receives nothing.
Watts, 137 Wis. 2d at 532-33.

       ¶83    Additionally,       nothing    in     Watts    limits    an    unjust

enrichment claim to two persons.              A claim for unjust enrichment

may involve more than two persons so long as all those involved

worked towards the joint accumulation of property or wealth in

which they all expected to share.                  Any contrary suggestion by

the majority is unsupported.          See majority op., ¶71.

       ¶84    In   Watts,   the     plaintiff      alleged     that   during    her

relationship with the defendant, she contributed both property

and services to the parties' relationship with the expectation

that   she    would   enjoy   equally       with   the    defendant    the   wealth

accumulated through their joint efforts.                  Watts, 137 Wis. 2d at

513-14.      The plaintiff alleged:

       During their relationship, the plaintiff contributed
       childcare and homemaking services, including cleaning,
       cooking, laundering, shopping, running errands, and
       maintaining the grounds surrounding the parties' home.
       Additionally,   the   plaintiff   contributed  personal
       property to the relationship which she owned at the
       beginning of the relationship or acquired through
       gifts or purchases during the relationship.         She
       served as hostess for the defendant for social and
       business-related   events.      The  amended  complaint
       further asserts that periodically, between 1969 and
       1975, the plaintiff cooked and cleaned for the
       defendant and his employees while his business, a
       landscaping service, was building and landscaping a
       golf course.

       From 1973 to 1976, the plaintiff worked 20-25 hours
       per week at the defendant's office, performing duties
       as a receptionist, typist, and assistant bookkeeper.
       From 1976 to 1981, the plaintiff worked 40-60 hours
       per week at a business she started with the
       defendant's sister-in-law, then continued and managed

                                        4
                                                  No.   2012AP2377 & 2015AP870.ssa

    the business        herself   after   the     dissolution     of   that
    partnership.
Watts, 137 Wis. 2d at 513-14.

    ¶85    The Watts court held that the plaintiff stated a claim

for unjust enrichment against her former cohabitant:

    In   this  case,   the  plaintiff  alleges   that   she
    contributed both property and services to the parties'
    relationship.    She claims that because of these
    contributions the parties' assets increased, but that
    she was never compensated for her contributions. She
    further alleges that the defendant, knowing that the
    plaintiff   expected   to   share  in   the    property
    accumulated, "accepted the services rendered to him by
    the plaintiff" and that it would be unfair under the
    circumstances to allow him to retain everything while
    she receives nothing.     We conclude that the facts
    alleged are sufficient to state a claim for recovery
    based upon unjust enrichment.
Watts, 137 Wis. 2d at 533.

    ¶86    In   the   instant     case,   Sands    pleaded     extensive      facts

spanning approximately eight pages of her complaint supporting

her unjust enrichment claim against Menard.                  Sands alleges in

her complaint as follows:

    [D]uring the eight-year period of Sands's cohabitation
    and engagement with Menard, the substantial and
    continuing efforts of Sands resulted directly in the
    acquisition   of   valuable   property,  wealth,   and
    substantial increase in the net worth of Menard, who
    now attempts to retain not merely an unreasonable
    amount of property, wealth, and increased net worth
    acquired through the efforts of Sands, but all of the
    property, wealth, and increased net worth acquired
    through the efforts of Sands.
Appendix   to   Brief    of   Plaintiff-Appellant-Petitioner           Debra    K.

Sands, Volume I, at A061.

    ¶87    Sands summarized her contributions as follows:

    Sands relied on Menard's promises, representations,
    and conduct, and devoted over eight years to working
                              5
                                                    No.    2012AP2377 & 2015AP870.ssa

    with and helping him in his business and personal
    matters.   Sands contributed to their enterprise in
    numerous ways. She was Menard's life partner, social
    companion, and manager and hostess of his households.
    Sands protected Menard from unwanted approaches by
    serving as a "gate-keeper." She supervised his health
    care and medical needs; managed the remodeling of
    three residences; and advised on the acquisition of
    airplanes and their design and décor.     She provided
    ideas for new products and product lines for the
    Menard, Inc., stores, such as garden centers; and
    scouted and proposed new store locations, store
    layouts, and product displays.         She represented
    Menard, Inc., as a product buyer.     She reviewed and
    suggested changes and additions to Menard, Inc.,
    marketing plans.    She assisted with government and
    public relations. She participated in the redesign of
    store signs and logos.   She helped find new business
    and investment opportunities.    She assisted in the
    management of the Team Menard auto racing venture and
    newly-acquired businesses, including two engine design
    companies in England, a thoroughbred racing business,
    and a $400 million private equity fund. She made her
    joint enterprise with Menard her focus, which occupied
    her every moment.
Brief of Plaintiff-Appellant-Petitioner, Debra K. Sands 14-15.

    ¶88     Construing Sands' complaint liberally and taking all

factual allegations as true (as the court must), I conclude that

Sands    alleged   facts   sufficient        to    state    a   claim    for    unjust

enrichment.

    ¶89     The majority concludes that Sands failed to adequately

plead    unjust    enrichment     by   relying      on     inapposite    cases    and

drawing   distinctions     that    were      not   essential      to    the    court's

holding   in   Watts   vis-à-vis       the   plaintiff's        unjust   enrichment

claim.

    ¶90     The     majority      relies      on     Waage      v.      Borer,     188

Wis. 2d 324, 525 N.W.2d 96 (Ct. App. 1994), and Ward v. Jahnke,
220 Wis. 2d 539, 583 N.W.2d 656 (Ct. App. 1998), asserting that

                                         6
                                                                  No.   2012AP2377 & 2015AP870.ssa


these cases shed light on "the types of facts that must be pled

in order to survive summary judgment."                             Majority op., ¶36.               They

do not.       These cases do not support the majority's position.

       ¶91    In Waage, the court of appeals held that under the

particular facts of that case, the complainant could not recover

on her unjust enrichment claim because "Watts does not recognize

recompense       for       housekeeping               or    other       services        unless       the

services      are    linked         to     an    accumulation            of    wealth        or   assets

during the relationship."                   Waage, 188 Wis. 2d at 330.

       ¶92    Importantly, the Waage court did not conclude that the

complainant had failed to adequately plead unjust enrichment.

Rather, the unjust enrichment claim proceeded to trial, and the

court    of    appeals         held       that    the       complainant         did     not       present

sufficient       evidence            of    any        assets       accumulated          during       the

relationship         as    a        result       of       joint    efforts:             "[Plaintiff]

arguably alleged but did not set forth any evidence to satisfy

[the elements of her unjust enrichment claim]. . . . [Plaintiff]

presented absolutely no evidence of assets accumulated during
their relationship."                Waage, 188 Wis. 2d at 330.                        Simply stated,

Waage has nothing to say about pleading requirements.

       ¶93    The Ward case also did not analyze the sufficiency of

the     complaint.             In     Ward,       the       question          presented       was     the

sufficiency of the evidence produced at trial.

       ¶94    In Ward, the complainant recovered at trial her fair

share of the down payment on the couple's house, but the court

of    appeals       held    that          the    defendant          had       not     been    unjustly
enriched       following        the        purchase         of     the        home.       Ward,       220

                                                      7
                                                           No.    2012AP2377 & 2015AP870.ssa


Wis. 2d at 544-50.             In so holding, the court of appeals pointed

out that the plaintiff's own trial testimony established that

after the couple moved into the home, the couple split household

expenses as evenly as possible, so that a reasonable finder of

fact       could    not     find     that    the    defendant        had       been    unjustly

enriched.          See Ward, 220 Wis. 2d at 550-53.

       ¶95     In     addition       to     relying      on      inapposite       cases,    the

majority misunderstands what facts were relevant to the court's

holding      in     Watts    vis-à-vis       the    plaintiff's          unjust       enrichment

claim.         The     majority       magnifies         differences        in     Sands'    and

Menard's personal relationship and in the personal relationship

of   the     parties      at   the    center       of    Watts.4         For    example,    the

majority points out that unlike in Watts, in which the plaintiff

helped the defendant begin and grow his landscaping business,

Menard was already a multi-millionaire and had been a successful

businessman         for     almost    40    years       when     Sands    and    Menard    met.

Majority op., ¶48.

       ¶96     This reasoning suggests that the court would not have
allowed the unjust enrichment claim in Watts to proceed if the


       4
       The majority appears to acknowledge that the joint
accumulation of property and wealth, not the nature of the
relationship, is the focus of the unjust enrichment claim, see
majority op., ¶¶33-34, 41-42, 44 n.19, 49 n.20, but nonetheless,
the majority places great emphasis on these relationship
differences, see majority op., ¶¶31, 48-49.        The majority
disclaims any reliance on a "checklist" of similarities with the
specific facts of Watts, majority op., ¶40, but that is exactly
what the majority does.     What should readers rely upon for
future cases:    what the majority opinion says or what the
majority opinion does?


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defendant's business had already been established and profitable

at the time the parties cohabitated, as opposed to being built

from scratch by the efforts of both.             Watts does not support

this suggestion.      The fact that Menard was already successful

does not preclude Sands' unjust enrichment claim if Menard's

assets became more valuable as a result of the parties' joint

efforts.

    ¶97     The   majority   also   highlights      that   "Sands   has   not

alleged that during their relationship she and Menard commingled

finances, filed joint tax returns, or made joint purchases of

real and/or personal property.           Sands did not obligate herself

to any business or personal debt Menard incurred."                  Majority

op., ¶49.   These facts are not dispositive of unjust enrichment.

    ¶98     In Watts, we detailed certain aspects of the parties'

relationship, but those facts were not necessary to our holding

on the unjust enrichment issue.       We explained:

    Early in 1969, the parties began living together in a
    "marriage-like" relationship, holding themselves out
    to the public as husband and wife.       The plaintiff
    assumed   the   defendant's   surname   as   her   own.
    Subsequently, she gave birth to two children who were
    also given the defendant's surname. The parties filed
    joint income tax returns and maintained joint bank
    accounts asserting that they were husband and wife.
    The defendant insured the plaintiff as his wife on his
    medical insurance policy.    He also took out a life
    insurance policy on her as his wife, naming himself as
    the beneficiary.     The parties purchased real and
    personal property as husband and wife. The plaintiff
    executed documents and obligated herself on promissory
    notes to lending institutions as the defendant's wife.
Watts, 137 Wis. 2d at 513.



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       ¶99       None of these facts reappears in the analysis of the

plaintiff's unjust enrichment claim.                 See Watts, 137 Wis. 2d at

530-533.         Rather, they were relevant to the plaintiff's claim

that       the     plaintiff,    the     defendant,        and    their     children

constituted a "family," thus entitling her to bring an action

for    property      division    under   Wisconsin's       marriage      dissolution

statute.         Watts, 137 Wis. 2d at 514-15.5

                                         III

       ¶100 This matter is here on summary judgment.                    Although the

majority opinion is confusing, it purports to dismiss Sands'

unjust enrichment claim as inadequately pleaded.                    It nonetheless

impermissibly         ventures   outside       the   pleadings     to     weigh   the

evidence, reaching the conclusion that Sands would not prevail

on the merits of her unjust enrichment claim.6

       5
       In support, the plaintiff relied upon a Washington court
of appeals case with similar facts, Warden v. Warden, 676 P.2d
1037 (Wash. App. 1984). The Washington court of appeals applied
its marriage dissolution statute to divide property acquired by
unmarried cohabitants in what was tantamount to a marital family
except for a legal marriage.     We recognized that "Warden is
remarkably similar on its facts to the instant case.         The
parties in Warden had lived together for 11 years, had two
children, held themselves out as husband and wife, acquired
property together, and filed joint tax returns."      Watts, 137
Wis. 2d at 516.   Thus, the plaintiff in Watts pleaded similar
facts not to support her unjust enrichment claim, but because
she was also arguing that her relationship with the defendant
should be considered a "family" under Wisconsin's marriage
dissolution statute.
       6
           The majority concludes:

       [D]espite the litany of contributions she made, we
       cannot   conclude that   Sands'  contributions   were
       "material" given Menard's wealth and the success of
       his company when the parties met.     In particular,
                                                      (continued)
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                                      No.   2012AP2377 & 2015AP870.ssa


    ¶101 In contrast, I conclude that Sands pleaded sufficient

facts to state a claim for unjust enrichment against Menard.

After reviewing the summary judgment record, viewing all the

evidence in the light most favorable to Sands, and drawing all

reasonable inferences in her favor (as I must), I would hold


    although Sands has listed a series of business
    transactions   in    which   she    "participated" or
    "assisted," she has alleged no facts from which we
    could conclude that her contributions caused an
    increase in Menard's assets or property.

    We are similarly disinclined to conclude that Sands
    has pled sufficient facts which, if true, would
    demonstrate that Menard's acceptance or retention of
    her contributions would be inequitable under the
    circumstances.   In particular, Sands must demonstrate
    that the benefits she conferred to Menard are not
    offset by the benefits she derived from him.    First,
    the record indicates that Sands enjoyed an expansive
    lifestyle as the companion of a wealthy man. Second,
    unlike the plaintiffs in Watts or Ward, Sands did
    receive compensation for some of her services.    Over
    the course of their eight-year relationship, Sands was
    paid $49,635.84 for the balance of her student loans,
    $3,000 to compensate her for "wedding expenses," and
    $152,105 for various legal services.

Majority op., ¶50-51 (footnotes omitted).   The majority noted
specific examples of luxuries enjoyed by Sands as Menard's
companion   including  "multiple  boating  and   skiing  trips,
vacations to St. Martin, London, and Italy, and . . . a Ford
Mustang for Christmas in 2005. They went to horse races, NASCAR
events, and fashion shows, and met prominent political figures
at that time." Majority op., ¶51 n.21.

     Clearly, the majority reaches beyond the pleadings and has
substituted itself as the finder of fact in order to resolve
genuine issues of material fact in favor of Menard.      At this
stage, it is not the court's task to "decide issues of
credibility, weigh the evidence, or choose between differing but
reasonable inferences from the undisputed facts."   Fortier, 164
Wis. 2d at 665.


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that genuine issues of material fact preclude summary judgment.

I would remand Sands' unjust enrichment claim to the circuit

court for trial.

    ¶102 For the reasons set forth, I write separately.

    ¶103 I   am    authorized   to    state   that     Justice   ANN   WALSH

BRADLEY joins this separate writing.




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